1     
PHARMACY SOFTWARE AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Rosemary T. Lesser

5     
Senate Sponsor: Evan J. Vickers

6     Cosponsors:
7     Cheryl K. Acton
8     Stewart E. Barlow
Stephen G. Handy
Suzanne Harrison
Candice B. Pierucci
Elizabeth Weight

9     

10     LONG TITLE
11     General Description:
12          This bill amends provisions relating to an electronic prescription for a controlled
13     substance.
14     Highlighted Provisions:
15          This bill:
16          ▸     requires a pharmacy software system that receives electronic prescriptions for a
17     controlled substance to allow an unfilled prescription to be transferred to a different
18     pharmacy; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          58-37-6, as last amended by Laws of Utah 2020, Chapter 81
27     ENACTS:
28          58-37-22, Utah Code Annotated 1953

29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 58-37-6 is amended to read:
32          58-37-6. License to manufacture, produce, distribute, dispense, administer, or
33     conduct research -- Issuance by division -- Denial, suspension, or revocation -- Records
34     required -- Prescriptions.
35          (1) (a) The division may adopt rules relating to the licensing and control of the
36     manufacture, distribution, production, prescription, administration, dispensing, conducting of
37     research with, and performing of laboratory analysis upon controlled substances within this
38     state.
39          (b) The division may assess reasonable fees to defray the cost of issuing original and
40     renewal licenses under this chapter pursuant to Section 63J-1-504.
41          (2) (a) (i) Every person who manufactures, produces, distributes, prescribes, dispenses,
42     administers, conducts research with, or performs laboratory analysis upon any controlled
43     substance in Schedules I through V within this state, or who proposes to engage in
44     manufacturing, producing, distributing, prescribing, dispensing, administering, conducting
45     research with, or performing laboratory analysis upon controlled substances included in
46     Schedules I through V within this state shall obtain a license issued by the division.
47          (ii) The division shall issue each license under this chapter in accordance with a
48     two-year renewal cycle established by rule. The division may by rule extend or shorten a
49     renewal period by as much as one year to stagger the renewal cycles it administers.
50          (b) Persons licensed to manufacture, produce, distribute, prescribe, dispense,
51     administer, conduct research with, or perform laboratory analysis upon controlled substances in
52     Schedules I through V within this state may possess, manufacture, produce, distribute,
53     prescribe, dispense, administer, conduct research with, or perform laboratory analysis upon
54     those substances to the extent authorized by their license and in conformity with this chapter.
55          (c) The following persons are not required to obtain a license and may lawfully possess
56     controlled substances included in Schedules II through V under this section:

57          (i) an agent or employee, except a sales representative, of any registered manufacturer,
58     distributor, or dispenser of any controlled substance, if the agent or employee is acting in the
59     usual course of the agent or employee's business or employment; however, nothing in this
60     subsection shall be interpreted to permit an agent, employee, sales representative, or detail man
61     to maintain an inventory of controlled substances separate from the location of the person's
62     employer's registered and licensed place of business;
63          (ii) a motor carrier or warehouseman, or an employee of a motor carrier or
64     warehouseman, who possesses a controlled substance in the usual course of the person's
65     business or employment; and
66          (iii) an ultimate user, or a person who possesses any controlled substance pursuant to a
67     lawful order of a practitioner.
68          (d) The division may enact rules waiving the license requirement for certain
69     manufacturers, producers, distributors, prescribers, dispensers, administrators, research
70     practitioners, or laboratories performing analysis if waiving the license requirement is
71     consistent with public health and safety.
72          (e) A separate license is required at each principal place of business or professional
73     practice where the applicant manufactures, produces, distributes, dispenses, conducts research
74     with, or performs laboratory analysis upon controlled substances.
75          (f) The division may enact rules providing for the inspection of a licensee or applicant's
76     establishment, and may inspect the establishment according to those rules.
77          (3) (a) (i) Upon proper application, the division shall license a qualified applicant to
78     manufacture, produce, distribute, conduct research with, or perform laboratory analysis upon
79     controlled substances included in Schedules I through V, unless it determines that issuance of a
80     license is inconsistent with the public interest.
81          (ii) The division may not issue a license to any person to prescribe, dispense, or
82     administer a Schedule I controlled substance except under Subsection (3)(a)(i).
83          (iii) In determining public interest under this Subsection (3)(a), the division shall
84     consider whether the applicant has:

