As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 71

Representative Luckie 

Cosponsor: Representative Boyd 

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A BILL

To amend sections 4729.75, 4729.79, 4729.83, and

1

4729.99 and to enact sections 4729.791, 4729.85,

2

4729.86, 4729.861, 4729.87, 4729.871, 4729.88,

3

4729.89, 4729.90, 4729.91, and 4729.92 of the

4

Revised Code to create the Ohio Official

5

Prescription Program and to require prescribers

6

and pharmacists to obtain information from the

7

Ohio Automated Rx Reporting System.

8

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4729.75, 4729.79, 4729.83, and	9
4729.99 be amended and sections 4729.791, 4729.85, 4729.86,	10
4729.861, 4729.87, 4729.871, 4729.88, 4729.89, 4729.90, 4729.91,	11
and 4729.92 of the Revised Code be enacted to read as follows:	12

Sec. 4729.75. The state board of pharmacy may establish and	13
maintain a drug database. The board shall use the drug database to	14
monitor the misuse and diversion of controlled substances, as	15
defined in section 3719.01 of the Revised Code, and other	16
dangerous drugs the board includes in the database pursuant to	17
rules adopted under section 4729.83 of the Revised Code. In	18
establishing and maintaining the database, the board shall	19
electronically collect information pursuant to sections 4729.77	20
and 4729.78 of the Revised Code and shall disseminate information	21
as authorized or required by sectionssection 4729.79 and as	22
required by sections 4729.791 and 4729.80 of the Revised Code. The	23
board's collection and dissemination of information shall be	24
conducted in accordance with rules adopted under section 4729.83	25
of the Revised Code.	26

Sec. 4729.79. (A) If the state board of pharmacy establishes	27
and maintains a drug database pursuant to section 4729.75 of the	28
Revised Code, the board may provide information from the database	29
in accordance with the following:	30

(1) On receipt of a request from a designated representative	31
of a government entity responsible for the licensure, regulation,	32
or discipline of licensed health care professionals authorized to	33
prescribe drugs, the board may provide to the representative	34
information from the database relating to the professional who is	35
the subject of an active investigation being conducted by the	36
government entity.	37

(2) On receipt of a request from a federal officer, or a	38
state or local officer of this or any other state, whose duties	39
include enforcing laws relating to drugs, the board may provide to	40
the officer information from the database relating to the person	41
who is the subject of an active investigation being conducted by	42
the officer's employing government entity.	43

(3) Pursuant to a subpoena issued by a grand jury, the board	44
may provide to the grand jury information from the database	45
relating to the person who is the subject of an investigation	46
being conducted by the grand jury.	47

(4) On receipt of a request from a pharmacist or prescriber,	48
the board may provide to the requestor information from the	49
database relating to a current patient of the requestor, if the	50
requestor certifies in a form specified by the board that it is	51
for the purpose of providing medical or pharmaceutical treatment	52
to the patient who is the subject of the request.	53

(5) On receipt of a request from an individual seeking the	54
individual's own database information in accordance with the	55
procedure established in rules adopted under section 4729.83 of	56
the Revised Code, the board may provide to the individual the	57
individual's own database information.	58

(B) The state board of pharmacy shall maintain a record of	59
each individual or entity that requests information from the	60
database pursuant to this section. In accordance with rules	61
adopted under section 4729.83 of the Revised Code, the board may	62
use the records to document and report statistics and law	63
enforcement outcomes.	64

The board may provide records of an individual's requests for	65
database information to the following:	66

(1) A designated representative of a government entity that	67
is responsible for the licensure, regulation, or discipline of	68
licensed health care professionals authorized to prescribe drugs	69
who is involved in an active investigation being conducted by the	70
government entity of the individual who submitted the requests for	71
database information;	72

(2) A federal officer, or a state or local officer of this or	73
any other state, whose duties include enforcing laws relating to	74
drugs and who is involved in an active investigation being	75
conducted by the officer's employing government entity of the	76
individual who submitted the requests for database information.	77

(C) Information contained in the database and any information	78
obtained from it is not a public record. Information contained in	79
the records of requests for information from the database is not a	80
public record. Information that does not identify a person may be	81
released in summary, statistical, or aggregate form.	82

