Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 158 First Substitute (2018GS)

Sponsor

Rep. Daw, B.

Final action

Governor Signed 3/16/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies the requirements related to providing information to DOPL for inclusion in the controlled substance database;
• modifies who may be penalized for failing to submit information to the controlled substance database as required by state statute; and
• makes technical changes.

Every vote on this bill

Bill text

CONTROLLED SUBSTANCE DATABASE REVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad M. Daw
Senate Sponsor: 
Curtis S. Bramble
LONG TITLE
General Description:
This bill modifies provisions related to the controlled substance database administered
by the Division of Occupational and Professional Licensing (DOPL).
Highlighted Provisions:
This bill:
▸ modifies the requirements related to providing information to DOPL for inclusion in
the controlled substance database;
▸ modifies who may be penalized for failing to submit information to the controlled
substance database as required by state statute; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
58-37f-203
, as last amended by Laws of Utah 2015, Chapters 89 and 326
58-37f-301
, as last amended by Laws of Utah 2017, Chapter 237
58-37f-602
, as enacted by Laws of Utah 2010, Chapter 287
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
58-37f-203
 is amended to read:
58-37f-203.
Submission, collection, and maintenance of data.
(1) (a) The division shall implement on a statewide basis, including non-resident
pharmacies as defined in Section 
58-17b-102
, the following two options for a pharmacist to
submit information:
(i) real-time submission of the information required to be submitted under this part to
the controlled substance database; and
(ii) 24-hour daily or next business day, whichever is later, batch submission of the
information required to be submitted under this part to the controlled substance database.
(b) (i) On and after January 1, 2016, a pharmacist shall comply with either:
(A) the submission time requirements established by the division under Subsection
(1)(a)(i); or
(B) the submission time requirements established by the division under Subsection
(1)(a)(ii).
(ii) Prior to January 1, 2016, a pharmacist may submit information using either option
under this Subsection (1).
(c) The division shall comply with Title 63G, Chapter 6a, Utah Procurement Code.
(2) (a) The [
pharmacist in charge
] 
pharmacist-in-charge and the pharmacist
 of the drug
outlet where a controlled substance is dispensed shall submit the data described in this section
to the division 
in accordance with
:
(i) [
in accordance with
] the requirements of this section;
(ii) [
in accordance with
] the procedures established by the division; [
and
]
(iii) additional types of information or data fields established by the division; and
[
(iii) in
] 
(iv)
 the format established by the division.
(b) A dispensing medical practitioner licensed under Chapter 17b, Part 8, Dispensing
Medical Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, shall comply with
the provisions of this section and the dispensing medical practitioner shall assume the duties of
the pharmacist under this chapter.
(3) The [
pharmacist
] 
pharmacist-in-charge and the pharmacist
 described in Subsection
(2) shall, for each controlled substance dispensed by a pharmacist under the pharmacist's
supervision other than those dispensed for an inpatient at a health care facility, submit to the
division [
the following information:
] 
any type of information or data field established by the
division by rule in accordance with Subsection (6).
[
(a) the name of the prescribing practitioner;
]
[
(b) the date of the prescription;
]
[
(c) the date the prescription was filled;
]
[
(d) the name of the individual for whom the prescription was written;
]
[
(e) positive identification of the individual receiving the prescription, including the
type of identification and any identifying numbers on the identification;
]
[
(f) the name of the controlled substance;
]
[
(g) the quantity of the controlled substance prescribed;
]
[
(h) the strength of the controlled substance;
]
[
(i) the quantity of the controlled substance dispensed;
]
[
(j) the dosage quantity and frequency as prescribed;
]
[
(k) the name of the drug outlet dispensing the controlled substance; and
]
[
(l) the name of the pharmacist dispensing the controlled substance.
]
(4) An individual whose records are in the database may obtain those records upon
submission of a written request to the division.
(5) (a) A patient whose record is in the database may contact the division in writing to
request correction of any of the patient's database information that is incorrect. The patient
shall provide a postal address for the division's response.
(b) The division shall grant or deny the request within 30 days from receipt of the
request and shall advise the requesting patient of its decision by mail postmarked within 35
days of receipt of the request.
