1     
CONTROLLED SUBSTANCE DATABASE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Edward H. Redd

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions of the Controlled Substance Database Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires the Division of Occupational and Professional Licensing to implement a
13     program for:
14               •     real-time submission of data into the controlled substance database; and
15               •     24-hour daily batch submission of data;
16          ▸     authorizes additional rulemaking authority;
17          ▸     provides that those accessing data from the database are responsible for costs
18     associated with accessing the data;
19          ▸     repeals provisions of a pilot program; and
20          ▸     makes technical corrections.
21     Money Appropriated in this Bill:
22          This bill appropriates in fiscal year 2016:
23          ▸     to the Department of Commerce - Division of Occupational and Professional
24     Licensing - Controlled Substance Database, as an ongoing appropriation:
25               •     from the General Fund, $46,000.
26     Other Special Clauses:
27          This bill provides a special effective date.

28     Utah Code Sections Affected:
29     AMENDS:
30          58-37f-203, as last amended by Laws of Utah 2014, Chapter 72
31          58-37f-301, as last amended by Laws of Utah 2014, Chapters 68 and 401
32          58-37f-501, as enacted by Laws of Utah 2010, Chapter 287 and last amended by
33     Coordination Clause, Laws of Utah 2010, Chapter 287
34     REPEALS:
35          58-37f-801, as last amended by Laws of Utah 2013, Chapter 167
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 58-37f-203 is amended to read:
39          58-37f-203. Submission, collection, and maintenance of data.
40          (1) (a) The division shall implement on a statewide basis, including non-resident
41     pharmacies as defined in Section 58-17b-102, a program of:
42          (i) real-time submission of the information required to be submitted under this part to
43     the controlled substance database; and
44          (ii) 24-hour daily batch submission of the information required to be submitted under
45     this part to the controlled substance database.
46          (b) The division shall comply with Title 63G, Chapter 6a, Utah Procurement Code.
47          [(1)] (2) (a) The pharmacist in charge of the drug outlet where a controlled substance is
48     dispensed shall submit the data described in this section to the division:
49          (i) in accordance with the requirements of this section;
50          (ii) in accordance with the procedures established by the division; and
51          (iii) in the format established by the division.
52          (b) A dispensing medical practitioner licensed under Chapter 17b, Part 8, Dispensing
53     Medical Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, shall comply with
54     the provisions of this section and the dispensing medical practitioner shall assume the duties of
55     the pharmacist under this chapter.
56          [(2)] (3) The pharmacist described in Subsection [(1)] (2) shall, for each controlled
57     substance dispensed by a pharmacist under the pharmacist's supervision other than those
58     dispensed for an inpatient at a health care facility, submit to the division the following

59     information:
60          (a) the name of the prescribing practitioner;
61          (b) the date of the prescription;
62          (c) the date the prescription was filled;
63          (d) the name of the individual for whom the prescription was written;
64          (e) positive identification of the individual receiving the prescription, including the
65     type of identification and any identifying numbers on the identification;
66          (f) the name of the controlled substance;
67          (g) the quantity of the controlled substance prescribed;
68          (h) the strength of the controlled substance;
69          (i) the quantity of the controlled substance dispensed;
70          (j) the dosage quantity and frequency as prescribed;
71          (k) the name of the drug outlet dispensing the controlled substance;
72          (l) the name of the pharmacist dispensing the controlled substance; and
73          (m) other relevant information as required by division rule.
74          [(3) (a)] (4) The division shall make rules, in accordance with Title 63G, Chapter 3,
75     Utah Administrative Rulemaking Act, to establish submission requirements under this part,
76     including the electronic format in which the information required under this section shall be
77     submitted to the division.
78          [(b)] (5) The division shall ensure that the database system records and maintains for
79     reference:
80          [(i)] (a) the identification of each individual who requests or receives information from
81     the database;
82          [(ii)] (b) the information provided to each individual; and
83          [(iii)] (c) the date and time that the information is requested or provided.
84          Section 2. Section 58-37f-301 is amended to read:
85          58-37f-301. Access to database.
86          (1) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
87     Administrative Rulemaking Act, to:
88          (a) effectively enforce the limitations on access to the database as described in this
89     part; and

