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Introduced Version House Bill 2195 History

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hb2195 intr
H. B. 2195


(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[Introduced February 10, 2005; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact §60A-2-212 of the Code of West Virginia, 1931, as amended; to amend and reenact §60A-3-302 and §60A-3-308 of said code; to amend and reenact §60A-4-401 of said code; to amend said code by adding thereto a new section, designated §60A-4-411a; and to amend and reenact §60A-9-3, §60A-9-4 and §60A-9-5 of said code, all relating to limiting the purchase of substances used in the production of methamphetamines and methamphetamine labs; providing that certain substances containing ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers are Schedule V substances; limiting access to such substances; providing procedures for purchasing such substances from pharmacists or licensed pharmacy technicians; providing for the registration of every wholesaler, manufacturer or distributor of certain drug products containing such substances; creating a central repository regarding the reporting of information related to such substances; and providing for penalties.

Be it enacted by the Legislature of West Virginia:
That §60A-2-212 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §60A-3-302 and §60A-3-308 of said code be amended and reenacted; that §60A-4-401 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §60A-4-411a; and that §60A-9-3, §60A-9-4 and §60A-9-5 of said code be amended and reenacted, all to read as follows:
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-212. Schedule V.

(a) Schedule V shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name or brand name designated, listed in this section.
(b) Narcotic drugs. -- Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation containing any of the following narcotic drugs and their salts, as set forth below:
(1) Buprenorphine.

(c) Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound, mixture or preparation containing any of the following narcotic drugs or their salts calculated as the free anhydrous base or alkaloid in limited quantities as set forth below, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
(2) Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams;
(3) Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams;
(4) Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;
(5) Not more than 100 milligrams of opium per 100 milliliters or per 100 grams;
(6) Not more than 0.5 milligrams of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
(d) Stimulants. Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers and salts of isomers:
(1) Pyrovalerone;
(e) Any compound, mixture or preparation containing any detectable quantity of ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers.
ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND DISPENSING OF CONTROLLED SUBSTANCES.

§60A-3-302. Registration required; effect of registration; exemptions; waiver; inspections.

