S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3807

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2011
                               ___________

Introduced by M. of A. CUSICK -- read once and referred to the Committee
  on Health

AN  ACT  to  amend  the public health law, in relation to establishing a
  prescription monitoring program

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Article 33 of the public health law is amended by adding a
new title 5-A to read as follows:
                                TITLE V-A
                     PRESCRIPTION MONITORING PROGRAM
SECTION 3355. SHORT TITLE.
        3356. DEFINITIONS.
        3357. ESTABLISHMENT OF A PRESCRIPTION MONITORING PROGRAM.
        3358. ADVISORY BOARD.
        3359. REPORTING OF PRESCRIPTION MONITORING INFORMATION.
        3360. ACCESS TO THE PRESCRIPTION MONITORING INFORMATION;  CONFI-
                DENTIALITY.
        3361. EDUCATION AND TREATMENT.
        3362. UNLAWFUL ACTS AND PENALTIES.
        3363. EVALUATION, DATA ANALYSIS AND REPORTING.
        3364. RULES AND REGULATIONS.
        3365. SEVERABILITY.
  S  3355.  SHORT TITLE. THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE
"PRESCRIPTION MONITORING ACT".
  S 3356. DEFINITIONS. 1. "BOARD" MEANS THE ADVISORY  BOARD  ESTABLISHED
UNDER SECTION THIRTY-THREE HUNDRED FIFTY-EIGHT OF THIS TITLE.
  2.  "DISPENSER"  MEANS A PERSON AUTHORIZED IN THIS STATE TO DISTRIBUTE
TO THE ULTIMATE USER A SUBSTANCE MONITORED BY THE PRESCRIPTION  MONITOR-
ING PROGRAM, BUT DOES NOT INCLUDE:
  (A)  A LICENSED HOSPITAL PHARMACY THAT DISTRIBUTES SUCH SUBSTANCES FOR
THE  PURPOSES  OF  INPATIENT  HOSPITAL  CARE  OR   THE   DISPENSING   OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08321-02-1
              