85          (A) maintained effective controls against diversion of controlled substances and any
86     Schedule I or II substance compounded from any controlled substance into channels other than
87     legitimate medical, scientific, or industrial channels;
88          (B) complied with applicable state and local law;
89          (C) been convicted under federal or state laws relating to the manufacture, distribution,
90     or dispensing of substances;
91          (D) past experience in the manufacture of controlled dangerous substances;
92          (E) established effective controls against diversion; and
93          (F) complied with any other factors that the division establishes that promote the public
94     health and safety.
95          (b) Licenses granted under Subsection (3)(a) do not entitle a licensee to manufacture,
96     produce, distribute, conduct research with, or perform laboratory analysis upon controlled
97     substances in Schedule I other than those specified in the license.
98          (c) (i) Practitioners shall be licensed to administer, dispense, or conduct research with
99     substances in Schedules II through V if they are authorized to administer, dispense, or conduct
100     research under the laws of this state.
101          (ii) The division need not require a separate license for practitioners engaging in
102     research with nonnarcotic controlled substances in Schedules II through V where the licensee is
103     already licensed under this chapter in another capacity.
104          (iii) With respect to research involving narcotic substances in Schedules II through V,
105     or where the division by rule requires a separate license for research of nonnarcotic substances
106     in Schedules II through V, a practitioner shall apply to the division prior to conducting
107     research.
108          (iv) Licensing for purposes of bona fide research with controlled substances by a
109     practitioner considered qualified may be denied only on a ground specified in Subsection (4),
110     or upon evidence that the applicant will abuse or unlawfully transfer or fail to safeguard
111     adequately the practitioner's supply of substances against diversion from medical or scientific
112     use.

113          (v) Practitioners registered under federal law to conduct research in Schedule I
114     substances may conduct research in Schedule I substances within this state upon providing the
115     division with evidence of federal registration.
116          (d) Compliance by manufacturers, producers, and distributors with the provisions of
117     federal law respecting registration, excluding fees, entitles them to be licensed under this
118     chapter.
119          (e) The division shall initially license those persons who own or operate an
120     establishment engaged in the manufacture, production, distribution, dispensation, or
121     administration of controlled substances prior to April 3, 1980, and who are licensed by the
122     state.
123          (4) (a) Any license issued pursuant to Subsection (2) or (3) may be denied, suspended,
124     placed on probation, or revoked by the division upon finding that the applicant or licensee has:
125          (i) materially falsified any application filed or required pursuant to this chapter;
126          (ii) been convicted of an offense under this chapter or any law of the United States, or
127     any state, relating to any substance defined as a controlled substance;
128          (iii) been convicted of a felony under any other law of the United States or any state
129     within five years of the date of the issuance of the license;
130          (iv) had a federal registration or license denied, suspended, or revoked by competent
131     federal authority and is no longer authorized to manufacture, distribute, prescribe, or dispense
132     controlled substances;
133          (v) had the licensee's license suspended or revoked by competent authority of another
134     state for violation of laws or regulations comparable to those of this state relating to the
135     manufacture, distribution, or dispensing of controlled substances;
136          (vi) violated any division rule that reflects adversely on the licensee's reliability and
137     integrity with respect to controlled substances;
138          (vii) refused inspection of records required to be maintained under this chapter by a
139     person authorized to inspect them; or
140          (viii) prescribed, dispensed, administered, or injected an anabolic steroid for the