(a) Every person who manufactures, distributes or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution or dispensing of any controlled substance within this state, must obtain annually a registration issued by the State Board of Pharmacy or the appropriate department, board or agency, as the case may be, as specified in section three hundred one, in accordance with its rules. Every wholesaler, manufacturer or distributor of any drug product containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts or optical isomers, or salts of optical isomers shall obtain a registration issued by the State Board of Pharmacy in accordance with rules promulgated by the State Board of Pharmacy.
(b) Persons registered by said State Board of Pharmacy or said appropriate department, board, or agency, as the case may be, under this act to manufacture, distribute, dispense or conduct research with controlled substances may possess, manufacture, distribute, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this article.
(c) (1) The following persons need not register and may lawfully possess, deliver, or transport into this state controlled substances under this act:
(A) An agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance if he or she is acting in the usual course of his or her business or employment;
(B) A common or contract carrier or warehouseman, or an employee thereof, whose possession, delivery or transportation into this state of any controlled substance is in the usual course of a lawful business or employment;
(2) The following persons need not register and may lawfully possess or transport into this state controlled substances under this act: An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a Schedule V substance.
(d) The said State Board of Pharmacy or said appropriate department, board or agency, as the case may be, may waive by rule the requirement for registration of certain manufacturers, distributors or dispensers if it finds it consistent with the public health and safety.
(e) A separate registration is required at each principal place of business or professional practice where the applicant manufactures, distributes or dispenses controlled substances.
(f) The said State Board of Pharmacy or said appropriate department, board or agency, as the case may be, may inspect the establishment of a registrant or applicant for registration in accordance with the rule of said State Board of Pharmacy or said appropriate department, board, or agency, as the case may be. §60A-3-308. Prescriptions and dispensing of controlled substances.
(a) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in Schedule II may be dispensed without the written prescription of a practitioner.
(b) In emergency situations, as defined by rule of the said appropriate department, board or agency, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing and filed by the pharmacy. Prescription shall be retained in conformity with the requirements of section 306. No prescription for a Schedule II substance may be refilled.
(c) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in Schedule III or IV, which is a prescription drug as determined under appropriate state or federal statute, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner.
(d) (1) A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medicinal purpose: Provided, That buprenorphine shall be dispensed only by prescription pursuant to subsections (a), (b) and (c) of this section: Provided, however, That the controlled substances included in subsection (e), section two hundred twelve, article two of this chapter shall be dispensed, sold or distributed only by a physician or a pharmacy by a pharmacist or licensed pharmacy technician.
(2) If the substance described in subsection (e), section two hundred twelve, article two of this chapter is dispensed, sold or distributed in a pharmacy:
(A) The substance shall be dispensed, sold or distributed only by a pharmacist or a licensed pharmacist technician; and
(B) Any person purchasing, receiving or otherwise acquiring any such substance shall:
(i) Produce a photo identification showing the date of birth of such person; and
(ii) Sign a form as provided in section three, article nine of this chapter showing: The date of the transaction; the name of the person; and the name and the amount of the substance purchased, received or otherwise acquired.
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A substance classified in Schedule IV, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both;
(iv) A substance classified in Schedule V, except for substances classified in subsection (e), section two hundred twelve, article two of this chapter, is guilty of a misdemeanor, and, upon conviction, may be confined in the county jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both.
(b) Except as authorized by this chapter act, it is unlawful for any person to create, deliver or possess with intent to deliver, a counterfeit substance.
Any person who violates this subsection with respect to:
(i) A counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(ii) Any other counterfeit substance classified in Schedule I, II, or III, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both;
(iv) A counterfeit substance classified in Schedule V, is guilty of a misdemeanor, and, upon conviction, may be confined in the county jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both.
(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this act. Any person who violates this subsection is guilty of a misdemeanor, and disposition may be made under section 407, subject to the limitations specified in said section 407, or upon conviction, such person may be confined in the county jail not less than ninety days nor more than six months, or fined not more than one thousand dollars, or both: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of less than 15 grams of marihuana shall be disposed of under said section 407.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver, or possess with intent to distribute or deliver, an imitation controlled substance; or
(2) To create, possess or sell or otherwise transfer any equipment with the intent that such equipment shall be used to apply a trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, upon a counterfeit substance, an imitation controlled substance, or the container or label of a counterfeit substance or an imitation controlled substance.
(3) Any person who violates this subsection is guilty of a misdemeanor, and, upon conviction, may be imprisoned in the county jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both. Any person being eighteen years old or more, who violates subdivision (1) of this subsection, and, in so doing distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than such person, is guilty of a felony, and, upon conviction, may be imprisoned in the penitentiary a correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both.
(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.
§60A-4-411a. Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of methamphetamine or another controlled substance; presumption; exceptions; penalties.

