130th Ohio General Assembly
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H. B. No. 71  As Introduced
As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 71


Representative Luckie 

Cosponsor: Representative Boyd 



A BILL
To amend sections 4729.75, 4729.79, 4729.83, and 4729.99 and to enact sections 4729.791, 4729.85, 4729.86, 4729.861, 4729.87, 4729.871, 4729.88, 4729.89, 4729.90, 4729.91, and 4729.92 of the Revised Code to create the Ohio Official Prescription Program and to require prescribers and pharmacists to obtain information from the Ohio Automated Rx Reporting System.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4729.75, 4729.79, 4729.83, and 4729.99 be amended and sections 4729.791, 4729.85, 4729.86, 4729.861, 4729.87, 4729.871, 4729.88, 4729.89, 4729.90, 4729.91, and 4729.92 of the Revised Code be enacted to read as follows:
Sec. 4729.75. The state board of pharmacy may establish and maintain a drug database. The board shall use the drug database to monitor the misuse and diversion of controlled substances, as defined in section 3719.01 of the Revised Code, and other dangerous drugs the board includes in the database pursuant to rules adopted under section 4729.83 of the Revised Code. In establishing and maintaining the database, the board shall electronically collect information pursuant to sections 4729.77 and 4729.78 of the Revised Code and shall disseminate information as authorized or required by sections section 4729.79 and as required by sections 4729.791 and 4729.80 of the Revised Code. The board's collection and dissemination of information shall be conducted in accordance with rules adopted under section 4729.83 of the Revised Code.
Sec. 4729.79. (A) If the state board of pharmacy establishes and maintains a drug database pursuant to section 4729.75 of the Revised Code, the board may provide information from the database in accordance with the following:
(1) On receipt of a request from a designated representative of a government entity responsible for the licensure, regulation, or discipline of licensed health care professionals authorized to prescribe drugs, the board may provide to the representative information from the database relating to the professional who is the subject of an active investigation being conducted by the government entity.
(2) On receipt of a request from a federal officer, or a state or local officer of this or any other state, whose duties include enforcing laws relating to drugs, the board may provide to the officer information from the database relating to the person who is the subject of an active investigation being conducted by the officer's employing government entity.
(3) Pursuant to a subpoena issued by a grand jury, the board may provide to the grand jury information from the database relating to the person who is the subject of an investigation being conducted by the grand jury.
(4) On receipt of a request from a pharmacist or prescriber, the board may provide to the requestor information from the database relating to a current patient of the requestor, if the requestor certifies in a form specified by the board that it is for the purpose of providing medical or pharmaceutical treatment to the patient who is the subject of the request.
(5) On receipt of a request from an individual seeking the individual's own database information in accordance with the procedure established in rules adopted under section 4729.83 of the Revised Code, the board may provide to the individual the individual's own database information.
(B) The state board of pharmacy shall maintain a record of each individual or entity that requests information from the database pursuant to this section. In accordance with rules adopted under section 4729.83 of the Revised Code, the board may use the records to document and report statistics and law enforcement outcomes.
The board may provide records of an individual's requests for database information to the following:
(1) A designated representative of a government entity that is responsible for the licensure, regulation, or discipline of licensed health care professionals authorized to prescribe drugs who is involved in an active investigation being conducted by the government entity of the individual who submitted the requests for database information;
(2) A federal officer, or a state or local officer of this or any other state, whose duties include enforcing laws relating to drugs and who is involved in an active investigation being conducted by the officer's employing government entity of the individual who submitted the requests for database information.
(C) Information contained in the database and any information obtained from it is not a public record. Information contained in the records of requests for information from the database is not a public record. Information that does not identify a person may be released in summary, statistical, or aggregate form.
(D) Nothing in this section requires a pharmacist or prescriber to obtain information about a patient from the database. A pharmacist or prescriber shall not be held liable in damages to any person in any civil action for injury, death, or loss to person or property on the basis that the pharmacist or prescriber did or did not seek or obtain information from the database.
Sec. 4729.791. (A) If the state board of pharmacy establishes and maintains a drug database pursuant to section 4729.75 of the Revised Code, the board shall grant access to the information in the database to each licensed health professional authorized to prescribe drugs and to each pharmacist practicing in this state. The board shall grant access to the database in a manner that enables each prescriber and pharmacist to comply with division (B) of this section.