141     purpose of manipulating human hormonal structure so as to:
142          (A) increase muscle mass, strength, or weight without medical necessity and without a
143     written prescription by any practitioner in the course of the practitioner's professional practice;
144     or
145          (B) improve performance in any form of human exercise, sport, or game.
146          (b) The division may limit revocation or suspension of a license to a particular
147     controlled substance with respect to which grounds for revocation or suspension exist.
148          (c) (i) Proceedings to deny, revoke, or suspend a license shall be conducted pursuant to
149     this section and in accordance with the procedures set forth in Title 58, Chapter 1, Division of
150     Occupational and Professional Licensing Act, and conducted in conjunction with the
151     appropriate representative committee designated by the director of the department.
152          (ii) Nothing in this Subsection (4)(c) gives the Division of Occupational and
153     Professional Licensing exclusive authority in proceedings to deny, revoke, or suspend licenses,
154     except where the division is designated by law to perform those functions, or, when not
155     designated by law, is designated by the executive director of the Department of Commerce to
156     conduct the proceedings.
157          (d) (i) The division may suspend any license simultaneously with the institution of
158     proceedings under this section if it finds there is an imminent danger to the public health or
159     safety.
160          (ii) Suspension shall continue in effect until the conclusion of proceedings, including
161     judicial review, unless withdrawn by the division or dissolved by a court of competent
162     jurisdiction.
163          (e) (i) If a license is suspended or revoked under this Subsection (4), all controlled
164     substances owned or possessed by the licensee may be placed under seal in the discretion of the
165     division.
166          (ii) Disposition may not be made of substances under seal until the time for taking an
167     appeal has lapsed, or until all appeals have been concluded, unless a court, upon application,
168     orders the sale of perishable substances and the proceeds deposited with the court.

169          (iii) If a revocation order becomes final, all controlled substances shall be forfeited.
170          (f) The division shall notify promptly the Drug Enforcement Administration of all
171     orders suspending or revoking a license and all forfeitures of controlled substances.
172          (g) If an individual's Drug Enforcement Administration registration is denied, revoked,
173     surrendered, or suspended, the division shall immediately suspend the individual's controlled
174     substance license, which shall only be reinstated by the division upon reinstatement of the
175     federal registration, unless the division has taken further administrative action under
176     Subsection (4)(a)(iv), which would be grounds for the continued denial of the controlled
177     substance license.
178          (5) (a) A person licensed under Subsection (2) or (3) shall maintain records and
179     inventories in conformance with the record keeping and inventory requirements of federal and
180     state law and any additional rules issued by the division.
181          (b) (i) A physician, dentist, naturopathic physician, veterinarian, practitioner, or other
182     individual who is authorized to administer or professionally use a controlled substance shall
183     keep a record of the drugs received by the individual and a record of all drugs administered,
184     dispensed, or professionally used by the individual otherwise than by a prescription.
185          (ii) An individual using small quantities or solutions or other preparations of those
186     drugs for local application has complied with this Subsection (5)(b) if the individual keeps a
187     record of the quantity, character, and potency of those solutions or preparations purchased or
188     prepared by the individual, and of the dates when purchased or prepared.
189          (6) Controlled substances in Schedules I through V may be distributed only by a
190     licensee and pursuant to an order form prepared in compliance with division rules or a lawful
191     order under the rules and regulations of the United States.
192          (7) (a) An individual may not write or authorize a prescription for a controlled
193     substance unless the individual is:
194          (i) a practitioner authorized to prescribe drugs and medicine under the laws of this state
195     or under the laws of another state having similar standards; and
196          (ii) licensed under this chapter or under the laws of another state having similar