90          (b) establish standards and procedures to ensure accurate identification of individuals
91     requesting information or receiving information without request from the database.
92          (2) The division shall make information in the database and information obtained from
93     other state or federal prescription monitoring programs by means of the database available only
94     to the following individuals, in accordance with the requirements of this chapter and division
95     rules:
96          (a) personnel of the division specifically assigned to conduct investigations related to
97     controlled substance laws under the jurisdiction of the division;
98          (b) authorized division personnel engaged in analysis of controlled substance
99     prescription information as a part of the assigned duties and responsibilities of their
100     employment;
101          (c) in accordance with a written agreement entered into with the department,
102     employees of the Department of Health:
103          (i) whom the director of the Department of Health assigns to conduct scientific studies
104     regarding the use or abuse of controlled substances, if the identity of the individuals and
105     pharmacies in the database are confidential and are not disclosed in any manner to any
106     individual who is not directly involved in the scientific studies; or
107          (ii) when the information is requested by the Department of Health in relation to a
108     person or provider whom the Department of Health suspects may be improperly obtaining or
109     providing a controlled substance;
110          (d) in accordance with a written agreement entered into with the department, a
111     designee of the director of the Department of Health, who is not an employee of the
112     Department of Health, whom the director of the Department of Health assigns to conduct
113     scientific studies regarding the use or abuse of controlled substances pursuant to an application
114     process established in rule by the Department of Health, if:
115          (i) the designee provides explicit information to the Department of Health regarding
116     the purpose of the scientific studies;
117          (ii) the scientific studies to be conducted by the designee:
118          (A) fit within the responsibilities of the Department of Health for health and welfare;
119          (B) are reviewed and approved by an Institutional Review Board that is approved for
120     human subject research by the United States Department of Health and Human Services; and

121          (C) are not conducted for profit or commercial gain; and
122          (D) are conducted in a research facility, as defined by division rule, that is associated
123     with a university or college in the state accredited by the Northwest Commission on Colleges
124     and Universities;
125          (iii) the designee protects the information as a business associate of the Department of
126     Health; and
127          (iv) the identity of the prescribers, patients, and pharmacies in the database are
128     de-identified, confidential, not disclosed in any manner to the designee or to any individual
129     who is not directly involved in the scientific studies;
130          (e) in accordance with the written agreement entered into with the department and the
131     Department of Health, authorized employees of a managed care organization, as defined in 42
132     C.F.R. Sec. 438, if:
133          (i) the managed care organization contracts with the Department of Health under the
134     provisions of Section 26-18-405 and the contract includes provisions that:
135          (A) require a managed care organization employee who will have access to information
136     from the database to submit to a criminal background check; and
137          (B) limit the authorized employee of the managed care organization to requesting either
138     the division or the Department of Health to conduct a search of the database regarding a
139     specific Medicaid enrollee and to report the results of the search to the authorized employee;
140     and
141          (ii) the information is requested by an authorized employee of the managed care
142     organization in relation to a person who is enrolled in the Medicaid program with the managed
143     care organization, and the managed care organization suspects the person may be improperly
144     obtaining or providing a controlled substance;
145          (f) a licensed practitioner having authority to prescribe controlled substances, to the
146     extent the information:
147          (i) (A) relates specifically to a current or prospective patient of the practitioner; and
148          (B) is provided to or sought by the practitioner for the purpose of:
149          (I) prescribing or considering prescribing any controlled substance to the current or
150     prospective patient;
151          (II) diagnosing the current or prospective patient;

152          (III) providing medical treatment or medical advice to the current or prospective
153     patient; or
154          (IV) determining whether the current or prospective patient:
155          (Aa) is attempting to fraudulently obtain a controlled substance from the practitioner;
156     or
157          (Bb) has fraudulently obtained, or attempted to fraudulently obtain, a controlled
158     substance from the practitioner;
159          (ii) (A) relates specifically to a former patient of the practitioner; and
160          (B) is provided to or sought by the practitioner for the purpose of determining whether
161     the former patient has fraudulently obtained, or has attempted to fraudulently obtain, a
162     controlled substance from the practitioner;
163          (iii) relates specifically to an individual who has access to the practitioner's Drug
164     Enforcement Administration identification number, and the practitioner suspects that the
165     individual may have used the practitioner's Drug Enforcement Administration identification
166     number to fraudulently acquire or prescribe a controlled substance;
167          (iv) relates to the practitioner's own prescribing practices, except when specifically
168     prohibited by the division by administrative rule;
169          (v) relates to the use of the controlled substance database by an employee of the
170     practitioner, described in Subsection (2)(g); or
171          (vi) relates to any use of the practitioner's Drug Enforcement Administration
172     identification number to obtain, attempt to obtain, prescribe, or attempt to prescribe, a
173     controlled substance;
174          (g) in accordance with Subsection (3)(a), an employee of a practitioner described in
175     Subsection (2)(f), for a purpose described in Subsection (2)(f)(i) or (ii), if:
176          (i) the employee is designated by the practitioner as an individual authorized to access
177     the information on behalf of the practitioner;
178          (ii) the practitioner provides written notice to the division of the identity of the
179     employee; and
180          (iii) the division:
181          (A) grants the employee access to the database; and
182          (B) provides the employee with a password that is unique to that employee to access