A. 3807                             2

PRESCRIPTIONS  FOR  CONTROLLED  SUBSTANCES AT THE TIME OF DISCHARGE FROM
SUCH A FACILITY;
  (B)  A  LICENSED  NURSE  OR  MEDICATION  AIDE  WHO  ADMINISTERS SUCH A
SUBSTANCE AT THE DIRECTION OF A LICENSED PHYSICIAN; OR
  (C)  A  WHOLESALE  DISTRIBUTOR  OF  A  SUBSTANCE  MONITORED   BY   THE
PRESCRIPTION MONITORING PROGRAM.
  3.  "PRESCRIBER"  MEANS A LICENSED HEALTH CARE PROFESSIONAL WITH PRES-
CRIPTIVE AUTHORITY.
  4. "PRESCRIPTION MONITORING INFORMATION" MEANS  INFORMATION  SUBMITTED
TO AND MAINTAINED BY THE PRESCRIPTION MONITORING PROGRAM.
  5. "PRESCRIPTION MONITORING PROGRAM" MEANS A PROGRAM ESTABLISHED UNDER
SECTION THIRTY-THREE HUNDRED FIFTY-SEVEN OF THIS TITLE.
  S  3357.  ESTABLISHMENT  OF  A PRESCRIPTION MONITORING PROGRAM. 1. THE
DEPARTMENT SHALL ESTABLISH AND MAINTAIN, WITH THE  CONSULTATION  OF  THE
BOARD,  AN  ELECTRONIC  SYSTEM  FOR  MONITORING THE FOLLOWING SUBSTANCES
DISPENSED IN THE  STATE:  FEDERALLY  CONTROLLED  SUBSTANCES,  ADDITIONAL
STATE  SPECIFIED  CONTROLLED SUBSTANCES, AND DRUGS OF CONCERN DOCUMENTED
TO DEMONSTRATE A POTENTIAL FOR ABUSE, PARTICULARLY THOSE  IDENTIFIED  BY
LAW ENFORCEMENT AND ADDICTION TREATMENT PROFESSIONALS.
  2. THE DEPARTMENT MAY CONTRACT WITH A VENDOR TO ESTABLISH AND MAINTAIN
THE  ELECTRONIC  MONITORING  SYSTEM  PURSUANT  TO  GUIDELINES  WHICH THE
DEPARTMENT SHALL PROMULGATE.
  S 3358. ADVISORY BOARD. 1. THERE IS  HEREBY  ESTABLISHED  AN  ADVISORY
BOARD  TO ASSIST THE DEPARTMENT IN CARRYING OUT THE DUTIES OF THIS ARTI-
CLE. THE ADVISORY BOARD SHALL CONSIST OF THE FOLLOWING MEMBERS:
  (A) A REPRESENTATIVE OF THE STATE BOARD OF MEDICINE, APPOINTED BY  THE
BOARD.
  (B)  A REPRESENTATIVE OF THE STATE BOARD OF PHARMACY, APPOINTED BY THE
BOARD.
  (C) A REPRESENTATIVE OF THE STATE BOARD OF DENTAL EXAMINERS, APPOINTED
BY THE BOARD.
  (D) A REPRESENTATIVE OF THE STATE BOARD OF NURSING, APPOINTED  BY  THE
BOARD.
  (E) THE ATTORNEY GENERAL OR HIS OR HER DESIGNEE.
  (F) A REPRESENTATIVE OF THE DEPARTMENT, APPOINTED BY THE COMMISSIONER.
  (G)  A REPRESENTATIVE OF THE NEW YORK STATE MEDICAL SOCIETY, APPOINTED
BY THE SOCIETY.
  (H) A  REPRESENTATIVE  OF  THE  NEW  YORK  STATE  DENTAL  ASSOCIATION,
APPOINTED BY THE ASSOCIATION.
  (I)  A  REPRESENTATIVE  OF THE NEW YORK STATE ASSOCIATION OF CHIEFS OF
POLICE, APPOINTED BY THE ASSOCIATION.
  (J) A REPRESENTATIVE OF RETAIL PHARMACY, APPOINTED  BY  THE  NEW  YORK
STATE PHARMACISTS ASSOCIATION.
  2.  THE  DEPARTMENT  SHALL  SEEK AND THE BOARD SHALL PROVIDE INPUT AND
ADVICE REGARDING THE DEVELOPMENT AND OPERATION OF THE  ELECTRONIC  MONI-
TORING SYSTEM, INCLUDING BUT NOT LIMITED TO:
  (A) WHICH STATE CONTROLLED SUBSTANCES SHOULD BE MONITORED;
  (B)  WHICH  DRUGS  OF  CONCERN  DEMONSTRATE  A POTENTIAL FOR ABUSE AND
SHOULD BE MONITORED;
  (C) DESIGN AND IMPLEMENTATION OF  EDUCATIONAL  COURSES  IDENTIFIED  IN
SECTION THIRTY-THREE HUNDRED SIXTY-ONE OF THIS TITLE;
  (D)  PROPER  ANALYSIS  AND  INTERPRETATION  OF PRESCRIPTION MONITORING
INFORMATION;
  (E) DESIGN AND IMPLEMENTATION OF AN EVALUATION COMPONENT; AND
  (F) POTENTIAL NOMINEES TO THE BOARD.