(c) If the division denies a request under this Subsection (5) or does not respond within
35 days, the patient may submit an appeal to the Department of Commerce, within 60 days
after the postmark date of the patient's letter making a request for a correction under this
Subsection (5).
(6) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to establish submission requirements under this part[
,
including the electronic format in which the information required under this section shall be
submitted to the division.
]
, including:
(a) electronic format;
(b) submission procedures; and
(c) required information and data fields.
(7) The division shall ensure that the database system records and maintains for
reference:
(a) the identification of each individual who requests or receives information from the
database;
(b) the information provided to each individual; and
(c) the date and time that the information is requested or provided.
Section 2. Section 
58-37f-301
 is amended to read:
58-37f-301.
Access to database.
(1) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to:
(a) effectively enforce the limitations on access to the database as described in this
part; and
(b) establish standards and procedures to ensure accurate identification of individuals
requesting information or receiving information without request from the database.
(2) The division shall make information in the database and information obtained from
other state or federal prescription monitoring programs by means of the database available only
to the following individuals, in accordance with the requirements of this chapter and division
rules:
(a) (i) personnel of the division specifically assigned to conduct investigations related
to controlled substance laws under the jurisdiction of the division; and
(ii) the following law enforcement officers, but the division may only provide
nonidentifying information, limited to gender, year of birth, and postal ZIP code, regarding
individuals for whom a controlled substance has been prescribed or to whom a controlled
substance has been dispensed:
(A) a law enforcement agency officer who is engaged in a joint investigation with the
division; and
(B) a law enforcement agency officer to whom the division has referred a suspected
criminal violation of controlled substance laws;
(b) authorized division personnel engaged in analysis of controlled substance
prescription information as a part of the assigned duties and responsibilities of their
employment;
(c) a board member if:
(i) the board member is assigned to monitor a licensee on probation; and
(ii) the board member is limited to obtaining information from the database regarding
the specific licensee on probation;
(d) a member of a diversion committee established in accordance with Subsection
58-1-404
(2) if:
(i) the diversion committee member is limited to obtaining information from the
database regarding the person whose conduct is the subject of the committee's consideration;
and
(ii) the conduct that is the subject of the committee's consideration includes a violation
or a potential violation of Chapter 37, Utah Controlled Substances Act, or another relevant
violation or potential violation under this title;
(e) in accordance with a written agreement entered into with the department,
employees of the Department of Health:
(i) whom the director of the Department of Health assigns to conduct scientific studies
regarding the use or abuse of controlled substances, if the identity of the individuals and
pharmacies in the database are confidential and are not disclosed in any manner to any
individual who is not directly involved in the scientific studies;
(ii) when the information is requested by the Department of Health in relation to a
person or provider whom the Department of Health suspects may be improperly obtaining or
providing a controlled substance; or
(iii) in the medical examiner's office;
(f) in accordance with a written agreement entered into with the department, a designee
of the director of the Department of Health, who is not an employee of the Department of
Health, whom the director of the Department of Health assigns to conduct scientific studies
regarding the use or abuse of controlled substances pursuant to an application process
established in rule by the Department of Health, if:
(i) the designee provides explicit information to the Department of Health regarding
the purpose of the scientific studies;
(ii) the scientific studies to be conducted by the designee:
(A) fit within the responsibilities of the Department of Health for health and welfare;
(B) are reviewed and approved by an Institutional Review Board that is approved for
human subject research by the United States Department of Health and Human Services; and
(C) are not conducted for profit or commercial gain; and
(D) are conducted in a research facility, as defined by division rule, that is associated
with a university or college accredited by one or more regional or national accrediting agencies
recognized by the United States Department of Education;
(iii) the designee protects the information as a business associate of the Department of
Health; and
(iv) the identity of the prescribers, patients, and pharmacies in the database are
de-identified, confidential, not disclosed in any manner to the designee or to any individual
who is not directly involved in the scientific studies;