(D) Nothing in this section requires a pharmacist or	83
prescriber to obtain information about a patient from the	84
database. A pharmacist or prescriber shall not be held liable in	85
damages to any person in any civil action for injury, death, or	86
loss to person or property on the basis that the pharmacist or	87
prescriber did or did not seek or obtain information from the	88
database.	89

Sec. 4729.791. (A) If the state board of pharmacy establishes	90
and maintains a drug database pursuant to section 4729.75 of the	91
Revised Code, the board shall grant access to the information in	92
the database to each licensed health professional authorized to	93
prescribe drugs and to each pharmacist practicing in this state.	94
The board shall grant access to the database in a manner that	95
enables each prescriber and pharmacist to comply with division (B)	96
of this section.	97

(B) Before a prescriber issues a prescription to a patient	98
for a drug included in the database and before a pharmacist	99
dispenses such a drug, the prescriber and pharmacist shall review	100
information in the database that pertains to the patient. At any	101
other time, a prescriber or pharmacist may review information in	102
the database pertaining to a patient for the purpose of providing	103
medical treatment or pharmacist services to the patient.	104

(C) A prescriber or pharmacist shall not be held liable in	105
damages to any person in a civil action for injury, death, or loss	106
to person or property on the basis that the prescriber or	107
pharmacist did or did not review information in the database	108
pertaining to a patient.	109

Sec. 4729.83. For purposes of establishing and maintaining a	110
drug database pursuant to section 4729.75 of the Revised Code, the	111
state board of pharmacy shall adopt rules in accordance with	112
Chapter 119. of the Revised Code to carry out and enforce sections	113
4729.75 to 4729.82 of the Revised Code. The rules shall specify	114
all of the following:	115

(A) A means of identifying each patient, terminal distributor	116
of dangerous drugs, and each purchase at wholesale of dangerous	117
drugs about which information is entered into the drug database;	118

(B) Requirements for the transmission of information from	119
terminal distributors and wholesale distributors of dangerous	120
drugs for purposes of the database;	121

(C) An electronic format for the submission of information	122
from terminal distributors and wholesale distributors of dangerous	123
drugs;	124

(D) A procedure whereby a terminal distributor or a wholesale	125
distributor of dangerous drugs unable to submit information	126
electronically may obtain a waiver to submit information in	127
another format;	128

(E) A procedure whereby the board may grant a request from a	129
law enforcement agency or a government entity responsible for the	130
licensure, regulation, or discipline of licensed health care	131
professionals authorized to prescribe drugs that information that	132
has been stored for two years be retained when the information	133
pertains to an open investigation being conducted by the agency or	134
entity;	135

(F) A procedure whereby a terminal or wholesale distributor	136
may apply for an extension to the time by which information must	137
be transmitted to the board;	138

(G) A procedure whereby a person or government entity to	139
which the board is authorized to provide information may submit a	140
request to the board for the information and the board may verify	141
the identity of the requestor;	142

(H) A procedure whereby the board can use the database	143
request records required by division (B) of section 4729.79 of the	144
Revised Code to document and report statistics and law enforcement	145
outcomes;	146

(I) A procedure whereby an individual may request the	147
individual's own database information and the board may verify the	148
identity of the requestor;	149

(J) A reasonable fee that the board may charge under section	150
4729.82 of the Revised Code for providing an individual with the	151
individual's own database information pursuant to section 4729.79	152
of the Revised Code;	153

(K) The specific dangerous drugs other than controlled	154
substances that must be included in the database;	155

(L) The types of pharmacies licensed as terminal distributors	156
of dangerous drugs that are required to submit prescription	157
information to the board pursuant to section 4729.77 of the	158
Revised Code;	159

(M) The manner in which prescribers and pharmacists are to be	160
granted access to information in the database for purposes of	161
section 4729.791 of the Revised Code.	162

Sec. 4729.85.  (A) There is hereby created the Ohio official	163
prescription program. The state board of pharmacy shall implement	164
and administer the program in accordance with sections 4729.85 to	165
4729.92 of the Revised Code.	166

(B) The board may establish an advisory committee to assist	167
the board with the implementation and administration of the	168
program. If the board establishes the committee, the board shall	169
appoint members in such a manner that the constituencies with	170
interests in the program, as determined by the board, have	171
representation on the committee.	172

