HOUSE DOCKET, NO. 3241        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1935

The Commonwealth of Massachusetts

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PRESENTED BY:

Carolyn C. Dykema

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to electronic prescribing of opiates and other controlled substances.

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PETITION OF:

HOUSE DOCKET, NO. 3241        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1935

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act relative to electronic prescribing of opiates and other controlled substances.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 29 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by adding the following section:-

Section 2NNNN. (a) There shall be established and set upon the books of the commonwealth a separate fund to be known as the ePrescription Trust Fund, to be expended without further appropriation by the department of public health. Unless a greater amount is authorized by law, the fund shall consist of revenues collected by the commonwealth including: (i) any revenue from appropriations or other monies authorized by the general court and specifically designated to be credited to the fund; (ii) any funds from public and private sources, including gifts, grants and donations; (iii) any interest earned on such revenues; and (iv) any funds provided from other sources. The commissioner of public health or a designee shall administer the fund and shall make expenditures from the fund for the administrative costs of operations and programs related to the Universal ePrescription Achievement Program, as outlined in section 232 of chapter 111, and for grants and awards made thereunder. The department may incur expenses and the comptroller may certify for payment, amounts in anticipation of expected receipts; provided, however, that no expenditure shall be made from the fund which shall cause the fund to be in deficit at the close of a fiscal year. Moneys deposited in the fund that are unexpended at the end of a fiscal year shall not revert to the General Fund.

The commissioner shall report annually not later than March 1 to the house and senate committees on ways and means and the joint committee on health care financing on the fund. The report shall include, but not be limited to, revenue received by the fund, revenue and expenditure projections for the forthcoming fiscal year and details of all expenditures from the fund, including an analysis of whether the fund expenditures assisted the department in meeting its regulatory mandates and in making grants and awards to eligible recipients.

(b) There shall be an ePrescribing Implementation and Trust Fund Advisory Board constituted to make recommendations to the commissioner of public health concerning the implementation of electronic prescribing for controlled substances across the Commonwealth, as well as the administration and allocation of the ePrescription Trust Fund, including, but not limited to, the establishment of evaluation criteria and recommendations for maximizing the interoperability of ePrescribing and the Prescription Monitoring Program. The board shall consist of the following members: the commissioner of public health, or a designee, who shall serve as chair; the Chief Information Officer of the commonwealth, or a designee; and 17 members or their designees from the following organizations who shall be appointed by the commissioner: Massachusetts Medical Society, Massachusetts Dental Society, Massachusetts Podiatric Medical Society, Massachusetts Society of Optometrists, Massachusetts Association of Physician Assistants, Massachusetts Council of Nurse Practitioners, Massachusetts Association of Nurse Anesthetists, Massachusetts Association of Advanced Practice Psychiatric Nurses, Massachusetts Affiliate of the America College of Nurse-Midwives, Massachusetts Hospital Association, Massachusetts Council of Community Hospitals, Massachusetts Senior Care Association, Massachusetts Pharmacists Association, Massachusetts Chain Pharmacy Council, Massachusetts Independent Pharmacists Association, the Massachusetts College of Pharmacy and Health Sciences, and a member of the public with experience in health care service delivery, administration or consumer advocacy. At least one-half of the total appointed members of the Advisory Board shall constitute a quorum for the transaction of business.

SECTION 2. Section 1 of chapter 94C of the General Laws, as so appearing, is hereby amended by striking the definition for “written prescription” in its entirety and replacing it with the following definition:-

“Written prescription”, a lawful order from a practitioner for a drug or device for a specific patient that is transmitted electronically, consistent with federal requirements for electronic prescriptions for controlled substances, with the electronic signature and electronic instructions of the prescriber, and transmitted directly to a pharmacy designated by the patient without alteration of the prescription information, except that third-party intermediaries may act as conduits to route the prescription from the prescriber to the pharmacist; provided, however, that “written prescription” shall not include an order for medication which is dispensed for immediate administration to the ultimate user by a practitioner, registered nurse or licensed practical nurse. A prescription generated on an electronic system that is printed out or transmitted via facsimile is not considered an electronic prescription.