(g) in accordance with the written agreement entered into with the department and the
Department of Health, authorized employees of a managed care organization, as defined in 42
C.F.R. Sec. 438, if:
(i) the managed care organization contracts with the Department of Health under the
provisions of Section 
26-18-405
 and the contract includes provisions that:
(A) require a managed care organization employee who will have access to information
from the database to submit to a criminal background check; and
(B) limit the authorized employee of the managed care organization to requesting either
the division or the Department of Health to conduct a search of the database regarding a
specific Medicaid enrollee and to report the results of the search to the authorized employee;
and
(ii) the information is requested by an authorized employee of the managed care
organization in relation to a person who is enrolled in the Medicaid program with the managed
care organization, and the managed care organization suspects the person may be improperly
obtaining or providing a controlled substance;
(h) a licensed practitioner having authority to prescribe controlled substances, to the
extent the information:
(i) (A) relates specifically to a current or prospective patient of the practitioner; and
(B) is provided to or sought by the practitioner for the purpose of:
(I) prescribing or considering prescribing any controlled substance to the current or
prospective patient;
(II) diagnosing the current or prospective patient;
(III) providing medical treatment or medical advice to the current or prospective
patient; or
(IV) determining whether the current or prospective patient:
(Aa) is attempting to fraudulently obtain a controlled substance from the practitioner;
or
(Bb) has fraudulently obtained, or attempted to fraudulently obtain, a controlled
substance from the practitioner;
(ii) (A) relates specifically to a former patient of the practitioner; and
(B) is provided to or sought by the practitioner for the purpose of determining whether
the former patient has fraudulently obtained, or has attempted to fraudulently obtain, a
controlled substance from the practitioner;
(iii) relates specifically to an individual who has access to the practitioner's Drug
Enforcement Administration identification number, and the practitioner suspects that the
individual may have used the practitioner's Drug Enforcement Administration identification
number to fraudulently acquire or prescribe a controlled substance;
(iv) relates to the practitioner's own prescribing practices, except when specifically
prohibited by the division by administrative rule;
(v) relates to the use of the controlled substance database by an employee of the
practitioner, described in Subsection (2)(i); or
(vi) relates to any use of the practitioner's Drug Enforcement Administration
identification number to obtain, attempt to obtain, prescribe, or attempt to prescribe, a
controlled substance;
(i) in accordance with Subsection (3)(a), an employee of a practitioner described in
Subsection (2)(h), for a purpose described in Subsection (2)(h)(i) or (ii), if:
(i) the employee is designated by the practitioner as an individual authorized to access
the information on behalf of the practitioner;
(ii) the practitioner provides written notice to the division of the identity of the
employee; and
(iii) the division:
(A) grants the employee access to the database; and
(B) provides the employee with a password that is unique to that employee to access
the database in order to permit the division to comply with the requirements of Subsection
58-37f-203
(5) with respect to the employee;
(j) an employee of the same business that employs a licensed practitioner under
Subsection (2)(h) if:
(i) the employee is designated by the practitioner as an individual authorized to access
the information on behalf of the practitioner;
(ii) the practitioner and the employing business provide written notice to the division of
the identity of the designated employee; and
(iii) the division:
(A) grants the employee access to the database; and
(B) provides the employee with a password that is unique to that employee to access
the database in order to permit the division to comply with the requirements of Subsection
58-37f-203
(5) with respect to the employee;
(k) a licensed pharmacist having authority to dispense a controlled substance to the
extent the information is provided or sought for the purpose of:
(i) dispensing or considering dispensing any controlled substance; or
(ii) determining whether a person:
(A) is attempting to fraudulently obtain a controlled substance from the pharmacist; or
(B) has fraudulently obtained, or attempted to fraudulently obtain, a controlled
substance from the pharmacist;
(l) in accordance with Subsection (3)(a), a licensed pharmacy technician and pharmacy
intern who is an employee of a pharmacy as defined in Section 
58-17b-102
, for the purposes
described in Subsection (2)(j)(i) or (ii), if:
(i) the employee is designated by the pharmacist-in-charge as an individual authorized
to access the information on behalf of a licensed pharmacist employed by the pharmacy;
(ii) the pharmacist-in-charge provides written notice to the division of the identity of
the employee; and
(iii) the division:
(A) grants the employee access to the database; and
(B) provides the employee with a password that is unique to that employee to access
