S2942-2013 - NY Senate Open Legislation - Relates to criminal diversion of prescription medications and prescriptions, establishing certain other offenses related thereto

Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.

Sponsor: HANNON

Co-sponsor(s): GALLIVAN, GRISANTI, LANZA, MARTINS, MAZIARZ, RANZENHOFER, YOUNG, ZELDIN

Committee: CODES
Law Section: Penal Law
Law: Amd SS178.00 - 178.25, add S178.30, Art 179 SS179.00 - 179.15, Art 219 Title M SS219.00 - 219.30, Pen L

S2942-2013 Actions

Mar 12, 2013: referred to codes
Mar 12, 2013: DELIVERED TO ASSEMBLY
Mar 12, 2013: PASSED SENATE
Mar 5, 2013: ADVANCED TO THIRD READING
Mar 4, 2013: 2ND REPORT CAL.
Feb 28, 2013: 1ST REPORT CAL.130
Jan 25, 2013: REFERRED TO CODES

S2942-2013 Meetings

Codes: Feb 28, 2013

S2942-2013 Calendars

Active List: Mar 12, 2013 , Floor Calendar: Mar 4, 2013 , Floor Calendar: Mar 5, 2013 , Floor Calendar: Mar 6, 2013 , Floor Calendar: Mar 7, 2013 , Floor Calendar: Mar 11, 2013 , Floor Calendar: Mar 12, 2013

S2942-2013 Votes

VOTE: COMMITTEE VOTE: - Codes - Feb 28, 2013

Ayes (14): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Smith, Perkins, Espaillat, Sampson, O'Brien
Ayes W/R (2): Squadron, Hoylman

VOTE: FLOOR VOTE: - Mar 12, 2013

Ayes (60): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Mara, Parker, Peralta, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Young, Zeldin
Excused (3): O'Brien, Perkins, Valesky

S2942-2013 Memo

BILL NUMBER:S2942

TITLE OF BILL:  An act to amend the penal law, in relation to criminal
diversion of prescription medications and prescriptions, establishing
the offense of fraudulent prescription, dispensing and procurement of
non-controlled substance prescription medications and devices, and
establishing the offense of unlawful possession of non-controlled
substance prescription medications and devices

PURPOSE:  This bill would address the growing black market in
prescription drugs by restructuring the existing crime of criminal
diversion of prescription medications and adding a new Penal Law article
179 entitled Fraudulent Prescription, Dispensing and Procurement of
Non-controlled Substance Prescription Medications and Devices, and a new
article 219 entitled unlawful possession of non-controlled substance
prescription medications and devices.

SUMMARY OF PROVISIONS:

Sections 1 through 7 of the bill restructure the existing crime of crim-
inal diversion of prescription medications and prescriptions by amending
Penal Law ("PL") �� 178.00, 178.05, 178.10, 178.15, 178.20 and 178.25,
and by adding a new section 178.30. This restructuring enhances sanc-
tions when unlawful criminal diversion acts are committed on multiple
occasions within a given period of time and when such acts are committed
by a physician, pharmacist or other person authorized to issue a
prescription or to dispense prescription medications and devices.
Section 178.00 is amended to clarify that transactions with undercover
agents may also be also be prosecuted under this section if the dealer
believes, or has reasonable basis to believe, that the officer is some-
one who is not authorized by law to sell or transfer the prescription
form, prescription medication or device. Section 178.05 is amended to
clarify that those seeking to obtain a lawful prescription or
prescription medication, and those seeking to assist such persons, are
exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent
Prescription, Dispensing and Procurement of Non-controlled substance
Prescription Medications and Devices. This Article New PL � 179.00
establishes the crime of fraudulent prescription, dispensing and
procurement of non-controlled substance prescription medications and
devices in the first, second and third degree. Generally, this crime
prohibits:

* Issuance of a prescription; 1) when the issuer is not duly licensed
and authorized to do so, 2)with knowledge or reasonable grounds to know
that the prescription is not medically necessary, or 3) when issued
other than good faith;

* Dispensing of a non-controlled substance; 1)with knowledge or reason-
able grounds to know that the person for whom the medication has been

prescribed has no medical need, 2) when the prescription was not issued
by a duly licensed physician or other person authorized, 3) when the
prescription was forged, or 4) when the prescription was written by a
physician or other authorized individual not acting in good faith; and,

* Presenting or submitting a prescription, or receiving a non-controlled
substance or device from a pharmacist with knowledge or reasonable
grounds to know that the prescription was not duly issued and authorized
to an individual with a medical need for prescription.

