75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
SA to A-Eng. SB 355
LC 1740/SB 355-A15
SENATE AMENDMENTS TO
A-ENGROSSED SENATE BILL 355
By JOINT COMMITTEE ON WAYS AND MEANS
June 25
On page 1 of the printed A-engrossed bill, line 2, after '
money;' insert 'limiting expenditures;'.
Delete lines 4 through 16.
Delete lines 18 through 22 and delete pages 2 through 7 and
insert:
' { + SECTION 1. + } { + As used in sections 2 to 11 of this
2009 Act:
' (1) 'Dispense' and 'dispensing' have the meanings given those
terms in ORS 689.005.
' (2) 'Drug outlet' has the meaning given that term in ORS
689.005.
' (3) 'Health professional regulatory board' has the meaning
given that term in ORS 676.160.
' (4) 'Practitioner' has the meaning given that term in ORS
689.005.
' (5) 'Prescription' has the meaning given that term in ORS
475.005.
' (6) 'Prescription drug' has the meaning given that term in
ORS 689.005. + }
' { + SECTION 2. + } { + (1)(a) The Department of Human
Services, in consultation with the Prescription Monitoring
Program Advisory Commission, shall establish and maintain a
prescription monitoring program for monitoring and reporting
prescription drugs dispensed by pharmacies in Oregon that are
classified in schedules II through IV under the federal
Controlled Substances Act, 21 U.S.C. 811 and 812, as modified
under ORS 475.035.
' (b)(A) To fulfill the requirements of this subsection, the
department shall establish, maintain and operate an electronic
system to monitor and report drugs described in paragraph (a) of
this subsection that are dispensed by prescription.
' (B) The system must operate and be accessible by
practitioners and pharmacies 24 hours a day, seven days a week.
' (C) The department may contract with a state agency or
private entity to ensure the effective operation of the
electronic system.
' (2) In consultation with the commission, the department shall
adopt rules for the operation of the electronic prescription
monitoring program established under subsection (1) of this
section, including but not limited to standards for:
' (a) Reporting data;
' (b) Providing maintenance, security and disclosure of data;
' (c) Ensuring accuracy and completeness of data;
' (d) Complying with the federal Health Insurance Portability
and Accountability Act of 1996 (P.L. 104-191) and regulations
adopted under it, including 45 C.F.R. parts 160 and 164, federal
alcohol and drug treatment confidentiality laws and regulations
adopted under those laws, including 42 C.F.R. part 2, and state
health and mental health confidentiality laws, including ORS
179.505, 192.517 and 192.518 to 192.529;
' (e) Ensuring accurate identification of persons or entities
requesting information from the database;
' (f) Accepting printed or nonelectronic reports from
pharmacies that do not have the capability to provide electronic
reports; and
' (g) Notifying a patient, before or when a drug classified in
schedules II through IV is dispensed to the patient, about the
prescription monitoring program and the entry of the prescription
in the system.
' (3) The department shall submit an annual report to the
commission regarding the prescription monitoring program
established under this section. + }
' { + SECTION 3. + } { + (1) Not later than one week after
dispensing a prescription drug subject to the prescription
monitoring program established under section 2 of this 2009 Act,
a pharmacy shall electronically report to the Department of Human
Services the:
' (a) Name, address and date of birth of the patient;
' (b) Identification of the pharmacy dispensing the
prescription drug;
' (c) Identification of the practitioner who prescribed the
drug;
' (d) Identification of the prescription drug by a national
drug code number;
' (e) Date of origin of the prescription;
' (f) Date the drug was dispensed; and
' (g) Quantity of drug dispensed.
' (2) Notwithstanding subsection (1) of this section, the
department may not:
' (a) Require the reporting of prescription drugs administered
directly to a patient or dispensed pursuant to ORS 127.800 to
127.897; or
' (b) Collect or use Social Security numbers in the
prescription monitoring program.
' (3) Upon receipt of the data reported pursuant to subsection
(1) of this section, the department shall record the data in the
electronic system operated pursuant to the prescription
monitoring program.
' (4)(a) The department may grant a pharmacy a waiver of the
electronic submission requirement of subsection (1) of this
section for good cause as determined by the department. The
waiver shall state the format, method and frequency of the
alternate nonelectronic submissions from the pharmacy and the
duration of the waiver.
' (b) As used in this subsection, 'good cause' includes
financial hardship.
' (5) This section does not apply to pharmacies in institutions
as defined in ORS 179.010. + }
' { + SECTION 4. + } { + (1)(a) Except as provided under
subsection (2) of this section, prescription monitoring
information submitted under section 3 of this 2009 Act to the
prescription monitoring program established in section 2 of this
2009 Act:
' (A) Is protected health information under ORS 192.518 to
192.529.