197     standards.
198          (b) An individual other than a pharmacist licensed under the laws of this state, or the
199     pharmacist's licensed intern, as required by Sections 58-17b-303 and 58-17b-304, may not
200     dispense a controlled substance.
201          (c) (i) A controlled substance may not be dispensed without the written prescription of
202     a practitioner, if the written prescription is required by the federal Controlled Substances Act.
203          (ii) That written prescription shall be made in accordance with Subsection (7)(a) and in
204     conformity with Subsection (7)(d).
205          (iii) In emergency situations, as defined by division rule, controlled substances may be
206     dispensed upon oral prescription of a practitioner, if reduced promptly to writing on forms
207     designated by the division and filed by the pharmacy.
208          (iv) Prescriptions reduced to writing by a pharmacist shall be in conformity with
209     Subsection (7)(d).
210          (d) Except for emergency situations designated by the division, an individual may not
211     issue, fill, compound, or dispense a prescription for a controlled substance unless the
212     prescription is signed by the prescriber in ink or indelible pencil or is signed with an electronic
213     signature of the prescriber as authorized by division rule, and contains the following
214     information:
215          (i) the name, address, and registry number of the prescriber;
216          (ii) the name, address, and age of the person to whom or for whom the prescription is
217     issued;
218          (iii) the date of issuance of the prescription; and
219          (iv) the name, quantity, and specific directions for use by the ultimate user of the
220     controlled substance.
221          (e) A prescription may not be written, issued, filled, or dispensed for a Schedule I
222     controlled substance unless:
223          (i) the individual who writes the prescription is licensed under Subsection (2); and
224          (ii) the prescribed controlled substance is to be used in research.

225          (f) Except when administered directly to an ultimate user by a licensed practitioner,
226     controlled substances are subject to the restrictions of this Subsection (7)(f).
227          (i) A prescription for a Schedule II substance may not be refilled.
228          (ii) A Schedule II controlled substance may not be filled in a quantity to exceed a
229     one-month's supply, as directed on the daily dosage rate of the prescriptions.
230          (iii) (A) Except as provided in Subsection (7)(f)(iii)(B), a prescription for a Schedule II
231     or Schedule III controlled substance that is an opiate and that is issued for an acute condition
232     shall be completely or partially filled in a quantity not to exceed a seven-day supply as directed
233     on the daily dosage rate of the prescription.
234          (B) Subsection (7)(f)(iii)(A) does not apply to a prescription issued for a surgery when
235     the practitioner determined that a quantity exceeding seven days is needed, in which case the
236     practitioner may prescribe up to a 30-day supply, with a partial fill at the discretion of the
237     practitioner.
238          (C) Subsection (7)(f)(iii)(A) does not apply to prescriptions issued for complex or
239     chronic conditions which are documented as being complex or chronic in the medical record.
240          (D) A pharmacist is not required to verify that a prescription is in compliance with
241     Subsection (7)(f)(iii).
242          (iv) A Schedule III or IV controlled substance may be filled only within six months of
243     issuance, and may not be refilled more than six months after the date of its original issuance or
244     be refilled more than five times after the date of the prescription unless renewed by the
245     practitioner.
246          (v) All other controlled substances in Schedule V may be refilled as the prescriber's
247     prescription directs, but they may not be refilled one year after the date the prescription was
248     issued unless renewed by the practitioner.
249          (vi) Any prescription for a Schedule II substance may not be dispensed if it is not
250     presented to a pharmacist for dispensing by a pharmacist or a pharmacy intern within 30 days
251     after the date the prescription was issued, or 30 days after the dispensing date, if that date is
252     specified separately from the date of issue.

253          (vii) A practitioner may issue more than one prescription at the same time for the same
254     Schedule II controlled substance, but only under the following conditions:
255          (A) no more than three prescriptions for the same Schedule II controlled substance may
256     be issued at the same time;
257          (B) no one prescription may exceed a 30-day supply; and
258          (C) a second or third prescription shall include the date of issuance and the date for
259     dispensing.
260          [(g) (i) Beginning January 1, 2022, each prescription issued for a controlled substance
261     shall be transmitted electronically as an electronic prescription unless the prescription is:]
262          [(A) for a patient residing in an assisted living facility as that term is defined in Section
263     26-21-2, a long-term care facility as that term is defined in Section 58-31b-102, or a
264     correctional facility as that term is defined in Section 64-13-1;]
265          [(B) issued by a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice
266     Act;]
267          [(C) dispensed by a Department of Veterans Affairs pharmacy;]
268          [(D) issued during a temporary technical or electronic failure at the practitioner's or
269     pharmacy's location; or]
270          [(E) issued in an emergency situation.]
271          [(ii) The division, in collaboration with the appropriate boards that govern the licensure
272     of the licensees who are authorized by the division to prescribe or to dispense controlled
273     substances, shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative
274     Rulemaking Act to:]
275          [(A) require that controlled substances prescribed or dispensed under Subsection
276     (7)(g)(i)(D) indicate on the prescription that the prescribing practitioner or the pharamacy is
277     experiencing a technical difficulty or an electronic failure;]
278          [(B) define an emergency situation for purposes of Subsection (7)(g)(i)(E);]
279          [(C) establish additional exemptions to the electronic prescription requirements
280     established in this Subsection (7)(g);]