Fraudulent prescription, dispensing and procurement of a non-controlled
substance prescription in the first degree is a class B felony, in the
second degree is a class C felony, and in the third degree is a class D
felony.

Section 9 of the bill adds a new PL Article 219 entitled Unlawful
Possession of Non-Controlled Substance Prescription Medications and
Devices. This Article defines terms for purposes therein, sets out limi-
tations its applicability, and establishes the crime of unlawful
possession of non- controlled substance prescription medications and
devices in the fifth to first degrees.

JUSTIFICATION:  Expensive non-controlled substance prescription medica-
tions such as AIDS medication, asthma medication, and anti-psychotic
medication have obtained a high street value, making, them particularly
popular on the black-market in the last few years. This exploding black-
market in non-controlled substance prescription medications is well
documented. Last April, New York authorities arrested four individuals
heading a black market HIV/AIDS prescription drug scam which cost the
Medicaid program an estimated $150 million. These individuals were
charged with grand larceny, criminal diversion, money laundering and
conspiracy, among other felonies. In May, 14 individuals in Manhattan
were charged in a massive illegal prescription pill diversion and
distribution scheme that distributed over 10,000 pills weekly. In July,
the U.S. Attorney announced charges against 48 individuals in a
prescription fraud ring. One of the primary drugs targeted by this group
was the HIV drug Atripla, which has a Medicaid reimbursement value of
$1,635 per bottle. Then this October, Attorney General Eric T. Schneid-
erman announced a $1.2 million dollar settlement with NYC pharmacist who
sold these black market medications.

As the New York Times reports, these "different sort of drug deals"
usually occur on the street or at the train station when an individual,
pharmacy bag in hand, passes through - either intentionally, or uninten-
tionally - a gantlet of dealers. The individuals are approached and
asked if they have prescription drugs to sell. The sought after, expen-
sive medications with a high street value are most often paid for with
Medicaid dollars and sold on the street for a fraction of their actual
value. The purchasers of these medications bring the medications to a
stash house where they are collected and re-sold back to unscrupulous
pharmacies or shipped overseas.

There are many negative and severe consequences resulting from these
black market deals, which include: sick patients not taking their medi-
cations; unsuspecting patients purchasing black market drugs from their
pharmacy which have not been properly stored and maintained; and, Medi-
caid paying huge sums for medications that are dispensed under these
fraudulent circumstances.

An unscrupulous pharmacy can charge Medicaid for medicine that it has
purchased at a significantly lower price through the black market.  Most
likely Medicaid has already paid for this same medicine on an earlier
occasion when it was originally dispensed to the patient who subsequent-
ly sold the medicine on the street.

Current law does not contemplate a large-scale illegal market of these
drugs. As a result, there is either no penalty or insufficient penalties
for the following conduct:

* repeated purchases of non-controlled substance prescription medica-
tions from someone not authorized to sell or transfer the medication
(the dealers who buy the medications and enter them into the black
market);

* possession of large quantities of non-controlled substance
prescription medications by someone with no lawful basis for the
prescription (the people who have the stash houses for the black market
medicine);

* the writing of fraudulent prescriptions by physicians to "patients"
with no medical need for the medication; and

* the purchasing or dispensing of medications by pharmacists who have
obtained the medication through the black market.

The gaps in existing law and the growth of this black market make it
self-evident that change is necessary. This legislation will address
this by increasing, or establishing, criminal penalties that better fit
these crimes. In addition to making sure sick patients take necessary
medication and that pharmacies are not selling black market drugs, this
bill will save the Medicaid program millions a year. It is estimated
that the prosecution of just 5 doctors who are unlawfully prescribing
non-controlled substances could save Medicaid $3.5 million a year.

LEGISLATIVE HISTORY:  2012: S.5260-C passed Senate 2011: S.5260-B passed
Senate

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE:  This act shall take effect 90 days after becoming a
law.