the database in order to permit the division to comply with the requirements of Subsection
58-37f-203
(5) with respect to the employee;
(m) pursuant to a valid search warrant, federal, state, and local law enforcement
officers and state and local prosecutors who are engaged in an investigation related to:
(i) one or more controlled substances; and
(ii) a specific person who is a subject of the investigation;
(n) subject to Subsection (7), a probation or parole officer, employed by the
Department of Corrections or by a political subdivision, to gain access to database information
necessary for the officer's supervision of a specific probationer or parolee who is under the
officer's direct supervision;
(o) employees of the Office of Internal Audit and Program Integrity within the
Department of Health who are engaged in their specified duty of ensuring Medicaid program
integrity under Section 
26-18-2.3
;
(p) a mental health therapist, if:
(i) the information relates to a patient who is:
(A) enrolled in a licensed substance abuse treatment program; and
(B) receiving treatment from, or under the direction of, the mental health therapist as
part of the patient's participation in the licensed substance abuse treatment program described
in Subsection (2)(p)(i)(A);
(ii) the information is sought for the purpose of determining whether the patient is
using a controlled substance while the patient is enrolled in the licensed substance abuse
treatment program described in Subsection (2)(p)(i)(A); and
(iii) the licensed substance abuse treatment program described in Subsection
(2)(p)(i)(A) is associated with a practitioner who:
(A) is a physician, a physician assistant, an advance practice registered nurse, or a
pharmacist; and
(B) is available to consult with the mental health therapist regarding the information
obtained by the mental health therapist, under this Subsection (2)(p), from the database;
(q) an individual who is the recipient of a controlled substance prescription entered into
the database, upon providing evidence satisfactory to the division that the individual requesting
the information is in fact the individual about whom the data entry was made;
(r) an individual under Subsection (2)(q) for the purpose of obtaining a list of the
persons and entities that have requested or received any information from the database
regarding the individual, except if the individual's record is subject to a pending or current
investigation as authorized under this Subsection (2);
(s) the inspector general, or a designee of the inspector general, of the Office of
Inspector General of Medicaid Services, for the purpose of fulfilling the duties described in
Title 63A, Chapter 13, Part 2, Office and Powers; [
and
]
(t) the following licensed physicians for the purpose of reviewing and offering an
opinion on an individual's request for workers' compensation benefits under Title 34A, Chapter
2, Workers' Compensation Act, or Title 34A, Chapter 3, Utah Occupational Disease Act:
(i) a member of the medical panel described in Section 
34A-2-601
;
(ii) a physician employed as medical director for a licensed workers' compensation
insurer or an approved self-insured employer; or
(iii) a physician offering a second opinion regarding treatment[
.
]
; and
(u) members of Utah's Opioid Fatality Review Committee, for the purpose of
reviewing a specific fatality due to opioid use and recommending policies to reduce the
frequency of opioid use fatalities.
(3) (a) (i) A practitioner described in Subsection (2)(h) may designate one or more
employees to access information from the database under Subsection (2)(i), (2)(j), or (4)(c).
(ii) A pharmacist described in Subsection (2)(k) who is a pharmacist-in-charge may
designate up to five employees to access information from the database under Subsection (2)(l).
(b) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to:
(i) establish background check procedures to determine whether an employee
designated under Subsection (2)(i), (2)(j), or (4)(c) should be granted access to the database;
and
(ii) establish the information to be provided by an emergency department employee
under Subsection (4); and
(iii) facilitate providing controlled substance prescription information to a third party
under Subsection (5).
(c) The division shall grant an employee designated under Subsection (2)(i), (2)(j), or
(4)(c) access to the database, unless the division determines, based on a background check, that
the employee poses a security risk to the information contained in the database.
(4) (a) An individual who is employed in the emergency department of a hospital may
exercise access to the database under this Subsection (4) on behalf of a licensed practitioner if
the individual is designated under Subsection (4)(c) and the licensed practitioner:
(i) is employed in the emergency department;
(ii) is treating an emergency department patient for an emergency medical condition;
and
(iii) requests that an individual employed in the emergency department and designated
under Subsection (4)(c) obtain information regarding the patient from the database as needed in
the course of treatment.
(b) The emergency department employee obtaining information from the database
shall, when gaining access to the database, provide to the database the name and any additional
identifiers regarding the requesting practitioner as required by division administrative rule
established under Subsection (3)(b).