A. 3807                             3

  S 3359. REPORTING OF  PRESCRIPTION  MONITORING  INFORMATION.  1.  EACH
DISPENSER  SHALL SUBMIT TO THE DEPARTMENT, BY ELECTRONIC MEANS, OR OTHER
FORMAT SPECIFIED IN A WAIVER  GRANTED  BY  THE  DEPARTMENT,  INFORMATION
SPECIFIED BY THE DEPARTMENT, INCLUDING:
  (A) A PATIENT IDENTIFIER,
  (B) THE DRUG PRESCRIBED OR DISPENSED,
  (C) THE DATE OF THE PRESCRIPTION OR DISPENSING,
  (D) THE QUANTITY PRESCRIBED OR DISPENSED,
  (E) THE PRESCRIBER, AND
  (F) THE DISPENSER.
  2.  EACH DISPENSER SHALL SUBMIT THE REQUIRED INFORMATION AS FREQUENTLY
AS SPECIFIED BY THE DEPARTMENT.
  3. THE DEPARTMENT MAY GRANT A WAIVER OF ELECTRONIC SUBMISSION  TO  ANY
DISPENSER FOR GOOD CAUSE, INCLUDING FINANCIAL HARDSHIP, AS DETERMINED BY
THE  DEPARTMENT.  THE  WAIVER  SHALL STATE THE FORMAT AND FREQUENCY WITH
WHICH THE DISPENSER SHALL SUBMIT THE REQUIRED INFORMATION.
  S 3360. ACCESS TO THE PRESCRIPTION MONITORING  INFORMATION;  CONFIDEN-
TIALITY.  1. EXCEPT AS INDICATED IN SUBDIVISIONS TWO, THREE, AND FOUR OF
THIS SECTION,  PRESCRIPTION  MONITORING  INFORMATION  SUBMITTED  TO  THE
DEPARTMENT  SHALL  BE  CONFIDENTIAL  AND  NOT  SUBJECT TO PUBLIC OR OPEN
RECORDS LAWS.
  2. THE DEPARTMENT SHALL REVIEW THE  PRESCRIPTION  MONITORING  INFORMA-
TION.    IF  THERE  IS REASONABLE CAUSE TO BELIEVE A VIOLATION OF LAW OR
BREACH OF OCCUPATIONAL STANDARDS MAY HAVE OCCURRED, THE DEPARTMENT SHALL
NOTIFY THE  APPROPRIATE  LAW  ENFORCEMENT  AND  OCCUPATIONAL  LICENSING,
CERTIFICATION  OR  REGULATORY AGENCY OR ENTITY, AND PROVIDE PRESCRIPTION
MONITORING INFORMATION REQUIRED FOR AN INVESTIGATION.
  3. THE DEPARTMENT MAY PROVIDE PRESCRIPTION MONITORING INFORMATION  FOR
PUBLIC  RESEARCH, POLICY OR EDUCATION PURPOSES, TO THE EXTENT ALL INFOR-
MATION REASONABLY LIKELY TO REVEAL THE PATIENT OR OTHER  PERSON  WHO  IS
THE SUBJECT OF THE INFORMATION HAS BEEN REMOVED.
  4.  THE  FOLLOWING  PERSONS, AFTER SUCCESSFUL COMPLETION OF THE EDUCA-
TIONAL COURSES IDENTIFIED IN SUBDIVISION  ONE  OF  SECTION  THIRTY-THREE
HUNDRED  SIXTY-ONE OF THIS TITLE, MAY ACCESS THE PRESCRIPTION MONITORING
INFORMATION IN THE SAME OR SIMILAR MANNER, AND FOR THE SAME  OR  SIMILAR
PURPOSES, AS THOSE PERSONS ARE AUTHORIZED TO ACCESS SIMILAR CONFIDENTIAL
INFORMATION UNDER FEDERAL AND STATE LAW AND REGULATION.
  (A) A CRIMINAL JUSTICE AGENCY WHICH ENFORCES THE LAWS OF THIS STATE OR
THE UNITED STATES RELATING TO CONTROLLED SUBSTANCES AND WHICH HAS INITI-
ATED AN ACTIVE INVESTIGATION INVOLVING A SPECIFIC VIOLATION OF LAW.
  (B)  A PRACTITIONER, AS DEFINED IN SECTION THIRTY-THREE HUNDRED TWO OF
THIS ARTICLE, OR AN EMPLOYEE OF THE PRACTITIONER WHO IS ACTING ON BEHALF
OF AND AT THE DIRECTION OF THE PRACTITIONER, WHO REQUESTS SUCH  INFORMA-
TION  AND CERTIFIES THAT THE INFORMATION IS NECESSARY TO PROVIDE MEDICAL
TREATMENT TO A CURRENT PATIENT.
  (C) A PHARMACIST, AS DEFINED IN SECTION THIRTY-THREE  HUNDRED  TWO  OF
THIS  ARTICLE, OR A PHARMACY INTERN OR PHARMACY TECHNICIAN WHO IS ACTING
ON BEHALF OF AND AT THE DIRECTION OF THE PHARMACIST, WHO  REQUESTS  SUCH
INFORMATION AND CERTIFIES THAT THE REQUESTED INFORMATION WILL BE USED TO
DISPENSE CONTROLLED SUBSTANCES TO A CURRENT PATIENT.
  (D)  A  PATIENT WHO IS IDENTIFIED IN THE RECORD UPON A WRITTEN REQUEST
FOR THE PURPOSE OF VERIFYING THAT INFORMATION.
  5. A PERSON WHO HAS KNOWLEDGE BY VIRTUE OF HIS OR HER  OFFICE  OF  THE
CONTROLLED  SUBSTANCES  PRESCRIBED TO OR OBTAINED BY A PARTICULAR PERSON
SHALL DISCLOSE SUCH KNOWLEDGE TO A PHARMACY TO INFORM THE PHARMACY  THAT
SUCH PERSON WHO PRESENTS OR HAS PRESENTED A PRESCRIPTION FOR ONE OR MORE

