Senate Bill No. 524

(By Senators Stollings, Unger, Jenkins, Klempa, Browning, Laird and Foster)

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[Introduced February 6, 2012; referred to the Committee on Government Organization; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §60A-9-5 and §60A-9-7 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §60A-9-5a, all relating generally to requiring various boards that regulate professions with prescriptive authority to require persons licensed by the board to conduct an initial search of the Controlled Substance Monitoring Program database when prescribing a course of treatment that includes prescribing of pain-relieving controlled substances and an annual search of the Controlled Substance Monitoring Program database for certain patients; and setting forth penalties.

Be it enacted by the Legislature of West Virginia:

    That §60A-9-5 and §60A-9-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §60A-9-5a, all 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) 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 members 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. 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.

    (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 under 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 constitutes 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 Regular Session of the Legislature.

    (f) Nothing in the article shall be construed to require requires a practitioner to access the West Virginia Controlled Substances Monitoring Program database except as provided in section five-a of this article.

§60A-9-5a. Practitioner requirements to conduct annual search of the database; penalties; required rulemaking.

    (a) Upon initial prescribing or dispensing of any pain-relieving controlled substances and at least annually thereafter, all persons with prescriptive authority and in possession of a valid Drug Enforcement Administration Registration Identification number and, who are licensed by the Board of Medicine as set forth in article three, chapter thirty of this code, the Board of Registered Professional Nurses, as set forth in article seven, chapter thirty of this code, the Board of Dental Examiners as set forth in article four, chapter thirty of this code and the Board of Osteopathy as set forth in article fourteen, chapter thirty of this code, shall access the West Virginia Controlled Substances Monitoring Program database for information regarding specific patients for whom they are providing pain-relieving controlled substances as part of a course of treatment for chronic, nonmalignant pain but who are not suffering from a terminal illness. The information obtained from accessing the West Virginia Controlled Substances Monitoring Program for the patient shall be documented in the medical record. A pain-relieving controlled substance is defined as set forth in section one, article three-a, chapter thirty of this code.

    (b) The various boards mentioned in subsection (a) of this section shall promulgate both emergency and legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.

§60A-9-7. Criminal penalties.

    (a) Any A person who is required to submit information to the State Board of Pharmacy pursuant to the provisions of this article who fails to do so as directed by the board shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500.

    (b) Any A person who is required to submit information to the State Board of Pharmacy pursuant to the provisions of this article who knowingly and willfully refuses to submit the information required by this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than six months or fined not more than $1,000, or both confined and fined.

    (c) Any A person who is required by the provisions of this article to submit information to the State Board of Pharmacy who knowingly submits thereto information known to that person to be false or fraudulent shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than one year or fined not more than $5,000, or both confined and fined.

    (d) Any A person granted access to the information required by the provisions of this article to be maintained by the State Board of Pharmacy who shall willfully disclose the information required to be maintained by this article willfully discloses the information in a manner inconsistent with a legitimate law-enforcement purpose, a legitimate professional regulatory purpose, the terms of a court order or as otherwise expressly authorized by the provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months or fined not more than $1,000, or both confined and fined.

    (e) A person who is required to access the information contained in the West Virginia Controlled Substances Monitoring Program database as set forth in subsection (a), section five-a of this article, and fails to do so as directed by the rules of their licensing board is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 .

    NOTE: The purpose of this bill is to require professions with prescriptive authority to search the Controlled Substance Monitoring Program database annually for specified patients. The bill also sets forth criminal penalties for a failure to perform this search.

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