New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on October 17, 2005, representing the position of the New York State Insurance Department.

Re: Drug Enforcement Administration, Controlled Substance Registration.

Question Presented:

May an insurer which provides prescription drug coverage refuse to reimburse an insured or subscriber for a prescription drug because the health care provider prescribing the drug does not have a registration number issued by the Drug Enforcement Administration (DEA) of the United States Department of Justice?

Conclusion:

Even if the health care provider does not have a DEA registration number and the drug is not a "controlled substance", the insurer, including a Health Maintenance Organization, may not refuse to reimburse the insured or subscriber for a covered prescription drug.

Facts Presented:

When a patient who has prescription drug coverage under his or her health insurance policy or contract attempts to fill the prescription, in many instances the pharmacist informs the customer that, while the prescription would be filled, the insurer or HMO would not reimburse for the drug because prescribing health care professional (who is a licensed optometrist) did not have a registration number issued by the DEA.

Analysis:

The privilege of optometrists to prescribe drugs is governed by New York Education Law § 7101-a (McKinney 2002), which sets forth those drugs that may be prescribed by optometrists and the additional educational requirements that must be met before an optometrist may be certified to prescribe the specified drugs. None of the drugs specified in New York Education Law § 7010-a(1) are "controlled substances" as listed in 21 U.S.C.A. § 812 (West 1999) or New York Public Health Law § 3306 (McKinney 2002 and 2005 Supplement).

In accordance with 21 U.S.C.A. § 822 (West 1999) and New York Public Health Law § 3301 only individuals who are appropriately registered may prescribe controlled substances. The regulation promulgated by the United States Attorney General to effectuate the above restriction, 21 C.F.R. § 1306.03(a) (1997), provides:

A prescription for a controlled substance may be issued only by an individual practitioner who is: (1) authorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and (2) either registered or exempted from registration pursuant to §§ 1301.22(c) and 1301.23 of this chapter.

Practitioners who are authorized to prescribe controlled substances are defined in New York Education Law § 3302(29) (McKinney 2002 and 2005 Supplement):

‘Practitioner’ means: A physician, dentist, podiatrist, veterinarian, scientific investigator, or other person licensed, or otherwise permitted to dispense, administer or conduct research with respect to a controlled substance in the course of a licensed professional practice or research licensed pursuant to this article. . . .

Since optometrists are not authorized to prescribe controlled substances in New York, they are not subject to registration by the DEA.

A Consensus Statement issued by the DEA and several associations of health care providers, including the American Optometric Association, concludes:

It is therefore agreed to and affirmed by the listed entities that the use of the DEA number for uses other than its original intention [regulate the use of controlled substances] should be eliminated through appropriate public policy initiatives . . . .

Based upon the above, it would be improper for an insurer, including an HMO, which issues prescription drug coverage to refuse to provide coverage for a covered drug, other than a controlled substance, which has been properly prescribed by a health care provider merely because that health care provider has not registered with the DEA.

For further information you may contact Principal Attorney Alan Rachlin at the New York City office.