281          [(D) establish guidelines under which a prescribing practitioner or a pharmacy may
282     obtain an extension of up to two additional years to comply with Subsection (7)(g)(i);]
283          [(E) establish a protocol to follow if the pharmacy that receives the electronic
284     prescription is not able to fill the prescription; and]
285          [(F) establish requirements that comply with federal laws and regulations for software
286     used to issue and dispense electronic prescriptions.]
287          [(h)] (g) An order for a controlled substance in Schedules II through V for use by an
288     inpatient or an outpatient of a licensed hospital is exempt from all requirements of this
289     Subsection (7) if the order is:
290          (i) issued or made by a prescribing practitioner who holds an unrestricted registration
291     with the federal Drug Enforcement Administration, and an active Utah controlled substance
292     license in good standing issued by the division under this section, or a medical resident who is
293     exempted from licensure under Subsection 58-1-307(1)(c);
294          (ii) authorized by the prescribing practitioner treating the patient and the prescribing
295     practitioner designates the quantity ordered;
296          (iii) entered upon the record of the patient, the record is signed by the prescriber
297     affirming the prescriber's authorization of the order within 48 hours after filling or
298     administering the order, and the patient's record reflects the quantity actually administered; and
299          (iv) filled and dispensed by a pharmacist practicing the pharmacist's profession within
300     the physical structure of the hospital, or the order is taken from a supply lawfully maintained by
301     the hospital and the amount taken from the supply is administered directly to the patient
302     authorized to receive it.
303          [(i)] (h) A practitioner licensed under this chapter may not prescribe, administer, or
304     dispense a controlled substance to a child, without first obtaining the consent required in
305     Section 78B-3-406 of a parent, guardian, or person standing in loco parentis of the child except
306     in cases of an emergency. For purposes of Subsection (7)[(i)](h), "child" has the same meaning
307     as defined in Section 78A-6-105, and "emergency" means any physical condition requiring the
308     administration of a controlled substance for immediate relief of pain or suffering.

309          [(j)] (i) A practitioner licensed under this chapter may not prescribe or administer
310     dosages of a controlled substance in excess of medically recognized quantities necessary to
311     treat the ailment, malady, or condition of the ultimate user.
312          [(k)] (j) A practitioner licensed under this chapter may not prescribe, administer, or
313     dispense any controlled substance to another person knowing that the other person is using a
314     false name, address, or other personal information for the purpose of securing the controlled
315     substance.
316          [(l)] (k) A person who is licensed under this chapter to manufacture, distribute, or
317     dispense a controlled substance may not manufacture, distribute, or dispense a controlled
318     substance to another licensee or any other authorized person not authorized by this license.
319          [(m)] (l) A person licensed under this chapter may not omit, remove, alter, or obliterate
320     a symbol required by this chapter or by a rule issued under this chapter.
321          [(n)] (m) A person licensed under this chapter may not refuse or fail to make, keep, or
322     furnish any record notification, order form, statement, invoice, or information required under
323     this chapter.
324          [(o)] (n) A person licensed under this chapter may not refuse entry into any premises
325     for inspection as authorized by this chapter.
326          [(p)] (o) A person licensed under this chapter may not furnish false or fraudulent
327     material information in any application, report, or other document required to be kept by this
328     chapter or willfully make any false statement in any prescription, order, report, or record
329     required by this chapter.
330          (8) (a) (i) Any person licensed under this chapter who is found by the division to have
331     violated any of the provisions of Subsections (7)(k) through (o) or Subsection (10) is subject to
332     a penalty not to exceed $5,000. The division shall determine the procedure for adjudication of
333     any violations in accordance with Sections 58-1-106 and 58-1-108.
334          (ii) The division shall deposit all penalties collected under Subsection (8)(a)(i) [in] into
335     the General Fund as a dedicated credit to be used by the division under Subsection
336     58-37f-502(1).