(a) (1) No person may purchase, receive or otherwise acquire drug products containing more than nine (9) grams of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers, or salts of optical isomers within any thirty-day period unless such drug products are prescribed by a physician.
(2) A violation of this subsection is a misdemeanor offense and is punishable by incarceration in jail for a period not to exceed one year and a fine of not more than twenty five thousand dollars. A person convicted of a second or subsequent offense, under this subsection, is guilty of a felony and, upon conviction, may be imprisoned in a correctional facility of this state for not less than one more than five years, or fined not nor more than ten thousand dollars, or both.
(b) (1) Except as authorized by this chapter it shall be unlawful for a person to knowingly possess the following substances:
(A) A substance containing ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers or salts of optical isomers with intent to use the product as a precursor to manufacture methamphetamine or another controlled substance;
(B) A substance containing ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers or salts of optical isomers in a pure form or a state of form which is, or has been, altered or converted from the state or form in which these chemicals are, or were, commercially distributed.
(2) Except as provided in this subsection, possession of a drug product containing more than nine (9) grams of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, optical isomers or salts of optical isomers shall constitute a rebuttable presumption of the intent to use the product as a precursor to methamphetamine or another controlled substance. The rebuttable presumption established by this subsection does not apply to the following persons who are lawfully possessing drug products:
(A) A retail distributor of drug products or wholesaler;
(B) A wholesale drug distributor, or its agents, licensed by the Board of Pharmacy;
(C) A manufacturer of drug products, or its agents, licensed by the Board of Pharmacy;
(D) A pharmacist or licensed pharmacist technician;
(E) A licensed healthcare professional possessing the drug products in the course of carrying out his or her profession; and
(F) A person who possesses the drug product with a prescription from a physician.
(3) Any person who violates this subsection is guilty of a felony and, upon conviction, may be imprisoned in a correctional facility of this state for not less than two nor more than ten years, or fined not more than twenty-five thousand dollars, or both.
(c) (1) Any wholesaler, manufacturer, or distributor of drug products containing ephedrine, pseudoephedrine or phenylpropanolamine, or their salts or optical isomers, or salts of optical isomers shall obtain a registration annually from the State Board of Pharmacy. Any such wholesaler, manufacturer, or distributor shall keep complete records of all transactions involving such drug products including the names of all parties involved in the transaction and amount of the drug products involved. The records shall be kept readily retrievable and separate from all other invoices or records of transactions not involving such drug products, and shall be maintained for not less than three years.
(2) Any substances possessed without a registration as provided in this section are subject to forfeiture upon conviction for a violation of this section.
(3) In addition to any administrative penalties provided by law, any violation of this subsection is a misdemeanor, punishable upon conviction by a fine in an amount not more than ten thousand dollars.
(4) As used in this section:
(A) "Manufacturer" means any person within this state who produces, compounds packages, or in any manner initially prepares for sale or use any drug product described in subsection (e), section two-hundred twelve, article two of this chapter, or any such person in another state if they cause the products to be compounded, packaged or transported into this state;
(B) "Wholesaler" means any person within this state or another state, other than a manufacturer, who sells, transfers or in any manner furnishes a drug product described in subsection (e), section two hundred twelve, article two of this chapter to any other person in this state for the purpose of being resold;
(C) "Distributor" means any person within this state or another state, other than a manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product described in subsection (e), section two hundred twelve, article two of this chapter to any person who is not the ultimate user or consumer of the product; and
(D) "Readily retrievable" means available for inspection without prior notice at the registration address if that address is within West Virginia. If the registration address is in a state other than West Virginia, it means records must be furnished within three working days by courier, facsimile, mail or electronic mail.
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-3. Reporting system requirements; implementation; central repository requirement.