' (B) Is not subject to disclosure pursuant to ORS 192.410 to
192.505.
' (b) Except as provided under subsection (2)(a)(D) of this
section, prescription monitoring information submitted under
section 3 of this 2009 Act to the prescription monitoring program
may not be used to evaluate a practitioner's professional
practice.
' (2)(a) If a disclosure of prescription monitoring information
complies with the federal Health Insurance Portability and
Accountability Act of 1996 (P.L. 104-191) and regulations adopted
under it, including 45 C.F.R. parts 160 and 164, federal alcohol
and drug treatment confidentiality laws and regulations adopted
under those laws, including 42 C.F.R. part 2, and state health
and mental health confidentiality laws, including ORS 179.505,
192.517 and 192.518 to 192.529, the Department of Human Services
shall disclose the information:
' (A) To a practitioner or pharmacist who certifies that the
requested information is for the purpose of evaluating the need
for or providing medical or pharmaceutical treatment for a
patient to whom the practitioner or pharmacist anticipates
providing, is providing or has provided care.
' (B) To designated representatives of the department or any
vendor or contractor with whom the department has contracted to
establish or maintain the electronic system of the prescription
monitoring program.
' (C) Pursuant to a valid court order based on probable cause
and issued at the request of a federal, state or local law
enforcement agency engaged in an authorized drug-related
investigation involving a person to whom the requested
information pertains.
' (D) To a health professional regulatory board that certifies
in writing that the requested information is necessary for an
investigation related to licensure, renewal or disciplinary
action involving the applicant, licensee or registrant to whom
the requested information pertains.
' (E) To a prescription monitoring program of another state if
the confidentiality, security and privacy standards of the
requesting state are determined by the department to be
equivalent to those of the department.
' (b) The department may disclose information from the
prescription monitoring program that does not identify a patient,
practitioner or drug outlet:
' (A) For educational, research or public health purposes; and
' (B) To officials of the department who are conducting special
epidemiologic morbidity and mortality studies in accordance with
ORS 432.060 and rules adopted under ORS 431.110.
' (c) The department shall disclose information relating to a
patient maintained in the electronic system operated pursuant to
the prescription monitoring program established under section 2
of this 2009 Act to that patient at no cost to the patient within
10 business days after the department receives a request from the
patient for the information.
' (d)(A) A patient may request the department to correct any
information about the patient that is erroneous. The department
shall grant or deny a request to correct information within 10
business days after the department receives the request.
' (B) If the department denies a patient's request to correct
information under this paragraph, or fails to grant a patient's
request to correct information under this paragraph within 10
business days after the department receives the request, the
patient may appeal the denial or failure to grant the request.
Upon receipt of an appeal under this subparagraph, the department
shall conduct a contested case hearing as provided in ORS chapter
183. Notwithstanding ORS 183.450, in the contested case hearing,
the department has the burden of establishing that the
information included in the prescription monitoring program is
correct.
' (e) The information in the prescription monitoring program
may not be used for any commercial purpose.
' (f) In accordance with ORS 192.518 to 192.529 and federal
privacy regulations, any person authorized to prescribe or
dispense a prescription drug and who is entitled to access a
patient's prescription monitoring information may discuss or
release the information to other health care providers involved
with the patient's care, in order to provide safe and appropriate
care coordination.
' (3)(a) The department shall maintain records of the
information disclosed through the prescription monitoring program
including, but not limited to:
' (A) The identity of each person who requests or receives
information from the program and the organization, if any, the
person represents;
' (B) The information released to each person or organization;
and
' (C) The date and time the information was requested and the
date and time the information was provided.
' (b) Records maintained as required by this subsection may be
reviewed by the Prescription Monitoring Program Advisory
Commission.
' (4) Information in the prescription monitoring program that
identifies an individual patient must be removed no later than
three years from the date the information is entered into the
program.
' (5) The department shall notify the Attorney General and each
affected individual of an improper disclosure of information from
the prescription monitoring program.
' (6)(a) If the department or a person or entity required to
report or authorized to receive or release controlled substance
prescription information under this section violates section 3, 4
or 5 of this 2009 Act, a person injured by the violation may
bring a civil action against the department, person or entity and
may recover damages in the amount of $1,000 or actual damages,
whichever is greater.
' (b) Notwithstanding paragraph (a) of this subsection, the
department and a person or entity required to report or
authorized to receive or release controlled substance
prescription information under this section are immune from civil
liability for violations of section 3, 4 or 5 of this 2009 Act
unless the department, person or entity acts with malice,
criminal intent, gross negligence, recklessness or willful
intent.