337          (iii) The director may collect a penalty that is not paid by:
338          (A) referring the matter to a collection agency; or
339          (B) bringing an action in the district court of the county where the person against
340     whom the penalty is imposed resides or in the county where the office of the director is located.
341          (iv) A county attorney or the attorney general of the state shall provide legal assistance
342     and advice to the director in an action to collect a penalty.
343          (v) A court shall award reasonable attorney fees and costs to the prevailing party in an
344     action brought by the division to collect a penalty.
345          (b) Any person who knowingly and intentionally violates Subsections (7)(h) through (j)
346     or Subsection (10) is:
347          (i) upon first conviction, guilty of a class B misdemeanor;
348          (ii) upon second conviction, guilty of a class A misdemeanor; and
349          (iii) on third or subsequent conviction, guilty of a third degree felony.
350          (c) Any person who knowingly and intentionally violates Subsections (7)(k) through
351     (o) shall upon conviction be guilty of a third degree felony.
352          (9) Any information communicated to any licensed practitioner in an attempt to
353     unlawfully procure, or to procure the administration of, a controlled substance is not considered
354     to be a privileged communication.
355          (10) A person holding a valid license under this chapter who is engaged in medical
356     research may produce, possess, administer, prescribe, or dispense a controlled substance for
357     research purposes as licensed under Subsection (2) but may not otherwise prescribe or dispense
358     a controlled substance listed in Section 58-37-4.2.
359          Section 2. Section 58-37-22 is enacted to read:
360          58-37-22. Electronic prescriptions for controlled substances.
361          (1) Beginning January 1, 2022, each prescription issued for a controlled substance shall
362     be transmitted electronically as an electronic prescription unless the prescription is:
363          (a) for a patient residing in an assisted living facility as that term is defined in Section
364     26-21-2, a long-term care facility as that term is defined in Section 58-31b-102, or a

365     correctional facility as that term is defined in Section 64-13-1;
366          (b) issued by a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice
367     Act;
368          (c) dispensed by a Department of Veterans Affairs pharmacy;
369          (d) issued during a temporary technical or electronic failure at the practitioner's or
370     pharmacy's location; or
371          (e) issued in an emergency situation.
372          (2) The division, in collaboration with the appropriate boards that govern the licensure
373     of the licensees who are authorized by the division to prescribe or to dispense controlled
374     substances, shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative
375     Rulemaking Act, to:
376          (a) require that controlled substances prescribed or dispensed under Subsection (1)(d)
377     indicate on the prescription that the prescribing practitioner or the pharmacy is experiencing a
378     technical difficulty or an electronic failure;
379          (b) define an emergency situation for purposes of Subsection (1)(e);
380          (c) establish additional exemptions to the electronic prescription requirements
381     established in this section;
382          (d) establish guidelines under which a prescribing practitioner or a pharmacy may
383     obtain an extension of up to two additional years to comply with Subsection (1);
384          (e) establish a protocol to follow if the pharmacy that receives the electronic
385     prescription is not able to fill the prescription; and
386          (f) establish requirements that comply with federal laws and regulations for software
387     used to issue and dispense electronic prescriptions.
388          (3) Beginning July 1, 2024, a pharmacy software program for receiving an electronic
389     prescription for a controlled substance shall be capable of electronically transferring a
390     prescription to a different pharmacy:
391          (a) upon the request of the patient or the practitioner;
392          (b) with the approval of a pharmacist at the originating pharmacy; and

393          (c) if the prescription is unfilled.