The Kentucky Attorney General published a formal opinion yesterday confirming that the Board of Pharmacy cannot require the licensure of pharmacists who reside outside of the Commonwealth of Kentucky. The proposed regulations, previously discussed here, would have made Kentucky the first Board in the nation to require all non-resident pharmacists providing pharmacy services for Kentucky residents to hold a Kentucky license.
The Kentucky Attorney General was asked to render a formal opinion by Representative Derek Lewis in his capacity as the Co-Chair of the Administrative Regulation Review Subcommittee. The two questions posed were:
- Does the Kentucky Board of Pharmacy have any authority to regulate non-resident pharmacists beyond what is specifically stated in KRS Chapter 315?
- Does the Board have authority to mandate in-state licensing of non-resident pharmacists, generally, and as proposed in the amendment to 201 KAR 2:030, specifically?
The Attorney General’s Opinion confirmed that the answers to both questions were no. Based on the statutory text and canons of statutory construction, the Board lacked the legal authority to impose licensure requirements on pharmacists outside of its borders. The full text of the AG’s opinion is available here.
Because the Attorney General’s Opinion resolved the threshold statutory authority question, it did not need to opine on other legal concerns with the proposed regulation. Chief among those concerns was that the Board’s proposed regulations violated the Dormant Commerce Clause of the U.S. Constitution by imposing significant burdens to interstate commerce.