(B) Before a prescriber issues a prescription to a patient for a drug included in the database and before a pharmacist dispenses such a drug, the prescriber and pharmacist shall review information in the database that pertains to the patient. At any other time, a prescriber or pharmacist may review information in the database pertaining to a patient for the purpose of providing medical treatment or pharmacist services to the patient.
(C) A prescriber or pharmacist shall not be held liable in damages to any person in a civil action for injury, death, or loss to person or property on the basis that the prescriber or pharmacist did or did not review information in the database pertaining to a patient.
Sec. 4729.83. For purposes of establishing and maintaining a drug database pursuant to section 4729.75 of the Revised Code, the state board of pharmacy shall adopt rules in accordance with Chapter 119. of the Revised Code to carry out and enforce sections 4729.75 to 4729.82 of the Revised Code. The rules shall specify all of the following:
(A) A means of identifying each patient, terminal distributor of dangerous drugs, and each purchase at wholesale of dangerous drugs about which information is entered into the drug database;
(B) Requirements for the transmission of information from terminal distributors and wholesale distributors of dangerous drugs for purposes of the database;
(C) An electronic format for the submission of information from terminal distributors and wholesale distributors of dangerous drugs;
(D) A procedure whereby a terminal distributor or a wholesale distributor of dangerous drugs unable to submit information electronically may obtain a waiver to submit information in another format;
(E) A procedure whereby the board may grant a request from a law enforcement agency or a government entity responsible for the licensure, regulation, or discipline of licensed health care professionals authorized to prescribe drugs that information that has been stored for two years be retained when the information pertains to an open investigation being conducted by the agency or entity;
(F) A procedure whereby a terminal or wholesale distributor may apply for an extension to the time by which information must be transmitted to the board;
(G) A procedure whereby a person or government entity to which the board is authorized to provide information may submit a request to the board for the information and the board may verify the identity of the requestor;
(H) A procedure whereby the board can use the database request records required by division (B) of section 4729.79 of the Revised Code to document and report statistics and law enforcement outcomes;
(I) A procedure whereby an individual may request the individual's own database information and the board may verify the identity of the requestor;
(J) A reasonable fee that the board may charge under section 4729.82 of the Revised Code for providing an individual with the individual's own database information pursuant to section 4729.79 of the Revised Code;
(K) The specific dangerous drugs other than controlled substances that must be included in the database;
(L) The types of pharmacies licensed as terminal distributors of dangerous drugs that are required to submit prescription information to the board pursuant to section 4729.77 of the Revised Code;
(M) The manner in which prescribers and pharmacists are to be granted access to information in the database for purposes of section 4729.791 of the Revised Code.
Sec. 4729.85.  (A) There is hereby created the Ohio official prescription program. The state board of pharmacy shall implement and administer the program in accordance with sections 4729.85 to 4729.92 of the Revised Code.
(B) The board may establish an advisory committee to assist the board with the implementation and administration of the program. If the board establishes the committee, the board shall appoint members in such a manner that the constituencies with interests in the program, as determined by the board, have representation on the committee.
Sec. 4729.86.  (A) The state board of pharmacy shall prepare an official prescription form that meets all of the following requirements:
(1) Contains one or more industry-recognized features designed to prevent the unauthorized copying of a completed or blank prescription form;
(2) Contains one or more industry-recognized features designed to prevent the erasure or modification of information written on the prescription form;
(3) Contains one or more industry-recognized features designed to prevent the use of counterfeit prescription forms;
(4) Contains a unique identification number;
(5) Any other requirement necessary for compliance with 42 U.S.C. 1396b(i)(23).
(B) Beginning twelve months after the effective date of this section, the board shall do all of the following:
(1) On the request of a prescriber who is practicing in this state and has paid the program maintenance fee in accordance with section 4729.88 of the Revised Code, issue official prescription forms to the prescriber in quantities and at intervals the board determines appropriate;
(2) Keep records indicating which unique identification numbers are issued with the official prescription forms and which prescribers received those numbers;
(3) Cease to issue official prescription forms to prescribers if the board determines that at least ninety per cent of the prescriptions issued in this state are being transmitted to pharmacies through electronic prescription transmission systems.
