H.B. 257 Enrolled

1

CONTROLLED SUBSTANCE DATABASE AMENDMENTS
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Bradley M. Daw
5 Senate Sponsor: Curtis S. Bramble
6
7 LONG TITLE
8 General Description:
9 This bill modifies Title 58, Chapter 37f, Controlled Substance Database Act, regarding
10 use of the database to obtain information from other states or the federal government
11 and access to the database by designated employees and practitioners.
12 Highlighted Provisions:
13 This bill:
14 . prohibits unauthorized use of the controlled substance database as a means of
15 obtaining information from other states or a federal drug monitoring program;
16 . provides for the designation by a practitioner of persons who are employed by the
17 same business as the practitioner to gain access to the database at the request of the
18 practitioner; and
19 . provides a procedure for an emergency room employee to look up information in
20 the database for a practitioner who is treating an emergency room patient.
21 Money Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:
26 AMENDS:
27 58-37f-301, as last amended by Laws of Utah 2011, Chapters 38, 151, and 226
28 58-37f-601, as enacted by Laws of Utah 2010, Chapter 287
29

30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 58-37f-301 is amended to read:
32 58-37f-301. Access to database.
33 (1) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
34 Administrative Rulemaking Act, to:
35 (a) effectively enforce the limitations on access to the database as described in this
36 part; and
37 (b) establish standards and procedures to ensure accurate identification of individuals
38 requesting information or receiving information without request from the database.
39 (2) The division shall make information in the database and information obtained from
40 other state or federal prescription monitoring programs by means of the database available only
41 to the following individuals, in accordance with the requirements of this chapter and division
42 rules:
43 (a) personnel of the division specifically assigned to conduct investigations related to
44 controlled substance laws under the jurisdiction of the division;
45 (b) authorized division personnel engaged in analysis of controlled substance
46 prescription information as a part of the assigned duties and responsibilities of their
47 employment;
48 (c) in accordance with a written agreement entered into with the department,
49 employees of the Department of Health:
50 (i) whom the director of the Department of Health assigns to conduct scientific studies
51 regarding the use or abuse of controlled substances, provided that the identity of the individuals
52 and pharmacies in the database are confidential and are not disclosed in any manner to any
53 individual who is not directly involved in the scientific studies; or
54 (ii) when the information is requested by the Department of Health in relation to a
55 person or provider whom the Department of Health suspects may be improperly obtaining or
56 providing a controlled substance;
57 (d) a licensed practitioner having authority to prescribe controlled substances, to the

58 extent the information:
59 (i) (A) relates specifically to a current or prospective patient of the practitioner; and
60 (B) is sought by the practitioner for the purpose of:
61 (I) prescribing or considering prescribing any controlled substance to the current or
62 prospective patient;
63 (II) diagnosing the current or prospective patient;
64 (III) providing medical treatment or medical advice to the current or prospective
65 patient; or
66 (IV) determining whether the current or prospective patient:
67 (Aa) is attempting to fraudulently obtain a controlled substance from the practitioner;
68 or
69 (Bb) has fraudulently obtained, or attempted to fraudulently obtain, a controlled
70 substance from the practitioner;
71 (ii) (A) relates specifically to a former patient of the practitioner; and
72 (B) is sought by the practitioner for the purpose of determining whether the former
73 patient has fraudulently obtained, or has attempted to fraudulently obtain, a controlled
74 substance from the practitioner;
75 (iii) relates specifically to an individual who has access to the practitioner's Drug
76 Enforcement Administration identification number, and the practitioner suspects that the
77 individual may have used the practitioner's Drug Enforcement Administration identification
78 number to fraudulently acquire or prescribe a controlled substance;
79 (iv) relates to the practitioner's own prescribing practices, except when specifically
80 prohibited by the division by administrative rule;
81 (v) relates to the use of the controlled substance database by an employee of the
82 practitioner, described in Subsection (2)(e); or
83 (vi) relates to any use of the practitioner's Drug Enforcement Administration
84 identification number to obtain, attempt to obtain, prescribe, or attempt to prescribe, a
85 controlled substance;