183     the database in order to permit the division to comply with the requirements of Subsection
184     58-37f-203[(3)(b)](5) with respect to the employee;
185          (h) an employee of the same business that employs a licensed practitioner under
186     Subsection (2)(f) if:
187          (i) the employee is designated by the practitioner as an individual authorized to access
188     the information on behalf of the practitioner;
189          (ii) the practitioner and the employing business provide written notice to the division of
190     the identity of the designated employee; and
191          (iii) the division:
192          (A) grants the employee access to the database; and
193          (B) provides the employee with a password that is unique to that employee to access
194     the database in order to permit the division to comply with the requirements of Subsection
195     58-37f-203[(3)(b)](5) with respect to the employee;
196          (i) a licensed pharmacist having authority to dispense a controlled substance to the
197     extent the information is provided or sought for the purpose of:
198          (i) dispensing or considering dispensing any controlled substance; or
199          (ii) determining whether a person:
200          (A) is attempting to fraudulently obtain a controlled substance from the pharmacist; or
201          (B) has fraudulently obtained, or attempted to fraudulently obtain, a controlled
202     substance from the pharmacist;
203          (j) in accordance with Subsection (3)(a), a licensed pharmacy technician who is an
204     employee of a pharmacy as defined in Section 58-17b-102, for the purposes described in
205     Subsection (2)(h)(i) or (ii), if:
206          (i) the employee is designated by the pharmacist-in-charge as an individual authorized
207     to access the information on behalf of a licensed pharmacist employed by the pharmacy;
208          (ii) the pharmacist-in-charge provides written notice to the division of the identity of
209     the employee; and
210          (iii) the division:
211          (A) grants the employee access to the database; and
212          (B) provides the employee with a password that is unique to that employee to access
213     the database in order to permit the division to comply with the requirements of Subsection

214     58-37f-203[(3)(b)](5) with respect to the employee;
215          (k) federal, state, and local law enforcement authorities, and state and local
216     prosecutors, engaged as a specified duty of their employment in enforcing laws:
217          (i) regulating controlled substances;
218          (ii) investigating insurance fraud, Medicaid fraud, or Medicare fraud; or
219          (iii) providing information about a criminal defendant to defense counsel, upon request
220     during the discovery process, for the purpose of establishing a defense in a criminal case;
221          (l) employees of the Office of Internal Audit and Program Integrity within the
222     Department of Health who are engaged in their specified duty of ensuring Medicaid program
223     integrity under Section 26-18-2.3;
224          (m) a mental health therapist, if:
225          (i) the information relates to a patient who is:
226          (A) enrolled in a licensed substance abuse treatment program; and
227          (B) receiving treatment from, or under the direction of, the mental health therapist as
228     part of the patient's participation in the licensed substance abuse treatment program described
229     in Subsection (2)(m)(i)(A);
230          (ii) the information is sought for the purpose of determining whether the patient is
231     using a controlled substance while the patient is enrolled in the licensed substance abuse
232     treatment program described in Subsection (2)(m)(i)(A); and
233          (iii) the licensed substance abuse treatment program described in Subsection
234     (2)(m)(i)(A) is associated with a practitioner who:
235          (A) is a physician, a physician assistant, an advance practice registered nurse, or a
236     pharmacist; and
237          (B) is available to consult with the mental health therapist regarding the information
238     obtained by the mental health therapist, under this Subsection (2)(m), from the database;
239          (n) an individual who is the recipient of a controlled substance prescription entered into
240     the database, upon providing evidence satisfactory to the division that the individual requesting
241     the information is in fact the individual about whom the data entry was made;
242          (o) the inspector general, or a designee of the inspector general, of the Office of
243     Inspector General of Medicaid Services, for the purpose of fulfilling the duties described in
244     Title 63A, Chapter 13, Part 2, Office and Powers; and