(C) For purposes of determining under division (B)(3) of this section, the percentage of prescriptions that are transmitted through electronic prescription transmission systems, the board shall select the criteria to be used in making the determination, including the period of time that is to be represented by the percentage.
Sec. 4729.861.  The state board of pharmacy may fulfill its duties under section 4729.86 of the Revised Code by contracting with a vendor for the preparation and issuance of official prescription forms. To be eligible for the contract, each printing facility used by the vendor to print official prescription forms must have a two-year history of audits conducted pursuant to the statement on auditing standards number 70 of the American institute of certified public accountants and must maintain annual audits conducted pursuant to the statement on auditing standards number 70.
If the board contracts with a vendor under this section, the board shall establish security requirements for the procurement of official prescription forms through the vendor.
Sec. 4729.87.  (A) A prescriber shall notify the state board of pharmacy when either of the following events occurs:
(1) Loss, destruction, theft, or unauthorized use of an official prescription form issued to the prescriber under section 4729.86 of the Revised Code;
(2) Failure to receive official prescription forms requested under section 4729.86 of the Revised Code.
(B) The notification required under division (A)(1) of this section shall be made immediately. The notification required under division (A)(2) of this section shall be made within a reasonable time after the prescriber requests the forms from the board.
Sec. 4729.871.  (A)(1) Beginning twelve months after the effective date of this section, the state board of pharmacy shall provide pharmacies or pharmacists in this state with a list of all unique identification numbers marked on the official prescription forms that are reported under section 4729.87 of the Revised Code as being lost, destroyed, stolen, used without authorization, or not received.
(2) A pharmacy or pharmacist shall not dispense a drug pursuant to a prescription that is subject to the Ohio official prescription program if the prescription contains a unique identification number included on the list provided under division (A)(1) of this section.
(B)(1) Beginning twelve months after the effective date of this section or when the department of job and family services determines it is capable of using the unique identification numbers described in section 4729.86 of the Revised Code for purposes of the prescription drug coverage provided under the medicaid program established under Chapter 5111. of the Revised Code, whichever is later, the board shall provide the department with a list containing the following:
(a) All unique identification numbers marked on the official prescription forms issued under section 4729.86 of the Revised Code;
(b) All unique identification numbers marked on the forms that are reported under section 4729.87 of the Revised Code as being lost, destroyed, stolen, used without authorization, or not received.
(2) When processing claims for payment under the medicaid program for drugs dispensed pursuant to prescriptions that are subject to division (B) of section 4729.89 of the Revised Code, the department shall deny a claim that is associated with such a prescription if the prescription was not written on an official prescription form issued under section 4729.86 of the Revised Code or the prescription contained a unique identification number included pursuant to division (B)(1)(b) of this section on the list provided under division (B)(1) of this section.
(C) Beginning twelve months after the effective date of this section, the board may provide the list described in division (B)(1) of this section to any entity that provides health care coverage for prescription drugs, including a health insuring corporation, sickness and accident insurer, or public or private employer that offers health care benefits through a self-insurance plan or other self-insurance system. The board may impose a fee for providing the list under this division in an amount established by the board in rules adopted under section 4729.92 of the Revised Code.
(D) The lists provided by the board under this section shall be provided in a format and at intervals established by the board in rules adopted under section 4729.92 of the Revised Code. The board may issue updates to the lists in a format and at intervals established by the board in those rules.
Sec. 4729.88. (A) Except as provided in division (D) of this section, each prescriber who is practicing in this state shall pay to the state board of pharmacy a program maintenance fee. The board shall not issue official prescription forms to a prescriber who has not paid the fee in accordance with this section.
(B) In each of the five years immediately following the effective date of this section, the board shall assess the program maintenance fee on each prescriber who intends to practice in this state during the year for which the fee is assessed. The board shall select the date on which payment of the fee is due.
(C)(1) The amount of the program maintenance fee shall be as follows:
(a) For prescribers who issue one hundred or more prescriptions annually, one hundred dollars;
(b) For prescribers who issue fewer than one hundred prescriptions annually, fifty dollars;
(c) For prescribers who serve primarily as instructors at the university or college level, fifty dollars.
(2) For purposes of determining the amount of a prescriber's program maintenance fee, each prescriber who is required to pay the fee shall provide to the board, in a format selected by the board, the total number of prescriptions issued by that prescriber in the calendar year immediately preceding the year for which the fee is being assessed.