86 (e) in accordance with Subsection (3)(a), an employee of a practitioner described in
87 Subsection (2)(d), for a purpose described in Subsection (2)(d)(i) or (ii), if:
88 (i) the employee is designated by the practitioner as an individual authorized to access
89 the information on behalf of the practitioner;
90 (ii) the practitioner provides written notice to the division of the identity of the
91 employee; and
92 (iii) the division:
93 (A) grants the employee access to the database; and
94 (B) provides the employee with a password that is unique to that employee to access
95 the database in order to permit the division to comply with the requirements of Subsection
96 58-37f-203 (3)(b) with respect to the employee;
97 (f) an employee of the same business that employs a licensed practitioner under
98 Subsection (2)(d) if:
99 (i) the employee is designated by the practitioner as an individual authorized to access
100 the information on behalf of the practitioner;
101 (ii) the practitioner and the employing business provide written notice to the division of
102 the identity of the designated employee; and
103 (iii) the division:
104 (A) grants the employee access to the database; and
105 (B) provides the employee with a password that is unique to that employee to access
106 the database in order to permit the division to comply with the requirements of Subsection
107 58-37f-203 (3)(b) with respect to the employee;
108 [(f)] (g) a licensed pharmacist having authority to dispense a controlled substance to
109 the extent the information is sought for the purpose of:
110 (i) dispensing or considering dispensing any controlled substance; or
111 (ii) determining whether a person:
112 (A) is attempting to fraudulently obtain a controlled substance from the pharmacist; or
113 (B) has fraudulently obtained, or attempted to fraudulently obtain, a controlled

114 substance from the pharmacist;
115 [(g)] (h) federal, state, and local law enforcement authorities, and state and local
116 prosecutors, engaged as a specified duty of their employment in enforcing laws:
117 (i) regulating controlled substances; or
118 (ii) investigating insurance fraud, Medicaid fraud, or Medicare fraud;
119 [(h)] (i) employees of the Office of Internal Audit and Program Integrity within the
120 Department of Health who are engaged in their specified duty of ensuring Medicaid program
121 integrity under Section 26-18-2.3 ;
122 [(i)] (j) a mental health therapist, if:
123 (i) the information relates to a patient who is:
124 (A) enrolled in a licensed substance abuse treatment program; and
125 (B) receiving treatment from, or under the direction of, the mental health therapist as
126 part of the patient's participation in the licensed substance abuse treatment program described
127 in Subsection (2)[(i)](j)(i)(A);
128 (ii) the information is sought for the purpose of determining whether the patient is
129 using a controlled substance while the patient is enrolled in the licensed substance abuse
130 treatment program described in Subsection (2)[(i)](j)(i)(A); and
131 (iii) the licensed substance abuse treatment program described in Subsection
132 (2)[(i)](j)(i)(A) is associated with a practitioner who:
133 (A) is a physician, a physician assistant, an advance practice registered nurse, or a
134 pharmacist; and
135 (B) is available to consult with the mental health therapist regarding the information
136 obtained by the mental health therapist, under this Subsection (2)[(i)](j), from the database;
137 [(j)] (k) an individual who is the recipient of a controlled substance prescription
138 entered into the database, upon providing evidence satisfactory to the division that the
139 individual requesting the information is in fact the individual about whom the data entry was
140 made;
141 [(k)] (l) the inspector general, or a designee of the inspector general, of the Office of

142 Inspector General of Medicaid Services, for the purpose of fulfilling the duties described in
143 Title 63J, Chapter 4a, Part 2, Office Duties and Powers; and
144 [(l)] (m) the following licensed physicians for the purpose of reviewing and offering an
145 opinion on an individual's request for workers' compensation benefits under Title 34A, Chapter
146 2, Workers' Compensation Act, or Title 34A, Chapter 3, Utah Occupational Disease Act:
147 (i) a member of the medical panel described in Section 34A-2-601 ; or
148 (ii) a physician offering a second opinion regarding treatment.
149 (3) (a) A practitioner described in Subsection (2)(d) may designate up to three
150 employees to access information from the database under Subsection (2)(e), (2)(f), or (4)(c).
151 (b) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
152 Administrative Rulemaking Act, to:
153 (i) establish background check procedures to determine whether an employee
154 designated under Subsection (2)(e)[(i)], (2)(f), or (4)(c) should be granted access to the
155 database[.]; and
156 (ii) establish the information to be provided by an emergency room employee under
157 Subsection (4).
158 (c) The division shall grant an employee designated under Subsection (2)(e)[(i)], (2)(f),
159 or (4)(c) access to the database, unless the division determines, based on a background check,
160 that the employee poses a security risk to the information contained in the database.
161 (4) (a) An individual who is employed in the emergency room of a hospital may
162 exercise access to the database under this Subsection (4) on behalf of a licensed practitioner if
163 the individual is designated under Subsection (4)(c) and the licensed practitioner:
164 (i) is employed in the emergency room;
165 (ii) is treating an emergency room patient for an emergency medical condition; and
166 (iii) requests that an individual employed in the emergency room and designated under
167 Subsection (4)(c) obtain information regarding the patient from the database as needed in the
168 course of treatment.
169 (b) The emergency room employee obtaining information from the database shall,