Sec. 4729.86.  (A) The state board of pharmacy shall prepare	173
an official prescription form that meets all of the following	174
requirements:	175

(1) Contains one or more industry-recognized features	176
designed to prevent the unauthorized copying of a completed or	177
blank prescription form;	178

(2) Contains one or more industry-recognized features	179
designed to prevent the erasure or modification of information	180
written on the prescription form;	181

(3) Contains one or more industry-recognized features	182
designed to prevent the use of counterfeit prescription forms;	183

(4) Contains a unique identification number;

184

(5) Any other requirement necessary for compliance with 42	185
U.S.C. 1396b(i)(23).	186

(B) Beginning twelve months after the effective date of this	187
section, the board shall do all of the following:	188

(1) On the request of a prescriber who is practicing in this	189
state and has paid the program maintenance fee in accordance with	190
section 4729.88 of the Revised Code, issue official prescription	191
forms to the prescriber in quantities and at intervals the board	192
determines appropriate;	193

(2) Keep records indicating which unique identification	194
numbers are issued with the official prescription forms and which	195
prescribers received those numbers;	196

(3) Cease to issue official prescription forms to prescribers	197
if the board determines that at least ninety per cent of the	198
prescriptions issued in this state are being transmitted to	199
pharmacies through electronic prescription transmission systems.	200

(C) For purposes of determining under division (B)(3) of this	201
section, the percentage of prescriptions that are transmitted	202
through electronic prescription transmission systems, the board	203
shall select the criteria to be used in making the determination,	204
including the period of time that is to be represented by the	205
percentage.	206

Sec. 4729.861.  The state board of pharmacy may fulfill its	207
duties under section 4729.86 of the Revised Code by contracting	208
with a vendor for the preparation and issuance of official	209
prescription forms. To be eligible for the contract, each printing	210
facility used by the vendor to print official prescription forms	211
must have a two-year history of audits conducted pursuant to the	212
statement on auditing standards number 70 of the American	213
institute of certified public accountants and must maintain annual	214
audits conducted pursuant to the statement on auditing standards	215
number 70.	216

If the board contracts with a vendor under this section, the	217
board shall establish security requirements for the procurement of	218
official prescription forms through the vendor.	219

Sec. 4729.87.  (A) A prescriber shall notify the state board	220
of pharmacy when either of the following events occurs:	221

(1) Loss, destruction, theft, or unauthorized use of an	222
official prescription form issued to the prescriber under section	223
4729.86 of the Revised Code;	224

(2) Failure to receive official prescription forms requested	225
under section 4729.86 of the Revised Code.	226

(B) The notification required under division (A)(1) of this	227
section shall be made immediately. The notification required under	228
division (A)(2) of this section shall be made within a reasonable	229
time after the prescriber requests the forms from the board.	230

Sec. 4729.871.  (A)(1) Beginning twelve months after the	231
effective date of this section, the state board of pharmacy shall	232
provide pharmacies or pharmacists in this state with a list of all	233
unique identification numbers marked on the official prescription	234
forms that are reported under section 4729.87 of the Revised Code	235
as being lost, destroyed, stolen, used without authorization, or	236
not received.	237

(2) A pharmacy or pharmacist shall not dispense a drug	238
pursuant to a prescription that is subject to the Ohio official	239
prescription program if the prescription contains a unique	240
identification number included on the list provided under division	241
(A)(1) of this section.	242

(B)(1) Beginning twelve months after the effective date of	243
this section or when the department of job and family services	244
determines it is capable of using the unique identification	245
numbers described in section 4729.86 of the Revised Code for	246
purposes of the prescription drug coverage provided under the	247
medicaid program established under Chapter 5111. of the Revised	248
Code, whichever is later, the board shall provide the department	249
with a list containing the following:	250

(a) All unique identification numbers marked on the official	251
prescription forms issued under section 4729.86 of the Revised	252
Code;	253

(b) All unique identification numbers marked on the forms	254
that are reported under section 4729.87 of the Revised Code as	255
being lost, destroyed, stolen, used without authorization, or not	256
received.	257