A. 3807                             4

CONTROLLED SUBSTANCES AT THE PHARMACY MAY HAVE ALSO OBTAINED ONE OR MORE
CONTROLLED  SUBSTANCES AT ANOTHER PHARMACY WHERE THE CIRCUMSTANCES INDI-
CATE A POSSIBILITY OF DRUG ABUSE OR DIVERSION,  POTENTIAL  HARM  TO  THE
PERSON, OR SIMILAR GROUNDS UNDER REGULATIONS OF THE COMMISSIONER.
  6.  THE  DEPARTMENT  SHALL BE IMMUNE FROM CIVIL LIABILITY ARISING FROM
INACCURACY OF ANY OF THE INFORMATION SUBMITTED TO THE DEPARTMENT  PURSU-
ANT TO THIS TITLE.
  S 3361. EDUCATION AND TREATMENT. 1. THE DEPARTMENT OF HEALTH SHALL, IN
CONSULTATION WITH THE BOARD, IMPLEMENT THE FOLLOWING EDUCATION COURSES:
  (A)  AN  ORIENTATION  COURSE  DURING  THE  IMPLEMENTATION PHASE OF THE
PRESCRIPTION MONITORING PROGRAM.
  (B) A COURSE FOR PERSONS WHO ARE AUTHORIZED TO ACCESS THE PRESCRIPTION
MONITORING INFORMATION BUT WHO DID NOT PARTICIPATE  IN  THE  ORIENTATION
COURSE.
  (C) A COURSE FOR PERSONS WHO ARE AUTHORIZED TO ACCESS THE PRESCRIPTION
MONITORING  INFORMATION  BUT  WHO HAVE VIOLATED LAWS OR BREACHED OCCUPA-
TIONAL STANDARDS INVOLVING DISPENSING, PRESCRIBING AND USE OF SUBSTANCES
MONITORED BY THE PRESCRIPTION MONITORING PROGRAM.
  (D) A CONTINUING EDUCATION COURSE FOR HEALTH CARE PROFESSIONALS DEVEL-
OPED BY THE AMERICAN SOCIETY OF ADDICTION MEDICINE AND THE STATE MEDICAL
SOCIETY  ON  PRESCRIBING  PRACTICES,  PHARMACOLOGY  AND  IDENTIFICATION,
TREATMENT  AND  REFERRAL  OF  PATIENTS ADDICTED TO OR ABUSING SUBSTANCES
MONITORED BY THE PRESCRIPTION MONITORING PROGRAM.
  WHEN APPROPRIATE, THE DEPARTMENT,  IN  CONSULTATION  WITH  THE  BOARD,
SHALL  DEVELOP  THE  CONTENT OF THE EDUCATION COURSES DESCRIBED IN PARA-
GRAPHS (A), (B) AND (C) OF THIS SUBDIVISION.
  2. THE DEPARTMENT, IN CONSULTATION  WITH  THE  BOARD,  SHALL  STRONGLY
RECOMMEND  THE  APPLICATION  OF A COURSE TO INFORM THE PUBLIC ABOUT USE,
DIVERSION AND ABUSE OF, AND ADDICTION TO, SUBSTANCES  MONITORED  BY  THE
PRESCRIPTION MONITORING PROGRAM.
  3.  THE DEPARTMENT, IN CONSULTATION WITH THE BOARD, SHALL, WHEN APPRO-
PRIATE:
  (A) WORK WITH ASSOCIATIONS FOR IMPAIRED PROFESSIONALS TO ENSURE INTER-
VENTION, TREATMENT AND ONGOING MONITORING AND FOLLOW-UP; AND
  (B) ENSURE THAT INDIVIDUAL PATIENTS WHO ARE IDENTIFIED  AND  WHO  HAVE
BECOME  ADDICTED  TO SUBSTANCES MONITORED BY THE PRESCRIPTION MONITORING
PROGRAM RECEIVE ADDICTION TREATMENT.
  S 3362. UNLAWFUL ACTS AND PENALTIES.  1.  A  DISPENSER  WHO  KNOWINGLY
FAILS TO SUBMIT PRESCRIPTION MONITORING INFORMATION TO THE DEPARTMENT AS
REQUIRED  BY  THIS TITLE SHALL BE SUBJECT TO A FINE OF ONE THOUSAND FIVE
HUNDRED DOLLARS.
  2. A PERSON AUTHORIZED TO  HAVE  PRESCRIPTION  MONITORING  INFORMATION
PURSUANT  TO  THIS  TITLE  WHO  KNOWINGLY  DISCLOSES SUCH INFORMATION IN
VIOLATION OF THIS TITLE SHALL BE SUBJECT  TO  A  FINE  OF  ONE  THOUSAND
DOLLARS.
  3.  A  PERSON  AUTHORIZED  TO HAVE PRESCRIPTION MONITORING INFORMATION
PURSUANT TO THIS TITLE WHO USES SUCH INFORMATION IN A MANNER  OR  FOR  A
PURPOSE  IN  VIOLATION  OF THIS TITLE SHALL BE SUBJECT TO A FINE OF FIVE
HUNDRED DOLLARS.
  S 3363. EVALUATION, DATA ANALYSIS AND  REPORTING.  1.  THE  DEPARTMENT
SHALL,  IN  CONSULTATION  WITH THE BOARD, DESIGN AND IMPLEMENT AN EVALU-
ATION COMPONENT TO IDENTIFY COST-BENEFITS OF THE PRESCRIPTION MONITORING
PROGRAM, AND OTHER INFORMATION RELEVANT TO POLICY, RESEARCH  AND  EDUCA-
TION  INVOLVING  SUBSTANCES  MONITORED  BY  THE  PRESCRIPTION MONITORING
PROGRAM.