245          (p) the following licensed physicians for the purpose of reviewing and offering an
246     opinion on an individual's request for workers' compensation benefits under Title 34A, Chapter
247     2, Workers' Compensation Act, or Title 34A, Chapter 3, Utah Occupational Disease Act:
248          (i) a member of the medical panel described in Section 34A-2-601; or
249          (ii) a physician offering a second opinion regarding treatment.
250          (3) (a) (i) A practitioner described in Subsection (2)(f) may designate up to three
251     employees to access information from the database under Subsection (2)(g), (2)(h), or (4)(c).
252          (ii) A pharmacist described in Subsection (2)(i) who is a pharmacist-in-charge may
253     designate up to three employees to access information from the database under Subsection
254     (2)(j).
255          (b) The division shall make rules, in accordance with Title 63G, Chapter 3, Utah
256     Administrative Rulemaking Act, to:
257          (i) establish background check procedures to determine whether an employee
258     designated under Subsection (2)(g), (2)(h), or (4)(c) should be granted access to the database;
259     and
260          (ii) establish the information to be provided by an emergency room employee under
261     Subsection (4).
262          (c) The division shall grant an employee designated under Subsection (2)(g), (2)(h), or
263     (4)(c) access to the database, unless the division determines, based on a background check, that
264     the employee poses a security risk to the information contained in the database.
265          (4) (a) An individual who is employed in the emergency room of a hospital may
266     exercise access to the database under this Subsection (4) on behalf of a licensed practitioner if
267     the individual is designated under Subsection (4)(c) and the licensed practitioner:
268          (i) is employed in the emergency room;
269          (ii) is treating an emergency room patient for an emergency medical condition; and
270          (iii) requests that an individual employed in the emergency room and designated under
271     Subsection (4)(c) obtain information regarding the patient from the database as needed in the
272     course of treatment.
273          (b) The emergency room employee obtaining information from the database shall,
274     when gaining access to the database, provide to the database the name and any additional
275     identifiers regarding the requesting practitioner as required by division administrative rule

276     established under Subsection (3)(b).
277          (c) An individual employed in the emergency room under this Subsection (4) may
278     obtain information from the database as provided in Subsection (4)(a) if:
279          (i) the employee is designated by the practitioner as an individual authorized to access
280     the information on behalf of the practitioner;
281          (ii) the practitioner and the hospital operating the emergency room provide written
282     notice to the division of the identity of the designated employee; and
283          (iii) the division:
284          (A) grants the employee access to the database; and
285          (B) provides the employee with a password that is unique to that employee to access
286     the database in order to permit the division to comply with the requirements of Subsection
287     58-37f-203[(3)(b)](5) with respect to the employee.
288          (d) The division may impose a fee, in accordance with Section 63J-1-504, on a
289     practitioner who designates an employee under Subsection (2)(g), (2)(h), or (4)(c) to pay for the
290     costs incurred by the division to conduct the background check and make the determination
291     described in Subsection (3)(b).
292          (5) (a) An individual who is granted access to the database based on the fact that the
293     individual is a licensed practitioner or a mental health therapist shall be denied access to the
294     database when the individual is no longer licensed.
295          (b) An individual who is granted access to the database based on the fact that the
296     individual is a designated employee of a licensed practitioner shall be denied access to the
297     database when the practitioner is no longer licensed.
298          Section 3. Section 58-37f-501 is amended to read:
299          58-37f-501. Costs of operating database and recording, submitting, and accessing
300     information.
301          (1) All department and division costs necessary to establish and operate the database
302     shall be funded by appropriations from:
303          (a) the Commerce Service Account; and
304          (b) the General Fund.
305          (2) All costs associated with recording and submitting [data] information as required in
306     this chapter shall be assumed by the submitting pharmacy.

307          (3) All costs associated with accessing the information contained in the controlled
308     substance database shall be assumed by the accessing pharmacy, pharmaceutical facility, or
309     prescribing practitioner.
310          Section 4. Repealer.
311          This bill repeals:
312          Section 58-37f-801, Pilot program for real-time reporting for controlled substance
313     database -- Statewide implementation.
314          Section 5. Appropriation.
315          Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures Act, for
316     the fiscal year beginning July 1, 2015, and ending June 30, 2016, the following sums of money
317     are appropriated from resources not otherwise appropriated, or reduced from amounts
318     previously appropriated, out of the funds or accounts indicated. These sums of money are in
319     addition to any amounts previously appropriated for fiscal year 2016.
320          To Department of Commerce - Division of Occupational and Professional Licensing
321               From General Fund
$46,000

322               Schedule of Programs:
323                    Controlled Substance Database               $46,000
324          Section 6. Effective date.
325          This bill takes effect on July 1, 2015.






Legislative Review Note
     as of 2-23-15 4:33 PM


Office of Legislative Research and General Counsel