(2) When processing claims for payment under the medicaid	258
program for drugs dispensed pursuant to prescriptions that are	259
subject to division (B) of section 4729.89 of the Revised Code,	260
the department shall deny a claim that is associated with such a	261
prescription if the prescription was not written on an official	262
prescription form issued under section 4729.86 of the Revised Code	263
or the prescription contained a unique identification number	264
included pursuant to division (B)(1)(b) of this section on the	265
list provided under division (B)(1) of this section.	266

(C) Beginning twelve months after the effective date of this	267
section, the board may provide the list described in division	268
(B)(1) of this section to any entity that provides health care	269
coverage for prescription drugs, including a health insuring	270
corporation, sickness and accident insurer, or public or private	271
employer that offers health care benefits through a self-insurance	272
plan or other self-insurance system. The board may impose a fee	273
for providing the list under this division in an amount	274
established by the board in rules adopted under section 4729.92 of	275
the Revised Code.	276

(D) The lists provided by the board under this section shall	277
be provided in a format and at intervals established by the board	278
in rules adopted under section 4729.92 of the Revised Code. The	279
board may issue updates to the lists in a format and at intervals	280
established by the board in those rules.	281

Sec. 4729.88. (A) Except as provided in division (D) of this	282
section, each prescriber who is practicing in this state shall pay	283
to the state board of pharmacy a program maintenance fee. The	284
board shall not issue official prescription forms to a prescriber	285
who has not paid the fee in accordance with this section.	286

(B) In each of the five years immediately following the	287
effective date of this section, the board shall assess the program	288
maintenance fee on each prescriber who intends to practice in this	289
state during the year for which the fee is assessed. The board	290
shall select the date on which payment of the fee is due.	291

(C)(1) The amount of the program maintenance fee shall be as	292
follows:	293

(a) For prescribers who issue one hundred or more	294
prescriptions annually, one hundred dollars;	295

(b) For prescribers who issue fewer than one hundred	296
prescriptions annually, fifty dollars;	297

(c) For prescribers who serve primarily as instructors at the	298
university or college level, fifty dollars.	299

(2) For purposes of determining the amount of a prescriber's	300
program maintenance fee, each prescriber who is required to pay	301
the fee shall provide to the board, in a format selected by the	302
board, the total number of prescriptions issued by that prescriber	303
in the calendar year immediately preceding the year for which the	304
fee is being assessed.	305

(D) The program maintenance fee does not apply to a	306
prescriber who issues prescriptions only through an electronic	307
prescription transmission system except when the prescriber is	308
required to issue a written prescription because the drug being	309
prescribed is a controlled substance.	310

Sec. 4729.89.  (A) As used in this section, "institutional	311
facility" means either of the following at which medical care is	312
provided on site and medical records documenting episodes of care,	313
including drugs ordered and administered, are maintained:	314

(1) A hospital as defined in section 3727.01 of the Revised	315
Code;	316

(2) A facility licensed by the state board of pharmacy and by	317
the department of health, department of rehabilitation and	318
correction, or department of developmental disabilities.	319

(B)(1) Except as provided in division (B)(2) of this section,	320
beginning eighteen months after the effective date of this	321
section, no prescriber shall issue a prescription unless the	322
prescription is written on an official prescription form issued	323
under section 4729.86 of the Revised Code.	324

(2) Division (B)(1) of this section does not apply to any of	325
the following:	326

(a) A prescription that is transmitted to a pharmacy through	327
an electronic prescription transmission system;	328

(b) A prescription that is transmitted to a pharmacy by a	329
facsimile machine;	330

(c) A prescription that is an oral order for drugs that is	331
later reduced to writing;	332

(d) A prescription for a patient in an institutional	333
facility;	334

(e) A prescription issued outside this state.

335

(C) Beginning eighteen months after the effective date of	336
this section, no pharmacist shall dispense a drug pursuant to a	337
prescription that is subject to division (B) of this section if	338
the prescription is not written on an official prescription form	339
issued under section 4729.86 of the Revised Code.	340

(D) No prescriber shall fail to comply with section 4729.87	341
of the Revised Code.	342

(E) Beginning eighteen months after the effective date of	343
this section, no prescriber shall issue a written prescription on	344
a prescription form that was not issued to the prescriber under	345
section 4729.86 of the Revised Code.	346

(F) Beginning eighteen months after the effective date of	347
this section, no prescriber to whom an official prescription form	348
is issued under section 4729.86 of the Revised Code shall transfer	349
the form to another prescriber.	350