(D) The program maintenance fee does not apply to a prescriber who issues prescriptions only through an electronic prescription transmission system except when the prescriber is required to issue a written prescription because the drug being prescribed is a controlled substance.
Sec. 4729.89.  (A) As used in this section, "institutional facility" means either of the following at which medical care is provided on site and medical records documenting episodes of care, including drugs ordered and administered, are maintained:
(1) A hospital as defined in section 3727.01 of the Revised Code;
(2) A facility licensed by the state board of pharmacy and by the department of health, department of rehabilitation and correction, or department of developmental disabilities.
(B)(1) Except as provided in division (B)(2) of this section, beginning eighteen months after the effective date of this section, no prescriber shall issue a prescription unless the prescription is written on an official prescription form issued under section 4729.86 of the Revised Code.
(2) Division (B)(1) of this section does not apply to any of the following:
(a) A prescription that is transmitted to a pharmacy through an electronic prescription transmission system;
(b) A prescription that is transmitted to a pharmacy by a facsimile machine;
(c) A prescription that is an oral order for drugs that is later reduced to writing;
(d) A prescription for a patient in an institutional facility;
(e) A prescription issued outside this state.
(C) Beginning eighteen months after the effective date of this section, no pharmacist shall dispense a drug pursuant to a prescription that is subject to division (B) of this section if the prescription is not written on an official prescription form issued under section 4729.86 of the Revised Code.
(D) No prescriber shall fail to comply with section 4729.87 of the Revised Code.
(E) Beginning eighteen months after the effective date of this section, no prescriber shall issue a written prescription on a prescription form that was not issued to the prescriber under section 4729.86 of the Revised Code.
(F) Beginning eighteen months after the effective date of this section, no prescriber to whom an official prescription form is issued under section 4729.86 of the Revised Code shall transfer the form to another prescriber.
Sec. 4729.90.  There is hereby created in the state treasury the Ohio official prescription program fund. All moneys received under sections 4729.85 to 4729.92 of the Revised Code shall be deposited in the fund. The moneys in the fund shall be used solely for purposes of implementing and administering the Ohio official prescription program and, if a drug database is established and maintained pursuant to section 4729.75 of the Revised Code, for purposes of implementing and administering sections 4729.75 to 4729.84 of the Revised Code.
Sec. 4729.91.  A pharmacy, pharmacist, or prescriber is not liable for damages in a civil action or subject to disciplinary action by the state board of pharmacy for acting in good faith in complying with the Ohio official prescription program pursuant to sections 4729.85 to 4729.92 of the Revised Code.
Sec. 4729.92.  In accordance with Chapter 119. of the Revised Code, the state board of pharmacy shall adopt rules that the board considers necessary to implement and administer the Ohio official prescription program under sections 4729.85 to 4729.92 of the Revised Code.
Sec. 4729.99.  (A) Whoever violates section 4729.16, division (A) or (B) of section 4729.38, or section 4729.57 of the Revised Code is guilty of a minor misdemeanor. Each day's violation constitutes a separate offense.
(B) Whoever violates section 4729.27, 4729.28, or 4729.36 of the Revised Code is guilty of a misdemeanor of the third degree. Each day's violation constitutes a separate offense. If the offender previously has been convicted of or pleaded guilty to a violation of this chapter, that person is guilty of a misdemeanor of the second degree.
(C) Whoever violates section 4729.32, 4729.33, or 4729.34 of the Revised Code is guilty of a misdemeanor.
(D) Whoever violates division (A), (B), (D), or (E) of section 4729.51 of the Revised Code is guilty of a misdemeanor of the first degree.
(E)(1) Whoever violates section 4729.37, division (C)(2) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code is guilty of a felony of the fifth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this chapter or a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the fourth degree.
(2) If an offender is convicted of or pleads guilty to a violation of section 4729.37, division (C) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code, if the violation involves the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and if the court imposing sentence upon the offender finds that the offender as a result of the violation is a major drug offender, as defined in section 2929.01 of the Revised Code, and is guilty of a specification of the type described in section 2941.1410 of the Revised Code, the court, in lieu of the prison term authorized or required by division (E)(1) of this section and sections 2929.13 and 2929.14 of the Revised Code and in addition to any other sanction imposed for the offense under sections 2929.11 to 2929.18 of the Revised Code, shall impose upon the offender, in accordance with division (D)(3)(a) of section 2929.14 of the Revised Code, the mandatory prison term specified in that division and may impose an additional prison term under division (D)(3)(b) of that section.
