Senate Bill No. 489
(By Senators Foster and Sypolt)
[Introduced February 10, 2011; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]
A BILL to amend and reenact §60A-9-5 of the Code of West Virginia, 1931, as amended, relating to permitting specific law-enforcement officials access to certain confidential pharmaceutical information to identify unusual prescription drug behavior; requiring the State Board of Pharmacy to issue periodic reports to certain law-enforcement officials who identify abnormal prescription practices; and granting rule-making authority.
Be it enacted by the Legislature of West Virginia:
That §60A-9-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-5. Confidentiality; limited access to records; period of retention; no civil liability for required reporting.
(a) (1) 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, the elected sheriff of each county, authorized agents of local law-enforcement agencies as a member of a drug task force, authorized agents of the federal Drug Enforcement Administration, duly authorized agents of the Bureau for Medical Services and the Workers’ Compensation Commission, duly authorized agents of the Office of the Chief Medical Examiner for use in post-mortem examinations, 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 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 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.
(2) The board shall review the West Virginia Controlled Substances Monitoring Program database and issue a quarterly report to persons identified in this subsection that identifies or “red flags” abnormal or unusual practices of both medical professionals and patients who exceed predetermined parameters. The report shall also identify or “red flag” individuals who have exceeded their limit of pseudoephedrine. All reports and information received by these individuals from the board shall be kept confidential and may only be used in furtherance of their law enforcement responsibilities regarding abnormal prescription and dispensing practices. 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.
(3) The board, in conjunction with other appropriate boards, agencies, committees or commissions such as the Controlled Substances Advisory Board, shall establish the parameters identified in subdivision (2) of this subsection.
(b) All practitioners, as that term is defined in section one hundred-one, article two of this chapter who prescribe or dispense schedule II, III or IV controlled substances shall, on or before July 1, 2011, have online or other form of electronic access to the West Virginia Controlled Substances Monitoring Program database;
(c) Persons or entities with access to the West Virginia Controlled Substances Monitoring Program database pursuant to this section may, pursuant to rules promulgated by the Board of Pharmacy, delegate appropriate personnel to have access to said database;
(d) Good faith reliance by a practitioner on information contained in the West Virginia Controlled Substances Monitoring Program database in prescribing or dispensing or refusing or declining to prescribe or dispense a schedule II, III or IV controlled substance shall constitute an absolute defense in any civil or criminal action brought due to prescribing or dispensing or refusing or declining to prescribe or dispense; and
(e) The Board of Pharmacy is hereby authorized to promulgate an emergency rule under chapter twenty-nine-a to effectuate the amendments to this section enacted during the 2010 and 2011 Regular Session Sessions of the Legislature.
(f) Nothing in the article shall be construed to require a practitioner to access the West Virginia Controlled Substances Monitoring Program database.
NOTE: The purpose of this bill is to permit specific law- enforcement officials access to certain confidential pharmaceutical information to identify unusual or abnormal drug practices of both patients and professionals. The bill also grants rulemaking authority
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.