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

                                  4245

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 24, 2011
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Higher Education

AN  ACT  to  amend  the  education  law,  in  relation   to   electronic
  prescriptions and generic substitution

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

  Section 1. Section 6802 of the education law is amended  by  adding  a
new subdivision 23 to read as follows:
  23.  "ELECTRONIC PRESCRIPTION" MEANS A PRESCRIPTION CREATED, RECORDED,
OR STORED BY ELECTRONIC MEANS; ISSUED WITH AN ELECTRONIC SIGNATURE;  AND
TRANSMITTED  BY  ELECTRONIC MEANS, IN ACCORDANCE WITH REGULATIONS OF THE
COMMISSIONER AND APPLICABLE REGULATIONS OF THE  COMMISSIONER  OF  HEALTH
AND  FEDERAL  REGULATIONS; PROVIDED, HOWEVER, THAT AN ORIGINAL HARD COPY
PRESCRIPTION THAT IS CREATED ELECTRONICALLY OR OTHERWISE MAY  BE  TRANS-
MITTED  FROM  THE  PRESCRIBER TO THE PHARMACIST BY FACSIMILE AND MUST BE
MANUALLY SIGNED. "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY  HAVING
ELECTRICAL,  DIGITAL,  MAGNETIC,  WIRELESS, OPTICAL, ELECTROMAGNETIC, OR
SIMILAR CAPABILITIES. "ELECTRONIC SIGNATURE" MEANS AN ELECTRONIC  SOUND,
SYMBOL,  OR  PROCESS,  ATTACHED TO OR LOGICALLY ASSOCIATED WITH AN ELEC-
TRONIC PRESCRIPTION AND EXECUTED OR ADOPTED BY A PERSON WITH THE  INTENT
TO  SIGN THE PRESCRIPTION, IN ACCORDANCE WITH REGULATIONS OF THE COMMIS-
SIONER AND APPLICABLE REGULATIONS OF  THE  COMMISSIONER  OF  HEALTH  AND
FEDERAL REGULATIONS.
  S  2.  Paragraph (a) of subdivision 6 of section 6810 of the education
law, as amended by chapter 649 of the laws of 1993, is amended  to  read
as follows:
  (a) Every prescription written in this state by a person authorized to
issue  such  prescription  shall be on prescription forms containing one
line for the prescriber's signature. The  prescriber's  signature  shall
validate  the  prescription. EVERY ELECTRONIC PRESCRIPTION SHALL PROVIDE
FOR THE PRESCRIBER'S ELECTRONIC  SIGNATURE,  WHICH  SHALL  VALIDATE  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05379-01-1
              

S. 4245                             2

ELECTRONIC  PRESCRIPTION.  Imprinted conspicuously ON EVERY PRESCRIPTION
WRITTEN IN THIS STATE in eight point upper case type  immediately  below
the signature line shall be the words: "THIS PRESCRIPTION WILL BE FILLED
GENERICALLY  UNLESS  PRESCRIBER WRITES 'd a w' IN THE BOX BELOW". Unless
the prescriber writes d a w in such box in the  prescriber's  own  hand-
writing  OR,  IN  THE CASE OF ELECTRONIC PRESCRIPTIONS, INSERTS AN ELEC-
TRONIC DIRECTION TO DISPENSE  THE  DRUG  AS  WRITTEN,  the  prescriber's
signature  OR  ELECTRONIC  SIGNATURE shall designate approval of substi-
tution by a pharmacist of a drug product pursuant to  paragraph  (o)  of
subdivision  one of section two hundred six of the public health law. No
other letters or marks in  such  box  shall  prohibit  substitution.  No
prescription forms used or intended to be used by a person authorized to
issue a prescription shall have 'd a w' preprinted in such box. Such box
shall  be  placed  directly under the signature line and shall be three-
quarters inch in length and one-half inch in height,  OR  IN  COMPARABLE
FORM FOR AN ELECTRONIC PRESCRIPTION AS MAY BE SPECIFIED BY REGULATION OF
THE  COMMISSIONER.  Immediately below such box shall be imprinted in six
point type the words "Dispense As Written".  Notwithstanding  any  other
provision of law, no state official, agency, board or other entity shall
promulgate  any  regulation or guideline modifying those elements of the
prescription form's contents  specified  in  this  subdivision.  To  the
extent  otherwise  permitted  by law, a prescriber may modify only those
elements of the prescription  form's  contents  not  specified  in  this
subdivision.  Notwithstanding any other provision of this section or any
other  law, when a generic drug is not available and the brand name drug
originally prescribed is available and the pharmacist agrees to dispense
the brand name product for a price that will not exceed the  price  that
would  have  been  charged for the generic substitute had it been avail-
able, substitution of a generic drug product will not  be  required.  If
the  generic drug product is not available and a medical emergency situ-
ation, which for purposes of this section is defined  as  any  condition
requiring  alleviation  of severe pain or which threatens to cause disa-
bility or take life if not promptly treated, exists, then the pharmacist
may dispense the brand name  product  at  his  regular  price.  In  such
instances  the  pharmacist  must record the date, hour and nature of the
medical emergency on the back of the prescription and keep a copy of all
such prescriptions.
  S 3. This act shall not be construed to mean or imply that any  refer-
ence in any statute or regulation to a prescription, signature, or writ-
ing  does  not include an electronic prescription, electronic signature,
or entry of information by electronic means, respectively.
  S 4. This act shall take effect immediately.