(c) An individual employed in the emergency department under this Subsection (4)
may obtain information from the database as provided in Subsection (4)(a) if:
(i) the employee is designated by the practitioner as an individual authorized to access
the information on behalf of the practitioner;
(ii) the practitioner and the hospital operating the emergency department provide
written notice to the division of the identity of the designated employee; and
(iii) the division:
(A) grants the employee access to the database; and
(B) provides the employee with a password that is unique to that employee to access
the database in order to permit the division to comply with the requirements of Subsection
58-37f-203
(5) with respect to the employee.
(d) The division may impose a fee, in accordance with Section 
63J-1-504
, on a
practitioner who designates an employee under Subsection (2)(i), (2)(j), or (4)(c) to pay for the
costs incurred by the division to conduct the background check and make the determination
described in Subsection (3)(b).
(5) (a) (i) An individual may request that the division provide the information under
Subsection (5)(b) to a third party who is designated by the individual each time a controlled
substance prescription for the individual is dispensed.
(ii) The division shall upon receipt of the request under this Subsection (5)(a) advise
the individual in writing that the individual may direct the division to discontinue providing the
information to a third party and that notice of the individual's direction to discontinue will be
provided to the third party. 
(b) The information the division shall provide under Subsection (5)(a) is:
(i) the fact a controlled substance has been dispensed to the individual, but without
identifying the controlled substance; and
(ii) the date the controlled substance was dispensed.
(c) (i) An individual who has made a request under Subsection (5)(a) may direct that
the division discontinue providing information to the third party.
(ii) The division shall:
(A) notify the third party that the individual has directed the division to no longer
provide information to the third party; and
(B) discontinue providing information to the third party.
(6) (a) An individual who is granted access to the database based on the fact that the
individual is a licensed practitioner or a mental health therapist shall be denied access to the
database when the individual is no longer licensed.
(b) An individual who is granted access to the database based on the fact that the
individual is a designated employee of a licensed practitioner shall be denied access to the
database when the practitioner is no longer licensed.
(7) A probation or parole officer is not required to obtain a search warrant to access the
database in accordance with Subsection (2)(n).
(8) The division shall review and adjust the database programming which
automatically logs off an individual who is granted access to the database under Subsections
(2)(h), (2)(i), (2)(j), and (4)(c) to maximize the following objectives:
(a) to protect patient privacy;
(b) to reduce inappropriate access; and
(c) to make the database more useful and helpful to a person accessing the database
under Subsections (2)(h), (2)(i), (2)(j), and (4)(c), especially in high usage locations such as an
emergency department.
Section 3. Section 
58-37f-602
 is amended to read:
58-37f-602.
Failure by pharmacist to submit information -- Penalties.
(1) The failure of a [
pharmacist in charge
] 
pharmacist-in-charge, a pharmacy, or a third
party under contract with a pharmacist-in-charge
 to submit information to the database [
as
required under
] 
in accordance with the requirements of
 Section 
58-37f-203
, after the division
has submitted a specific written request for the information or when the division determines the
[
individual
] 
pharmacist-in-charge, pharmacy, or third party
 has a demonstrable pattern of
failing to submit the information as required, is grounds for the division to take the following
actions in accordance with Section 
58-1-401
:
(a) refuse to issue a license to the [
individual
] 
pharmacist-in-charge or the pharmacy
;
(b) refuse to renew the [
individual's
] license 
of the pharmacist-in-charge or the
pharmacy
;
(c) revoke, suspend, restrict, or place on probation the license 
of the
pharmacist-in-charge or the pharmacy
;
(d) issue a public reprimand to the [
individual
] 
pharmacist-in-charge or the pharmacy
;
(e) issue a cease and desist order 
to the pharmacist-in-charge, the pharmacy, or the
third party
; and
(f) impose a civil penalty 
on the pharmacist-in-charge, the pharmacy, or the third party
of [
not more than
] 
up to
 $1,000 for each dispensed prescription regarding which the required
information is not submitted 
in accordance with the requirements of Section 
58-37f-203
.
(2) Civil penalties assessed under Subsection (1)(f) shall be deposited in the General
Fund as a dedicated credit to be used by the division under Subsection 
58-37f-502
(1).
(3) The procedure for determining a civil violation of this section shall be in
accordance with Section 
58-1-108
, regarding adjudicative proceedings within the division.