Sec. 4729.90.  There is hereby created in the state treasury	351
the Ohio official prescription program fund. All moneys received	352
under sections 4729.85 to 4729.92 of the Revised Code shall be	353
deposited in the fund. The moneys in the fund shall be used solely	354
for purposes of implementing and administering the Ohio official	355
prescription program and, if a drug database is established and	356
maintained pursuant to section 4729.75 of the Revised Code, for	357
purposes of implementing and administering sections 4729.75 to	358
4729.84 of the Revised Code.	359

Sec. 4729.91.  A pharmacy, pharmacist, or prescriber is not	360
liable for damages in a civil action or subject to disciplinary	361
action by the state board of pharmacy for acting in good faith in	362
complying with the Ohio official prescription program pursuant to	363
sections 4729.85 to 4729.92 of the Revised Code.	364

Sec. 4729.92.  In accordance with Chapter 119. of the Revised	365
Code, the state board of pharmacy shall adopt rules that the board	366
considers necessary to implement and administer the Ohio official	367
prescription program under sections 4729.85 to 4729.92 of the	368
Revised Code.	369

Sec. 4729.99.  (A) Whoever violates section 4729.16, division	370
(A) or (B) of section 4729.38, or section 4729.57 of the Revised	371
Code is guilty of a minor misdemeanor. Each day's violation	372
constitutes a separate offense.	373

(B) Whoever violates section 4729.27, 4729.28, or 4729.36 of	374
the Revised Code is guilty of a misdemeanor of the third degree.	375
Each day's violation constitutes a separate offense. If the	376
offender previously has been convicted of or pleaded guilty to a	377
violation of this chapter, that person is guilty of a misdemeanor	378
of the second degree.	379

(C) Whoever violates section 4729.32, 4729.33, or 4729.34 of	380
the Revised Code is guilty of a misdemeanor.	381

(D) Whoever violates division (A), (B), (D), or (E) of	382
section 4729.51 of the Revised Code is guilty of a misdemeanor of	383
the first degree.	384

(E)(1) Whoever violates section 4729.37, division (C)(2) of	385
section 4729.51, division (J) of section 4729.54, or section	386
4729.61 of the Revised Code is guilty of a felony of the fifth	387
degree. If the offender previously has been convicted of or	388
pleaded guilty to a violation of this chapter or a violation of	389
Chapter 2925. or 3719. of the Revised Code, that person is guilty	390
of a felony of the fourth degree.	391

(2) If an offender is convicted of or pleads guilty to a	392
violation of section 4729.37, division (C) of section 4729.51,	393
division (J) of section 4729.54, or section 4729.61 of the Revised	394
Code, if the violation involves the sale, offer to sell, or	395
possession of a schedule I or II controlled substance, with the	396
exception of marihuana, and if the court imposing sentence upon	397
the offender finds that the offender as a result of the violation	398
is a major drug offender, as defined in section 2929.01 of the	399
Revised Code, and is guilty of a specification of the type	400
described in section 2941.1410 of the Revised Code, the court, in	401
lieu of the prison term authorized or required by division (E)(1)	402
of this section and sections 2929.13 and 2929.14 of the Revised	403
Code and in addition to any other sanction imposed for the offense	404
under sections 2929.11 to 2929.18 of the Revised Code, shall	405
impose upon the offender, in accordance with division (D)(3)(a) of	406
section 2929.14 of the Revised Code, the mandatory prison term	407
specified in that division and may impose an additional prison	408
term under division (D)(3)(b) of that section.	409

(3) Notwithstanding any contrary provision of section 3719.21	410
of the Revised Code, the clerk of court shall pay any fine imposed	411
for a violation of section 4729.37, division (C) of section	412
4729.51, division (J) of section 4729.54, or section 4729.61 of	413
the Revised Code pursuant to division (A) of section 2929.18 of	414
the Revised Code in accordance with and subject to the	415
requirements of division (F) of section 2925.03 of the Revised	416
Code. The agency that receives the fine shall use the fine as	417
specified in division (F) of section 2925.03 of the Revised Code.	418