170 when gaining access to the database, provide to the database the name and any additional
171 identifiers regarding the requesting practitioner as required by division administrative rule
172 established under Subsection (3)(b).
173 (c) An individual employed in the emergency room under this Subsection (4) may
174 obtain information from the database as provided in Subsection (4)(a) if:
175 (i) the employee is designated by the practitioner as an individual authorized to access
176 the information on behalf of the practitioner;
177 (ii) the practitioner and the hospital operating the emergency room provide written
178 notice to the division of the identity of the designated employee; and
179 (iii) the division:
180 (A) grants the employee access to the database; and
181 (B) provides the employee with a password that is unique to that employee to access
182 the database in order to permit the division to comply with the requirements of Subsection
183 58-37f-203 (3)(b) with respect to the employee.
184 (d) The division may impose a fee, in accordance with Section 63J-1-504 , on a
185 practitioner who designates an employee under Subsection (2)(e)[(i)], (2)(f), or (4)(c) to pay for
186 the costs incurred by the division to conduct the background check and make the determination
187 described in Subsection (3)(b).
188 [(4)] (5) (a) An individual who is granted access to the database based on the fact that
189 the individual is a licensed practitioner or a mental health therapist shall be denied access to the
190 database when the individual is no longer licensed.
191 (b) An individual who is granted access to the database based on the fact that the
192 individual is a designated employee of a licensed practitioner shall be denied access to the
193 database when the practitioner is no longer licensed.
194 Section 2. Section 58-37f-601 is amended to read:
195 58-37f-601. Unlawful release or use of database information -- Criminal and civil
196 penalties.
197 (1) Any person who knowingly and intentionally releases any information in the

198 database or knowingly and intentionally releases any information obtained from other state or
199 federal prescription monitoring programs by means of the database in violation of the
200 limitations under Part 3, Access, is guilty of a third degree felony.
201 (2) (a) Any person who obtains or attempts to obtain information from the database or
202 from any other state or federal prescription monitoring programs by means of the database by
203 misrepresentation or fraud is guilty of a third degree felony.
204 (b) Any person who obtains or attempts to obtain information from the database for a
205 purpose other than a purpose authorized by this chapter or by rule is guilty of a third degree
206 felony.
207 (3) (a) Except as provided in Subsection (3)(e), a person may not knowingly and
208 intentionally use, release, publish, or otherwise make available to any other person any
209 information obtained from the database or from any other state or federal prescription
210 monitoring programs by means of the database for any purpose other than those specified in
211 Part 3, Access.
212 (b) Each separate violation of this Subsection (3) is a third degree felony and is also
213 subject to a civil penalty not to exceed $5,000.
214 (c) The procedure for determining a civil violation of this Subsection (3) [shall be] is in
215 accordance with Section 58-1-108 , regarding adjudicative proceedings within the division.
216 (d) Civil penalties assessed under this Subsection (3) shall be deposited in the General
217 Fund as a dedicated credit to be used by the division under Subsection 58-37f-502 (1).
218 (e) [Nothing in this] This Subsection (3) [prohibits] does not prohibit a person who
219 obtains information from the database under Subsection 58-37f-301 (2)(d) [or], (e), (f), or (4)(c)
220 from:
221 (i) including the information in the person's medical chart or file for access by a person
222 authorized to review the medical chart or file; or
223 (ii) providing the information to a person in accordance with the requirements of the
224 Health Insurance Portability and Accountability Act of 1996.