S2942-2013 Text


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

                                    2942

                         2013-2014 Regular Sessions

                              I N  SENATE

                              January 25, 2013
                                 ___________

  Introduced  by  Sens.  HANNON,  GALLIVAN,  GRISANTI,  MARTINS,  MAZIARZ,
    RANZENHOFER, YOUNG, ZELDIN -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the penal law, in  relation  to  criminal  diversion  of
    prescription  medications  and prescriptions, establishing the offense
    of fraudulent prescription, dispensing and  procurement  of  non-cont-
    rolled  substance prescription medications and devices, and establish-
    ing the offense of unlawful  possession  of  non-controlled  substance
    prescription medications and devices

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


    Section 1.  Section 178.00 of the penal law, as added by chapter 81 of
  the laws of 1995, is amended to read as follows:

  S 178.00 Criminal   diversion   of    prescription    medications    and
             prescriptions; definitions.
    The following definitions are applicable to this article:

    1.  "Prescription  medication or device" means any article for which a
  prescription is required in order to  be  lawfully  sold,  delivered  or
  distributed by any person authorized by law to engage in the practice of
  the profession of pharmacy.
    2.  "Prescription"  means  a  direction or authorization by means of a
  written  prescription  form,  ELECTRONIC   PRESCRIPTION   or   an   oral
  prescription  which  permits  a person to lawfully obtain a prescription
  medication or  device  from  any  person  authorized  to  dispense  such
  prescription medication or device.
    3.  "PRESCRIPTION  FORM"  MEANS  AN  OFFICIAL  STATE PRESCRIPTION FORM
  AUTHORIZED BY A STATE FOR USE  BY  HEALTH  PRACTITIONERS  AUTHORIZED  TO
  WRITE PRESCRIPTIONS.
    4.  "Criminal  diversion  act"  means an act or acts in which a person
  knowingly:


   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01675-02-3

 S. 2942                             2

    (a) transfers or delivers,  in  exchange  for  anything  of  pecuniary
  value,  a prescription medication or device with knowledge or reasonable
  grounds to know that the recipient has no medical need for it; or
    (b)   receives,  in  exchange  for  anything  of  pecuniary  value,  a
  prescription medication or device with knowledge or  reasonable  grounds
  to  know  that the seller or transferor is not authorized by law to sell
  or transfer such prescription medication or device; or
    (c)  RECEIVES,  IN  EXCHANGE  FOR  ANYTHING  OF  PECUNIARY  VALUE,   A
  PRESCRIPTION  MEDICATION  OR  DEVICE, PRESCRIPTION, OR PRESCRIPTION FORM
  FROM A LAW ENFORCEMENT OFFICER ACTING IN AN UNDERCOVER CAPACITY  OR  HIS
  OR  HER AGENT, BELIEVING OR HAVING REASONABLE GROUND TO BELIEVE THAT THE
  OFFICER OR HIS OR HER AGENT IS SOMEONE WHO IS NOT AUTHORIZED BY  LAW  TO
  SELL  OR  TRANSFER SUCH PRESCRIPTION MEDICATION OR DEVICE, PRESCRIPTION,
  OR PRESCRIPTION FORM; OR
    (D) transfers or delivers  a  prescription  OR  PRESCRIPTION  FORM  in
  exchange for anything of pecuniary value; or
    [(d)] (E) receives a prescription OR PRESCRIPTION FORM in exchange for
  anything of pecuniary value.
    S  2.  Paragraph  (c)  of subdivision 1 of section 178.05 of the penal
  law, as added by chapter 81 of the laws of 1995, is amended and two  new
  paragraphs (d) and (e) are added to read as follows:

    (c)  a  person  acting  in  good faith WHO IS seeking [treatment for a
  medical condition or assisting another person to obtain treatment for  a
  medical  condition] TO OBTAIN A PRESCRIPTION, PRESCRIPTION MEDICATION OR
  DEVICE THAT HAS BEEN LAWFULLY PRESCRIBED TO HIM OR HER, AND FOR WHICH HE
  OR SHE HAS A MEDICAL NEED; OR
    (D) A PERSON ACTING IN GOOD FAITH, WHO REASONABLY BELIEVES THAT HE  OR
  SHE  IS  ASSISTING ANOTHER PERSON TO OBTAIN A PRESCRIPTION, PRESCRIPTION
  MEDICATION OR DEVICE THAT HAS BEEN LAWFULLY  PRESCRIBED  TO  THAT  OTHER
  PERSON; OR
    (E)  A DULY REGISTERED MANUFACTURER OR WHOLESALER OF DRUGS, AS DEFINED
  IN ARTICLE ONE HUNDRED THIRTY-SEVEN OF THE EDUCATION LAW, ACTING IN GOOD
  FAITH IN THE LAWFUL COURSE OF HIS OR HER BUSINESS.
    S 3. Section 178.10 of the penal law, as added by chapter  81  of  the
  laws of 1995, is amended to read as follows:

