Senate Bill No. 614

(By Senators Klempa, Beach, Williams, Browning, Snyder, Palumbo, Wills, Foster, Minard, Tucker and Barnes)

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[Originating in the Committee on the Judiciary; reported February 28, 2011.]

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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 who are members of federally affiliated drug task forces 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, licensing authorities and prescribers that identify abnormal prescription practices; establishing an advisory committee to recommend the parameters of abnormal prescribing patterns and to recommend other actions that could reduce the amount of misuse of prescription drugs; establishing a felony offense for misusing information from the controlled substance database; requiring the Board of Pharmacy to implement a real-time database when available and when resources permit; requiring a report to the Legislative Oversight Commission on Health and Human Resources Accountability; 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, authorized agents of local law-enforcement agencies and deputy sheriffs as a member of a federally affiliated 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 law-enforcement personnel who have access to the controlled substance monitoring program shall be certified as a West Virginia law-enforcement officer and shall have successfully completed U. S. Drug Enforcement Administration Diversion Training and National Association of Drug Diversion Investigation Training. Provided, That all 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.

    (2) Subject to the provisions of subdivision (1) of this subsection, the board shall also review the West Virginia Controlled Substance Monitoring Program database and issue a monthly report that identifies or “red flags” abnormal or unusual practices of both medical professionals and patients who exceed pre-determined parameters. All reports produced by the board shall be kept confidential and may only be used in furtherance of law enforcement and disciplinary responsibilities regarding abnormal prescription and dispensing practices or by prescribers to more effectively manage the medications of their patients. 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 shall establish an advisory committee to recommend parameters to be used in identifying abnormal or unusual prescribing or dispensing patterns to the board. This advisory committee shall:

    (A) Consist of the following members: a member of the West Virginia Board of Medicine, a member of the West Virginia Board of Dental Examiners, a member of the West Virginia Board of Osteopathy, a member of the Controlled Substance Advisory Board of the Partnership for Community Well-being, a pain management physician and an oncologist recommended by the West Virginia Medical Association an oncologist, a palliative care physician recommended by the West Virginia Center on End of Life Care, a member of the West Virginia Board of Pharmacy, a member of the West Virginia Academy of Family Practice Physicians and a representative of a controlled substance wholesaler chosen by the Board of Pharmacy.

    (B) Recommended parameters to identify or “red flag” abnormal or unusual prescribing or dispensing patterns of use of controlled substances for both patients and medical professionals in order to prepare a monthly report.

    (C) Recommend parameters unique to different health care professionals due to the nature of their work such as palliative care physicians, oncologists, pain specialists and other specialties as determined by the advisory committee.

    (D) Make recommendations for training, research and other areas that are determined by the committee to have the potential to reduce inappropriate use of prescription drugs in this state.

    (b)Upon receipt of the committee's profession or specialty specific recommendations as to parameters each professional licensing board shall adopt parameters for abnormal or unusual prescribing or dispensing.

    (c) The Board of Pharmacy is responsible for establishing the advisory committee and providing administrative support. Further, the Board of Pharmacy shall notify health care professionals of their patients who have been identified to have abnormal or unusual medication patterns for the prescribers consideration in terms of future health care decisions. Health care professionals shall be identified who are prescribing or dispensing outside of the parameters established herein and shall be reported for further investigation to appropriate law-enforcement personnel and licensing authorities.

    (b)(d) 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)(e) 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)(f) 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)(g) 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)(h) Nothing in the article shall be construed to require a practitioner to access the West Virginia Controlled Substances Monitoring Program database.

    (i) Unauthorized access or use or unauthorized disclosure of the information in the database is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.

    (j) The Board of Pharmacy shall make every effort to update the database to a real-time database as soon as a system is available and when funding is available.

    (k) The Board of Pharmacy shall provide an annual report on the West Virginia Controlled Substance Monitoring Program to the Legislative Oversight Commission on Health and Human Resources Accountability with recommendations for needed legislation.