Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 260 First Substitute (2018GS)

Sponsor

Rep. Ward, R.

Final action

House/ filed 3/8/2018

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• modifies access to the controlled substance database for certain law enforcement officers;
• modifies the authority of the Division of Occupational and Professional Licensing (DOPL) to review the controlled substance database to identify any prescriber who may be overprescribing opioids;
• grants DOPL the authority to provide education or training to certain prescribers and to take other enforcement action; and
• makes technical changes.

Every vote on this bill

Bill text

PROFESSIONAL LICENSING REVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Raymond P. Ward
Senate Sponsor: 
 J. Stuart Adams
LONG TITLE
General Description:
This bill modifies provisions of the Controlled Substance Database Act.
Highlighted Provisions:
This bill:
▸ modifies access to the controlled substance database for certain law enforcement
officers;
▸ modifies the authority of the Division of Occupational and Professional Licensing
(DOPL) to review the controlled substance database to identify any prescriber who
may be overprescribing opioids;
▸ grants DOPL the authority to provide education or training to certain prescribers
and to take other enforcement action; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
58-37f-301
, as last amended by Laws of Utah 2017, Chapter 237
58-37f-304
, as last amended by Laws of Utah 2017, Chapters 181 and 237
Be it enacted by the Legislature of the state of Utah:
Section 1. 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) administer the provisions of this part;
[
(a)
] 
(b)
 effectively enforce the limitations on access to the database as described in
this part; and
[
(b)
] 
(c)
 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 
made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act
:
(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) a federal, state, or local law enforcement officer if:
(i) the officer's law enforcement agency or department has entered into a memorandum
of understanding with the division that:
(A) is executed by the officer's chief, sheriff, or law enforcement chief executive
officer;
(B) notifies the agency or department that the division may audit the officer's and the
agency's or department's use of the database at any time; and
(C) allows the division to immediately suspend access to the database for any reason;
and
(ii) the officer:
(A) submits to the division a written request from the agency or department for the
officer's access to the database that designates the officer as an investigator primarily assigned
to investigate legally prescribed controlled substance cases;
(B) successfully completes an eight-hour prescription drug investigator controlled
substance database course established by the division by rule, which includes an examination;
(C) submits a security agreement application to the division in a form established by
the division that requires state identification and has been reviewed and approved by the
database administrator or the administrator's designee; and
(D) meets the requirements of any other rules made by the division to establish the
requirements of this Subsection (2)(m);
[
(m)
] 
(n)
 pursuant to a valid search warrant, 
a
 federal, state, [
and
] 
or
 local law
enforcement [
officers and state and local prosecutors who are
] 
officer or a state or local
prosecutor who is
 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)
] 
(o)
 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
]
(p) an employee
 of the Office of Internal Audit and Program Integrity within the
Department of Health who [
are
] 
is
 engaged in [
their
] 
the
 specified duty of ensuring Medicaid
program integrity under Section 
26-18-2.3
;
[
(p)
] 
(q)
 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)
]
(q)
(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)
]
(q)
(i)(A); and
(iii) the licensed substance abuse treatment program described in Subsection
(2)[
(p)
]
(q)
(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)
]
(q)
, from the database;
[
(q)
] 
(r)
 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)
] 
(s)
 an individual under Subsection (2)[
(q)
]
(r)
 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)
] 
(t)
 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)
] 
(u)
 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.
(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)
]
(o)
.
(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 2. Section 
58-37f-304
 is amended to read:
58-37f-304.
Database utilization.
(1) As used in this section:
(a) "Dispenser" means a licensed pharmacist, as described in Section 
58-17b-303
, or
the pharmacist's licensed intern, as described in Section 
58-17b-304
, who is also licensed to
dispense a controlled substance under Title 58, Chapter 37, Utah Controlled Substances Act.
(b) "Outpatient" means a setting in which an individual visits a licensed healthcare
facility or a healthcare provider's office for a diagnosis or treatment but is not admitted to a
licensed healthcare facility for an overnight stay.
(c) "Prescriber" means an individual authorized to prescribe a controlled substance
under Title 58, Chapter 37, Utah Controlled Substances Act.
(d) "Schedule II opioid" means those substances listed in Subsection 
58-37-4
(2)(b)(i)
or (2)(b)(ii).
(e) "Schedule III opioid" means those substances listed in Subsection 
58-37-4
(2)(c)
that are opioids.
(2) (a) A prescriber shall substantially comply with this Subsection (2).
(b) Except as provided in Subsection (2)(b), a prescriber shall check the database for
information about a patient before the first time the prescriber gives a prescription to a patient
for a Schedule II opioid or a Schedule III opioid.
(c) A prescriber is not required to check the database under Subsection (2)(b) if:
(i) the prescription for a Schedule II opioid or a Schedule III opioid is for three days or
fewer on the daily dosage instructions on the prescription;
(ii) the prescriber has prior knowledge of the patient's prescription history based on the
prescriber's review of the patient's health record; or
(iii) the prescription for a Schedule II opioid or a Schedule III opioid is a post surgical
prescription and the total duration of opioid written after the surgery has been for 30 days or
fewer.
(d) If a prescriber is repeatedly prescribing a Schedule II opioid or Schedule III opioid
to a patient, the prescriber shall periodically review information about the patient in:
(i) the database; or
(ii) other similar records of controlled substances the patient has filled.
(e) A prescriber may assign the access and review required under Subsections (2)(b)
and (2)(c) to one or more employees in accordance with Subsections 
58-37f-301
(2)(i) and (j).
(f) The division shall not take action against the license of a prescriber for failure to
follow this Subsection (2) if the prescriber demonstrates substantial compliance with the
requirements of this Subsection (2).
(3) The division shall, in collaboration with the licensing boards for prescribers and
dispensers:
(a) develop a system that gathers and reports to prescribers and dispensers the progress
and results of the prescriber's and dispenser's individual access and review of the database, as
provided in this section; and
(b) reduce or waive the division's continuing education requirements regarding opioid
prescriptions, described in Section 
58-37-6.5
, including the online tutorial and test relating to
the database, for prescribers and dispensers whose individual utilization of the database, as
determined by the division, demonstrates substantial compliance with this section.
(4) If the dispenser's access and review of the database suggest that the individual
seeking an opioid may be obtaining opioids in quantities or frequencies inconsistent with
generally recognized standards as provided in this section and Section 
58-37f-201
, the
dispenser shall reasonably attempt to contact the prescriber to obtain the prescriber's informed,
current, and professional decision regarding whether the prescribed opioid is medically
justified, notwithstanding the results of the database search.
(5) (a) The division shall review the database to identify and investigate any prescriber
who has a pattern of prescribing opioids not in accordance with the recommendations of:
(i) the CDC Guideline for Prescribing Opioids for Chronic Pain, published by the
Centers for Disease Control and Prevention;
(ii) the Utah Clinical Guidelines on Prescribing Opioids for Treatment of Pain,
published by the Utah Department of Health; or
(iii) other publications describing best practices related to prescribing opioids as
identified by division rule in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act.
(b) The division shall provide training or other education to a prescriber identified
under this Subsection (5) regarding best practices in the prescribing of opioids.
Legislative Review Note
Office of Legislative Research and General Counsel