  S 178.10 Criminal    diversion    of    prescription   medications   and
             prescriptions in the [fourth] FIFTH degree.
    A person is guilty of criminal diversion of  prescription  medications
  and  prescriptions in the [fourth] FIFTH degree when he or she commits a
  criminal diversion act.
    Criminal diversion of prescription medications  and  prescriptions  in
  the [fourth] FIFTH degree is a class A misdemeanor.
    S  4.  Section  178.15 of the penal law, as added by chapter 81 of the
  law of 1995, is amended to read as follows:

  S 178.15 Criminal   diversion   of    prescription    medications    and
             prescriptions in the [third] FOURTH degree.
    A  person  is guilty of criminal diversion of prescription medications
  and prescriptions in the [third] FOURTH degree when he or she:

    1. commits a criminal diversion act, and  the  value  of  the  benefit
  exchanged is in excess of one thousand dollars; or
    2. commits the crime of criminal diversion of prescription medications
  and  prescriptions in the [fourth] FIFTH degree, and has previously been
  convicted of [the crime of criminal diversion  of  prescription  medica-
  tions and prescriptions in the fourth degree] AN OFFENSE DEFINED IN THIS
  ARTICLE; OR

 S. 2942                             3

    3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
  AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
  THIRTY-FIVE DAY PERIOD.
    Criminal  diversion  of  prescription medications and prescriptions in
  the [third] FOURTH degree is a class E felony.
    S 5.  Section 178.20 of the penal law, as added by chapter 81  of  the
  laws of 1995, is amended to read as follows:

  S 178.20 Criminal    diversion    of    prescription   medications   and
             prescriptions in the [second] THIRD degree.
    A person is guilty of criminal diversion of  prescription  medications
  and prescriptions in the [second] THIRD degree when he or she:

    1.  commits  a  criminal  diversion  act, and the value of the benefit
  exchanged is in excess of three thousand dollars; OR
    2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
  AND PRESCRIPTIONS IN THE FIFTH DEGREE ON FOUR OR MORE OCCASIONS  OVER  A
  THIRTY-FIVE DAY PERIOD; OR
    3.    COMMITS  THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICA-
  TIONS AND PRESCRIPTIONS IN THE FIFTH DEGREE, AND IS:

    (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
    (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
  MEDICATIONS AND DEVICES.
    Criminal  diversion  of  prescription medications and prescriptions in
  the [second] THIRD degree is a class D felony.
    S 6. Section 178.25 of the penal law, as added by chapter  81  of  the
  laws of 1995, is amended to read as follows:

  S 178.25 Criminal    diversion    of    prescription   medications   and
             prescriptions in the [first] SECOND degree.
    A person is guilty of criminal diversion of  prescription  medications
  and prescriptions in the [first] SECOND degree when he or she:

    1.  commits  a  criminal  diversion  act, and the value of the benefit
  exchanged is in excess of fifty thousand dollars; OR
    2. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
  AND PRESCRIPTIONS IN THE FIFTH DEGREE ON SIX OR MORE  OCCASIONS  OVER  A
  THIRTY-FIVE DAY PERIOD; OR
    3. COMMITS THE CRIME OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS
  AND  PRESCRIPTIONS  IN  THE FIFTH DEGREE ON TWO OR MORE OCCASIONS OVER A
  NINETY DAY PERIOD, AND IS:

    (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
    (B) A PHARMACIST OR OTHER PERSON AUTHORIZED TO  DISPENSE  PRESCRIPTION
  MEDICATIONS AND DEVICES.
    Criminal  diversion  of  prescription medications and prescriptions in
  the [first] SECOND degree is a class C felony.
    S 7. The penal law is amended by adding a new section 178.30  to  read
  as follows:

  S 178.30 CRIMINAL    DIVERSION    OF    PRESCRIPTION   MEDICATIONS   AND
             PRESCRIPTIONS IN THE FIRST DEGREE.
    A PERSON IS GUILTY OF CRIMINAL DIVERSION OF  PRESCRIPTION  MEDICATIONS
  AND  PRESCRIPTIONS  IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME
  OF CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  OR  PRESCRIPTIONS  IN
  THE FIFTH DEGREE ON FIVE OR MORE OCCASIONS OVER A NINETY DAY PERIOD, AND
  IS:

    (A) A PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION; OR
    (B)  A  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE PRESCRIPTION
  MEDICATIONS AND DEVICES.
    CRIMINAL DIVERSION OF PRESCRIPTION MEDICATIONS  AND  PRESCRIPTIONS  IN
  THE FIRST DEGREE IS A CLASS B FELONY.