SECTION 3. Section 8 of chapter 94C, as so appearing, is hereby amended, in subsection (f), by striking, in line 57, the words “oral or”.

SECTION 4. Section 17 of chapter 94C, as so appearing, is hereby amended, in subsection (c), by striking in line 9, the words “or oral”.

SECTION 6. Section 18 of chapter 94C, as so appearing, is hereby amended in subsection (c), by striking, in lines 28-29, the words “deliver or mail” and inserting in place thereof the words “transmit electronically”

SECTION 7. Section 20 of chapter 94C, as so appearing, is hereby amended in subsection (c) by striking the second and third sentences and inserting in place thereof the following:-

The written prescription shall be transmitted electronically to the pharmacy. Upon receipt, the dispensing pharmacy shall attach said written prescription to the oral prescription, which the pharmacy has reduced to writing.

SECTION 8. Section 23 of chapter 94C, as so appearing, is hereby amended by striking subsections (g) and (h) in their entirety and inserting in place thereof the following:-

(g) Unless otherwise prohibited by law, a written prescription for a controlled substance or a medical device with a controlled substance component, provided that the medical device is regulated by the department, shall be: (1) transmitted electronically; and (2) signed by the prescriber using authentication and auditing systems compliant with DEA regulations and (3) prescribed and dispensed using software applications compliant with DEA regulations. The department of public health shall promulgate regulations setting forth standards for electronic prescriptions.

(h) No practitioner shall issue any written prescription for a controlled substance or a medical device with a controlled substance component, unless it is transmitted electronically, except for prescriptions that are:

(1) issued by veterinarians;

(2) issued or dispensed in circumstances where electronic prescribing is not available due to temporary technological or electrical failure, as set forth in regulation;

(3) issued by practitioners who have received a waiver or a renewal thereof for a specified period determined by the department, not to exceed two years, from the requirement to use electronic prescribing, due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner; provided that the department shall establish in regulation appropriate due process for approvals and denials, including due process on appeal;

(4) issued by a practitioner under circumstances outlined in department regulations where, notwithstanding the practitioner's present ability to make an electronic prescription as required by this subdivision, such practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient's medical condition, provided that if such prescription is for a Schedule II through V controlled substance, the quantity does not exceed a three day supply if it was used in accordance with the directions for use.

(i) In the case of a written prescription for schedule II through V controlled substances, issued by a practitioner under paragraphs (2), (4) and (5) of subdivision (h) of this section, the practitioner shall be required to note the manner of the issuance of such prescription in the patient record as soon as practicable, as set forth in regulation.

(j) Clinic pharmacies operated by a health maintenance organization licensed under chapter 176G and licensed pursuant to section 51 of chapter 111 may refill prescriptions which have been previously dispensed by another health maintenance organization clinic pharmacy, provided that prior to dispensing a refill, the pharmacy refilling the prescription verifies the appropriateness of the refill through a centralized database.

SECTION 9. Section 24A of chapter 94C of the General Laws, as appearing in the 2012 Official Edition, is hereby amended, in lines 27 and 28, by striking the words “7 days” and inserting in place thereof the following words:- “24 hours at the end of each business day.”

SECTION 10. Chapter 111 is hereby further amended by adding the following section:-

Section 232. (b) Pursuant to regulations to be promulgated by the department, there shall be established a grant program to be known as the Universal ePrescription Achievement Program for the purpose of financing the implementation of electronic prescribing in small, rural or underserved health care practices and pharmacies. Eligible grant applicants shall include health care practices and pharmacies (1) consisting of fewer than two prescribing practitioners; (2) separated from the nearest health care practice by more than 15 miles; or (3) serving rural populations. The department, in consultation with the ePrescribing Trust Fund Advisory Board, shall promulgate regulations establishing specific eligibility criteria, application procedures and award amount determination factors. Program. Funds for such grants shall come from the ePrescribing Trust Fund established under section 2NNNN of chapter 29.

SECTION 11. Sections 2 through 8 of this act shall take effect 2 years after the enactment date.

SECTION 12. Sections 1 and 9 of this act shall take effect within 1 year of the enactment date.

SECTION 13. Section 10 of this act shall take effect 2 years after the enactment date.