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  2. THE DEPARTMENT SHALL REPORT TO THE LEGISLATURE ON A PERIODIC BASIS,
NO LESS THAN ANNUALLY, ABOUT THE  COST-BENEFITS  AND  OTHER  INFORMATION
NOTED IN SUBDIVISION ONE OF THIS SECTION.
  S  3364.  RULES AND REGULATIONS. THE DEPARTMENT SHALL PROMULGATE RULES
AND REGULATIONS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
  S 3365. SEVERABILITY. IF ANY PROVISION OF THIS  TITLE  OR  APPLICATION
THEREOF  TO  ANY  PERSON OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY
SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THE TITLE WHICH CAN
BE GIVEN EFFECT WITHOUT THE INVALID PROVISIONS OR APPLICATIONS,  AND  TO
THIS END THE PROVISIONS OF THIS TITLE ARE SEVERABLE.
  S  2. The department of health shall, within 180 days after the effec-
tive date of this act, and  after  consultation  with  the  Prescription
Monitoring Program Advisory Board, establish regulations requiring phar-
macists  to  access the prescription monitoring program before filling a
prescription for a controlled substance. The department of health  shall
also  establish  protocols to be followed by pharmacists after accessing
such information.
  S 3. The Prescription Monitoring Program Advisory Board shall,  within
180  days after the effective date of this act, make recommendations and
submit a written report to the legislature concerning integrating  pres-
cribers  into the electronic submission requirements of the prescription
monitoring program as well as any possible changes to the  official  New
York  state  prescription form for controlled substances to include more
information concerning a patient's controlled substance use.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law.