 S. 2942                             4

    S  8.  The penal law is amended by adding a new article 179 to read as
  follows:

                                 ARTICLE 179
           FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF
        NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
  SECTION 179.00 DEFINITIONS.
          179.05 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                   NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                   DEVICES IN THE THIRD DEGREE.
          179.10 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                   NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                   DEVICES IN THE SECOND DEGREE.
          179.15 FRAUDULENT  PRESCRIPTION,  DISPENSING  AND PROCUREMENT OF
                   NON-CONTROLLED SUBSTANCE PRESCRIPTION  MEDICATIONS  AND
                   DEVICES IN THE FIRST DEGREE.
  S 179.00 DEFINITIONS.
    THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:

    1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
  PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
  DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
  THE PROFESSION OF PHARMACY.
    2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
  WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
  PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
  MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
  PRESCRIPTION MEDICATION OR DEVICE.
    3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
  II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
  HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
  DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
  HUNDRED TWO OF SUCH LAW.
    4.   "DISPENSING"  AND  "DISPENSES"  REFER  TO  THE  DISPENSING  OF  A
  PRESCRIPTION MEDICATION OR DEVICE FROM OR WITHIN A  PHARMACY,  HOSPITAL,
  PHYSICIAN'S OFFICE, CLINIC OR OTHER PHARMACEUTICAL OR MEDICAL FACILITY.
  S 179.05 FRAUDULENT   PRESCRIPTION,   DISPENSING   AND   PROCUREMENT  OF
             NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
             IN THE THIRD DEGREE.
    A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
  MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
  THE THIRD DEGREE WHEN HE OR SHE:

    1. ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR  A  NON-CONT-
  ROLLED  SUBSTANCE  PRESCRIPTION  MEDICATION OR DEVICE, AND IS NOT A DULY
  LICENSED  PHYSICIAN  OR  OTHER   PERSON   AUTHORIZED   TO   ISSUE   SUCH
  PRESCRIPTION; OR
    2.  DISPENSES  A  NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATION OR
  DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:

    (A) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
  HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
    (B) NO PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A DULY
  LICENSED   PHYSICIAN   OR   OTHER   PERSON   AUTHORIZED  TO  ISSUE  SUCH
  PRESCRIPTION; OR
    (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
    (D) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE  WAS  ISSUED  BY  A
  DULY  LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE SUCH
  PRESCRIPTION WHO WAS ACTING OTHER THAN  IN  GOOD  FAITH  IN  THE  LAWFUL
  COURSE OF HIS OR HER PROFESSIONAL PRACTICE; OR

 S. 2942                             5

    3.  PRESENTS  OR SUBMITS A PRESCRIPTION FOR A NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATION OR  DEVICE  TO,  OR  RECEIVES  A  NON-CONTROLLED
  SUBSTANCE  PRESCRIPTION MEDICATION OR DEVICE FROM, A DULY LICENSED PHAR-
  MACIST OR OTHER PERSON AUTHORIZED TO DISPENSE SUCH PRESCRIPTION  MEDICA-
  TION OR DEVICE, WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:

    (A)  THE  PERSON FOR WHOM THE MEDICATION OR DEVICE HAS BEEN PRESCRIBED
  HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
    (B) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY A
  DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
  PRESCRIPTION; OR
    (C) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
    (D)  THE  PRESCRIPTION  FOR  SUCH MEDICATION OR DEVICE WAS ISSUED BY A
  DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
  PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
  COURSE OF HIS OR HER PROFESSIONAL PRACTICE.
    FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
  SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE IS A
  CLASS D FELONY.
  S 179.10 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
             NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
             IN THE SECOND DEGREE.
    A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
  MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
  THE SECOND DEGREE WHEN HE OR SHE:

    1. BEING A DULY LICENSED PHYSICIAN OR OTHER PERSON AUTHORIZED TO ISSUE
  A  PRESCRIPTION, ISSUES A WRITTEN, ELECTRONIC OR ORAL PRESCRIPTION FOR A
  NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE, OR DISPENSES
  A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:

    (A) WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT THE  PERSON  FOR
  WHOM THE PRESCRIPTION IS ISSUED, OR TO WHOM THE MEDICATION IS DISPENSED,
  HAS  NO  MEDICAL  NEED  FOR  THE  MEDICATION  OR  DEVICE  THAT  IS BEING
  PRESCRIBED; OR
    (B) OTHER THAN IN GOOD FAITH IN  THE  LAWFUL  COURSE  OF  HIS  OR  HER
  PROFESSIONAL PRACTICE; OR
    2.  BEING  A  DULY  LICENSED  PHARMACIST OR OTHER PERSON AUTHORIZED TO
  DISPENSE A PRESCRIPTION MEDICATION OR DEVICE, DISPENSES A NON-CONTROLLED
  SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE:

    (A) WITH KNOWLEDGE OR REASONABLE GROUNDS TO KNOW THAT:

    (I) THE PERSON FOR WHOM THE MEDICATION OR DEVICE HAS  BEEN  PRESCRIBED
  HAS NO MEDICAL NEED FOR SUCH MEDICATION OR DEVICE; OR
    (II)  THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS NOT ISSUED BY
  A DULY LICENSED PHYSICIAN OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
  PRESCRIPTION; OR
    (III) THE PRESCRIPTION FOR SUCH MEDICATION OR DEVICE WAS FORGED; OR
    (IV)  THE  PRESCRIPTION  FOR SUCH MEDICATION OR DEVICE WAS ISSUED BY A
  DULY LICENSED  PHYSICIAN  OR  OTHER  PERSON  AUTHORIZED  TO  ISSUE  SUCH
  PRESCRIPTION  WHO  WAS  ACTING  OTHER  THAN  IN GOOD FAITH IN THE LAWFUL
  COURSE OF HIS OR HER PROFESSIONAL PRACTICE; OR
    (B) OTHER THAN IN GOOD FAITH, IN THE  COURSE  OF  HIS  OR  HER  LAWFUL
  PROFESSIONAL PRACTICE.
    FRAUDULENT  PRESCRIPTION, DISPENSING AND PROCUREMENT OF NON-CONTROLLED
  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE IS A
  CLASS C FELONY.
  S 179.15 FRAUDULENT  PRESCRIPTION,   DISPENSING   AND   PROCUREMENT   OF
             NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES
             IN THE FIRST DEGREE.

 S. 2942                             6

    A PERSON IS GUILTY OF FRAUDULENT PRESCRIPTION, DISPENSING AND PROCURE-
  MENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES IN
  THE  FIRST DEGREE WHEN HE OR SHE, BEING EITHER A DULY LICENSED PHYSICIAN
  OR OTHER PERSON AUTHORIZED TO ISSUE A PRESCRIPTION, OR A  DULY  LICENSED
  PHARMACIST OR OTHER PERSON AUTHORIZED TO DISPENSE A PRESCRIPTION MEDICA-
  TION OR DEVICE, COMMITS THE CRIME OF FRAUDULENT PRESCRIPTION, DISPENSING
  AND PROCUREMENT OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
  DEVICES  IN  THE  SECOND DEGREE ON TWO OR MORE OCCASIONS WITHIN A NINETY
  DAY PERIOD.
    FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF  NON-CONTROLLED
  SUBSTANCE  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIRST DEGREE IS A
  CLASS B FELONY.
    S 9. Title M of the penal law is amended by adding a new  article  219
  to read as follows:

                                 ARTICLE 219
        UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
                           MEDICATIONS AND DEVICES
  SECTION 219.00 DEFINITIONS.
          219.05 LIMITATIONS ON APPLICATION OF ARTICLE.
          219.10 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                   PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIFTH
                   DEGREE.
          219.15 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                   PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  FOURTH
                   DEGREE.
          219.20 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                   PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  THIRD
                   DEGREE.
          219.25 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                   PRESCRIPTION MEDICATIONS  AND  DEVICES  IN  THE  SECOND
                   DEGREE.
          219.30 UNLAWFUL    POSSESSION    OF   NON-CONTROLLED   SUBSTANCE
                   PRESCRIPTION  MEDICATIONS  AND  DEVICES  IN  THE  FIRST
                   DEGREE.
  S 219.00 DEFINITIONS.
    THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:

    1.  "PRESCRIPTION  MEDICATION OR DEVICE" MEANS ANY ARTICLE FOR WHICH A
  PRESCRIPTION IS REQUIRED IN ORDER TO  BE  LAWFULLY  SOLD,  DELIVERED  OR
  DISTRIBUTED BY ANY PERSON AUTHORIZED BY LAW TO ENGAGE IN THE PRACTICE OF
  THE PROFESSION OF PHARMACY.
    2.  "PRESCRIPTION"  MEANS  A  DIRECTION OR AUTHORIZATION BY MEANS OF A
  WRITTEN  PRESCRIPTION  FORM,  AN  ELECTRONIC  PRESCRIPTION  OR  AN  ORAL
  PRESCRIPTION  WHICH  PERMITS  A PERSON TO LAWFULLY OBTAIN A PRESCRIPTION
  MEDICATION OR  DEVICE  FROM  ANY  PERSON  AUTHORIZED  TO  DISPENSE  SUCH
  PRESCRIPTION MEDICATION OR DEVICE.
    3.  "CONTROLLED  SUBSTANCE"  MEANS ANY SUBSTANCE LISTED IN SCHEDULE I,
  II, III, IV OR V OF SECTION  THIRTY-THREE  HUNDRED  SIX  OF  THE  PUBLIC
  HEALTH  LAW OTHER THAN MARIHUANA, BUT INCLUDING CONCENTRATED CANNABIS AS
  DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  SECTION  THIRTY-THREE
  HUNDRED TWO OF SUCH LAW.
    4.  THE  VALUE  OF A PRESCRIPTION MEDICATION OR DEVICE SHALL BE EQUIV-
  ALENT TO THE FAIR MARKET VALUE OF  SUCH  MEDICATION  OR  DEVICE  ON  THE
  LAWFUL  RETAIL  MARKET,  AT  ABOUT  THE TIME AND PLACE THAT THE CRIME IS
  COMMITTED.
  S 219.05 LIMITATIONS ON APPLICATION OF ARTICLE.

 S. 2942                             7

    THE PROVISIONS OF THIS ARTICLE RESTRICTING THE UNLAWFUL POSSESSION  OF
  NON-CONTROLLED  SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES SHALL NOT
  APPLY:

    1.  TO  COMMON  CARRIERS OR TO WAREHOUSEMEN, WHILE ENGAGED IN LAWFULLY
  TRANSPORTING OR STORING SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDI-
  CATIONS AND DEVICES, OR TO ANY EMPLOYEE OF THE SAME  ACTING  WITHIN  THE
  SCOPE OF HIS OR HER EMPLOYMENT; OR
    2.  TO PUBLIC OFFICERS OR THEIR EMPLOYEES IN THE LAWFUL PERFORMANCE OF
  THEIR OFFICIAL DUTIES  REQUIRING  THE  POSSESSION  OR  CONTROL  OF  SUCH
  NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
    3.  TO  TEMPORARY  INCIDENTAL  POSSESSION  BY  EMPLOYEES  OR AGENTS OF
  PERSONS LAWFULLY  ENTITLED  TO  POSSESS  SUCH  NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION  MEDICATIONS AND DEVICES, OR BY PERSONS WHOSE POSSESSION IS
  FOR THE PURPOSE OF AIDING PUBLIC OFFICERS IN PERFORMING  THEIR  OFFICIAL
  DUTIES; OR
    4.  TO  A  DULY  LICENSED PHYSICIAN, DULY LICENSED PHARMACIST OR OTHER
  PERSON AUTHORIZED TO POSSESS OR DISPENSE SUCH  NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES, ACTING IN GOOD FAITH IN THE LAWFUL
  COURSE OF HIS OR HER PROFESSION; OR
    5. TO TEMPORARY INCIDENTAL POSSESSION BY A PERSON ACTING IN GOOD FAITH
  WHO  REASONABLY  BELIEVES  THAT HE OR SHE IS ASSISTING ANOTHER PERSON TO
  OBTAIN A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATION OR DEVICE THAT
  HAS BEEN LAWFULLY PRESCRIBED TO THAT OTHER PERSON.
  S 219.10 UNLAWFUL POSSESSION OF  NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
             MEDICATIONS AND DEVICES IN THE FIFTH DEGREE.
    A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES  IN  THE  FIFTH  DEGREE  WHEN  SUCH
  PERSON   KNOWINGLY   POSSESSES  ONE  OR  MORE  NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION MEDICATIONS OR DEVICES WHICH WERE NOT  LAWFULLY  PRESCRIBED
  TO  HIM OR HER, UNDER CIRCUMSTANCES EVINCING AN INTENT TO SELL THE SAME;
  AND
    1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
  MEDICATIONS AND DEVICES EXCEEDS TWO HUNDRED DOLLARS; OR
    2.  HE  OR  SHE POSSESSES TWENTY OR MORE PILLS, TABLETS OR CAPSULES OF
  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
    UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
  TIONS AND DEVICES IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
  S  219.15  UNLAWFUL  POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION
             MEDICATIONS AND DEVICES IN THE FOURTH DEGREE.
    A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES IN THE FOURTH DEGREE WHEN HE OR SHE
  KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
  TO HIM OR HER; AND
    1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
  MEDICATIONS AND DEVICES EXCEEDS FIVE HUNDRED DOLLARS; OR
    2. HE OR SHE POSSESSES FIFTY OR MORE PILLS,  TABLETS  OR  CAPSULES  OF
  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES; OR
    3. HE OR SHE POSSESSES A NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
  TION OR DEVICE WITH AN INTENT TO SELL IT; OR
    4.  HE  OR  SHE  COMMITS THE CRIME OF UNLAWFUL POSSESSION OF NON-CONT-
  ROLLED PRESCRIPTION MEDICATIONS AND DEVICES IN THE FIFTH DEGREE, AND HAS
  PREVIOUSLY BEEN CONVICTED OF AN OFFENSE DEFINED IN THIS ARTICLE.
    UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
  TIONS AND DEVICES IN THE FOURTH DEGREE IS A CLASS E FELONY.