(a) On or before the first day of September, two thousand two, the Board of Pharmacy shall implement a program wherein a central repository is established and maintained which shall contain such information as is required by the provisions of this article regarding Schedule II, III and IV controlled substance prescriptions written or filled in this state. In implementing this program, the Board of Pharmacy shall consult with the West Virginia State Police, the licensing boards of practitioners affected by this article and affected practitioners.
(b) On or before the first day of July, two thousand five, the Board of Pharmacy shall implement a program wherein a central repository is established and maintained which shall contain such information as is required by the provisions of this article regarding the substances contained in subsection (e), section two-hundred twelve, article two of this chapter.
(b) (c) The program programs authorized by subsection subsections (a) and (b) of this section shall be designed to minimize inconvenience to patients, prescribing practitioners and pharmacists while effectuating the collection and storage of the required information. The State Board of Pharmacy shall allow reporting of the required information by electronic data transfer where feasible, and where not feasible, on reporting forms promulgated by the Board of Pharmacy. The information required to be submitted by the provisions of this article shall be required to be filed no more frequently than once a week.
(c) (d) (1) The State Board of Pharmacy shall provide for the electronic transmission of the information required to be provided by this article by and through the use of a toll-free telephone line. (2) A dispenser, who does not have an automated record keeping system capable of producing an electronic report in the established format may request a waiver from electronic reporting. The request for a waiver shall be made to the State Board of Pharmacy in writing and shall be granted if the dispenser agrees in writing to report the data by submitting a completed "Pharmacy Universal Claim Form" as defined by legislative rule. §60A-9-4. Required information.
(a) (1) Except for the substances referenced in subsection (e), section two-hundred twelve, article two of this chapter, whenever a medical services provider dispenses a controlled substance listed in the provisions of section two hundred six, article two of this chapter, or whenever a prescription for the controlled substance is filled by: (i) A pharmacist or pharmacy in this state; (ii) a hospital, or other health care facility, for out-patient use; or (iii) a pharmacy or pharmacist, licensed by the Board of Pharmacy, but situated outside this state for delivery to a person residing in this state, the medical services provider, health care facility, pharmacist or pharmacy shall, in a manner prescribed by rules promulgated by the Board of Pharmacy under this article, report the following information, as applicable:
(1) (A) The name, address, pharmacy prescription number and DEA controlled substance registration number of the dispensing pharmacy;
(2) (B) The name, address and birth date of the person for whom the prescription is written;
(3) (C) The name, address and drug enforcement administration controlled substances registration number of the practitioner writing the prescription;
(4) (D) The name and national drug code number of the Schedule II, III and IV controlled substance dispensed;
(5) (E) The quantity and dosage of the Schedule II, III and IV controlled substance dispensed;
(6) (F) The date the prescription was filled; and
(7) (G) The number of refills, if any, authorized by the prescription.
(b) (2) The Board of Pharmacy may prescribe by rule promulgated under this article the form to be used in prescribing a Schedule II, III and IV substance if, in the determination of the Board, the administration of the requirements of this section would be facilitated.
(c) (3) Reporting required by this section is not required for a drug administered directly to a patient or a drug dispensed by a practitioner at a facility licensed by the state: Provided, That the quantity dispensed is limited to an amount adequate to treat the patient for a maximum of seventy-two hours with no greater than two seventy-two hour cycles in any fifteen day period of time.
(b) Whenever a pharmacist or licensed pharmacist technician dispenses, sells or distributes the substance referred to in subsection (e), section two-hundred twelve, article two of this chapter, the pharmacist or licensed pharmacist technician shall, in a manner prescribed by rules promulgated by the Board of Pharmacy under this article, collect and report the following information:
(1) The date of the transaction;
(2) The name of the person; and
(3) The name and the amount of the substance purchased, received, or otherwise acquired.
§60A-9-5. Confidentiality; limited access to records; period of retention; no civil liability for required reporting.

The information required by this article to be kept by the State Board of Pharmacy is confidential and is open to inspection only by inspectors and agents of the State Board of Pharmacy, members of the West Virginia State Police expressly authorized by the Superintendent of the West Virginia State Police to have access to the information, authorized agents of local law-enforcement agencies as a member of a drug task force, authorized agents of the Federal Drug Enforcement Agency, duly authorized agents of licensing boards of practitioners in this state and other states authorized to prescribe Schedules II, III and IV controlled substances, prescribing practitioners and pharmacists and persons with an enforceable court order or regulatory agency administrative subpoena: Provided, That all information released by the State Board of Pharmacy, except for information relating to substances referred to in subsection (e), section two hundred twelve, article two of this chapter, must be related to a specific patient or a specific individual or entity under investigation by any of the above parties except that practitioners who prescribe controlled substances may request specific data related to their drug enforcement administration controlled substance registration number or for the purpose of providing treatment to a patient. The Board shall maintain the information required by this article for a period of not less than five years. Notwithstanding any other provisions of this code to the contrary, data obtained under the provisions of this article may be used for compilation of educational, scholarly or statistical purposes as long as the identities of persons or entities remain confidential. No individual or entity required to report under section four of this article may be subject to a claim for civil damages or other civil relief for the reporting of information to the Board of Pharmacy as required under and in accordance with the provisions of this article.

NOTE: The purpose of this bill is to limit access to certain chemicals used in the production of methamphetamines.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§60A-4-411a is new; therefore, strike-throughs and underscoring have been omitted.
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