(3) Notwithstanding any contrary provision of section 3719.21 of the Revised Code, the clerk of court shall pay any fine imposed for a violation of section 4729.37, division (C) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code pursuant to division (A) of section 2929.18 of the Revised Code in accordance with and subject to the requirements of division (F) of section 2925.03 of the Revised Code. The agency that receives the fine shall use the fine as specified in division (F) of section 2925.03 of the Revised Code.
(F) Whoever violates section 4729.531 of the Revised Code or any rule adopted thereunder or section 4729.532 of the Revised Code is guilty of a misdemeanor of the first degree.
(G) Whoever violates division (C)(1) of section 4729.51 of the Revised Code is guilty of a felony of the fourth degree. If the offender has previously been convicted of or pleaded guilty to a violation of this chapter, or of a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the third degree.
(H) Whoever violates division (C)(3) of section 4729.51 of the Revised Code is guilty of a misdemeanor of the first degree. If the offender has previously been convicted of or pleaded guilty to a violation of this chapter, or of a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the fifth degree.
(I)(1) Whoever violates division (B) of section 4729.42 of the Revised Code is guilty of unauthorized pharmacy-related drug conduct. Except as otherwise provided in this section, unauthorized pharmacy-related drug conduct is a misdemeanor of the second degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (B), (C), (D), or (E) of that section, unauthorized pharmacy-related drug conduct is a misdemeanor of the first degree on a second offense and a felony of the fifth degree on a third or subsequent offense.
(2) Whoever violates division (C) or (D) of section 4729.42 of the Revised Code is guilty of permitting unauthorized pharmacy-related drug conduct. Except as otherwise provided in this section, permitting unauthorized pharmacy-related drug conduct is a misdemeanor of the second degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (B), (C), (D), or (E) of that section, permitting unauthorized pharmacy-related drug conduct is a misdemeanor of the first degree on a second offense and a felony of the fifth degree on a third or subsequent offense.
(3) Whoever violates division (E) of section 4729.42 of the Revised Code is guilty of the offense of falsification under section 2921.13 of the Revised Code. In addition to any other sanction imposed for the violation, the offender is forever disqualified from engaging in any activity specified in division (B)(1), (2), or (3) of section 4729.42 of the Revised Code and from performing any function as a health care professional or health care worker. As used in this division, "health care professional" and "health care worker" have the same meanings as in section 2305.234 of the Revised Code.
(4) Notwithstanding any contrary provision of section 3719.21 of the Revised Code or any other provision of law that governs the distribution of fines, the clerk of the court shall pay any fine imposed pursuant to division (I)(1), (2), or (3) of this section to the state board of pharmacy if the board has adopted a written internal control policy under division (F)(2) of section 2925.03 of the Revised Code that addresses fine moneys that it receives under Chapter 2925. of the Revised Code and if the policy also addresses fine moneys paid under this division. The state board of pharmacy shall use the fines so paid in accordance with the written internal control policy to subsidize the board's law enforcement efforts that pertain to drug offenses.
(J) Whoever violates section 4729.89 of the Revised Code is guilty of a misdemeanor of the fourth degree.
Section 2.  That existing sections 4729.75, 4729.79, 4729.83, and 4729.99 of the Revised Code are hereby repealed.
Section 3.  Section 4729.99 of the Revised Code, as amended by this act, shall take effect eighteen months after the effective date of this act.
Section 4.  As used in this section, "prescriber" has the same meaning as in section 4729.01 of the Revised Code.
Notwithstanding the provisions of section 4729.88 of the Revised Code that require prescribers to pay an annual program maintenance fee, each prescriber shall pay an initial prorated program maintenance fee as determined by the State Board of Pharmacy to cover the period between the effective date of this act and the following June 30. Thereafter the fee shall be paid in accordance with section 4729.88 of the Revised Code. The Board shall issue official prescription forms in quantities that the Board determines appropriate to prescribers who pay the fee required by this section.
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