(F) Whoever violates section 4729.531 of the Revised Code or	419
any rule adopted thereunder or section 4729.532 of the Revised	420
Code is guilty of a misdemeanor of the first degree.	421

(G) Whoever violates division (C)(1) of section 4729.51 of	422
the Revised Code is guilty of a felony of the fourth degree. If	423
the offender has previously been convicted of or pleaded guilty to	424
a violation of this chapter, or of a violation of Chapter 2925. or	425
3719. of the Revised Code, that person is guilty of a felony of	426
the third degree.	427

(H) Whoever violates division (C)(3) of section 4729.51 of	428
the Revised Code is guilty of a misdemeanor of the first degree.	429
If the offender has previously been convicted of or pleaded guilty	430
to a violation of this chapter, or of a violation of Chapter 2925.	431
or 3719. of the Revised Code, that person is guilty of a felony of	432
the fifth degree.	433

(I)(1) Whoever violates division (B) of section 4729.42 of	434
the Revised Code is guilty of unauthorized pharmacy-related drug	435
conduct. Except as otherwise provided in this section,	436
unauthorized pharmacy-related drug conduct is a misdemeanor of the	437
second degree. If the offender previously has been convicted of or	438
pleaded guilty to a violation of division (B), (C), (D), or (E) of	439
that section, unauthorized pharmacy-related drug conduct is a	440
misdemeanor of the first degree on a second offense and a felony	441
of the fifth degree on a third or subsequent offense.	442

(2) Whoever violates division (C) or (D) of section 4729.42	443
of the Revised Code is guilty of permitting unauthorized	444
pharmacy-related drug conduct. Except as otherwise provided in	445
this section, permitting unauthorized pharmacy-related drug	446
conduct is a misdemeanor of the second degree. If the offender	447
previously has been convicted of or pleaded guilty to a violation	448
of division (B), (C), (D), or (E) of that section, permitting	449
unauthorized pharmacy-related drug conduct is a misdemeanor of the	450
first degree on a second offense and a felony of the fifth degree	451
on a third or subsequent offense.	452

(3) Whoever violates division (E) of section 4729.42 of the	453
Revised Code is guilty of the offense of falsification under	454
section 2921.13 of the Revised Code. In addition to any other	455
sanction imposed for the violation, the offender is forever	456
disqualified from engaging in any activity specified in division	457
(B)(1), (2), or (3) of section 4729.42 of the Revised Code and	458
from performing any function as a health care professional or	459
health care worker. As used in this division, "health care	460
professional" and "health care worker" have the same meanings as	461
in section 2305.234 of the Revised Code.	462

(4) Notwithstanding any contrary provision of section 3719.21	463
of the Revised Code or any other provision of law that governs the	464
distribution of fines, the clerk of the court shall pay any fine	465
imposed pursuant to division (I)(1), (2), or (3) of this section	466
to the state board of pharmacy if the board has adopted a written	467
internal control policy under division (F)(2) of section 2925.03	468
of the Revised Code that addresses fine moneys that it receives	469
under Chapter 2925. of the Revised Code and if the policy also	470
addresses fine moneys paid under this division. The state board of	471
pharmacy shall use the fines so paid in accordance with the	472
written internal control policy to subsidize the board's law	473
enforcement efforts that pertain to drug offenses.	474

(J) Whoever violates section 4729.89 of the Revised Code is	475
guilty of a misdemeanor of the fourth degree.	476

Section 2.  That existing sections 4729.75, 4729.79, 4729.83,	477
and 4729.99 of the Revised Code are hereby repealed.	478

Section 3.  Section 4729.99 of the Revised Code, as amended	479
by this act, shall take effect eighteen months after the effective	480
date of this act.	481

Section 4.  As used in this section, "prescriber" has the	482
same meaning as in section 4729.01 of the Revised Code.	483

Notwithstanding the provisions of section 4729.88 of the	484
Revised Code that require prescribers to pay an annual program	485
maintenance fee, each prescriber shall pay an initial prorated	486
program maintenance fee as determined by the State Board of	487
Pharmacy to cover the period between the effective date of this	488
act and the following June 30. Thereafter the fee shall be paid in	489
accordance with section 4729.88 of the Revised Code. The Board	490
shall issue official prescription forms in quantities that the	491
Board determines appropriate to prescribers who pay the fee	492
required by this section.	493