 S. 2942                             8

  S 219.20 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
             MEDICATIONS AND DEVICES IN THE THIRD DEGREE.
    A  PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES IN THE THIRD DEGREE WHEN HE OR  SHE
  KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
  TO HIM OR HER; AND
    1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
  MEDICATIONS AND DEVICES EXCEEDS FIFTEEN HUNDRED DOLLARS; OR
    2. HE OR SHE POSSESSES ONE HUNDRED FIFTY OR  MORE  PILLS,  TABLETS  OR
  CAPSULES  OF  SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND
  DEVICES.
    UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
  TIONS AND DEVICES IN THE THIRD DEGREE IS A CLASS D FELONY.
  S 219.25 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
             MEDICATIONS AND DEVICES IN THE SECOND DEGREE.
    A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES IN THE SECOND DEGREE WHEN HE OR SHE
  KNOWINGLY  AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED SUBSTANCE
  PRESCRIPTION MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY  PRESCRIBED
  TO HIM OR HER; AND
    1.  THE  AGGREGATE VALUE OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION
  MEDICATIONS AND DEVICES EXCEEDS TEN THOUSAND DOLLARS; OR
    2. HE OR SHE POSSESSES ONE THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
  OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
    UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE  PRESCRIPTION  MEDICA-
  TIONS AND DEVICES IN THE SECOND DEGREE IS A CLASS C FELONY.
  S 219.30 UNLAWFUL  POSSESSION  OF  NON-CONTROLLED SUBSTANCE PRESCRIPTION
             MEDICATIONS AND DEVICES IN THE FIRST DEGREE.
    A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION  MEDICATIONS AND DEVICES IN THE FIRST DEGREE WHEN HE OR SHE
  KNOWINGLY AND UNLAWFULLY POSSESSES ONE OR MORE NON-CONTROLLED  SUBSTANCE
  PRESCRIPTION  MEDICATIONS AND DEVICES WHICH WERE NOT LAWFULLY PRESCRIBED
  TO HIM OR HER; AND
    1. THE AGGREGATE VALUE OF SUCH NON-CONTROLLED  SUBSTANCE  PRESCRIPTION
  MEDICATIONS AND DEVICES EXCEEDS ONE HUNDRED THOUSAND DOLLARS; OR
    2. HE OR SHE POSSESSES TEN THOUSAND OR MORE PILLS, TABLETS OR CAPSULES
  OF SUCH NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICES.
    UNLAWFUL  POSSESSION  OF NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICA-
  TIONS AND DEVICES IN THE FIRST DEGREE IS A CLASS B FELONY.
    S 10. This act shall take effect on the ninetieth day after  it  shall
  have become a law.

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S2942-2013: Relates to criminal diversion of prescription medications and prescriptions, establishing certain other offenses related thereto