' (7) Nothing in sections 2 to 11 of this 2009 Act requires a
practitioner or pharmacist who prescribes or dispenses a
prescription drug to obtain information about a patient from the
prescription monitoring program. A practitioner or pharmacist who
prescribes or dispenses a prescription drug may not be held
liable for damages in any civil action on the basis that the
practitioner or pharmacist did or did not request or obtain
information from the prescription monitoring program. + }
' { + SECTION 5. + } { + A pharmacist may not refuse to fill
a valid prescription solely because the pharmacist cannot receive
patient information from the prescription monitoring program
established under section 2 of this 2009 Act at the time the
patient requests that the prescription be filled. + }
' { + SECTION 6. + } { + (1) In addition to any other
penalty provided by law, the Attorney General may impose a civil
penalty not to exceed $10,000 for each violation of section 3, 4
or 5 of this 2009 Act. Each improper release of information from
the prescription monitoring program in violation of section 4 of
this 2009 Act is a separate violation.
' (2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
' (3) The Department of Justice may adopt rules as required to
carry out the provisions of this section.
' (4) Penalties recovered under this section shall be paid into
the State Treasury and credited to the General Fund. + }
' { + SECTION 7. + } { + The Department of Human Services
shall report a practitioner or pharmacist authorized to obtain
controlled substance prescription information from the
prescription monitoring system established under section 2 of
this 2009 Act who discloses or uses information obtained from the
system in violation of section 4 of this 2009 Act to the health
professional regulatory board responsible for the practitioner or
pharmacist. + }
' { + SECTION 8. + } { + (1) As used in this section,
'board' means:
' (a) The Oregon Medical Board;
' (b) The Oregon Board of Dentistry;
' (c) The Board of Naturopathic Examiners;
' (d) The Oregon State Board of Nursing;
' (e) The Oregon Board of Optometry; and
' (f) The State Board of Pharmacy.
' (2)(a) In addition to other licensing fees imposed by a board
on licensees, a board shall adopt rules imposing a fee of $25 per
year on each person licensed by the board who is authorized to
prescribe or dispense controlled substances. A board shall
collect the fee at the same time the board collects other
licensing fees imposed on licensees.
' (b) A board shall retain 10 percent of the fees collected
under paragraph (a) of this subsection to cover the costs of
accounting and collection of the fees.
' (c) On the first day of each calendar quarter, a board shall
transmit 90 percent of the fees collected under paragraph (a) of
this subsection during the preceding calendar quarter to the
Electronic Prescription Monitoring Fund established in section 11
of this 2009 Act. + }
' { + SECTION 9. + } { + (1) The Prescription Monitoring
Program Advisory Commission is created for the purposes of:
' (a) Studying issues related to the prescription monitoring
program established under section 2 of this 2009 Act;
' (b) Reviewing the program's annual report and making
recommendations to the Department of Human Services regarding the
operation of the program; and
' (c) Developing criteria that should be used to evaluate
program data.
' (2) The commission shall consist of 11 members appointed by
the department as follows:
' (a) A person nominated by the Pain Management Commission;
' (b) A person who dispenses controlled substances nominated by
an association representing pharmacists;
' (c) A practicing dentist nominated by an association
representing dentists;
' (d) A practicing physician nominated by an association
representing physicians;
' (e) A practicing doctor of osteopathy nominated by an
association representing osteopathic physicians and surgeons;
' (f) A nurse authorized to prescribe controlled substances
nominated by an association representing nurses;
' (g) A practicing naturopathic physician nominated by an
association representing naturopathic physicians;
' (h) A practicing optometrist, nominated by an association
representing optometrists;
' (i) A person nominated by the department from a division of
the department responsible for administering addiction services;
and
' (j) Two members of the public nominated by the department,
one of whom must be an expert in information technology. + }
' { + SECTION 10. + } { + (1) The term of office of each
member of the Prescription Monitoring Program Advisory Commission
is four years, but a member serves at the pleasure of the
Department of Human Services. Before the expiration of the term
of a member, the department shall appoint a successor whose term
begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the
department shall make an appointment to become immediately
effective.
' (2) The commission shall elect one of its members to serve as
chairperson.
' (3) The commission shall meet at least once annually at a
time and place specified by the chairperson of the commission.
The commission may meet at other times and places specified by
the call of the chairperson or of a majority of the members of
the commission.
' (4) The commission may adopt rules necessary for the
operation of the commission.
' (5) A majority of the members of the commission constitutes a
quorum for the transaction of business.
' (6) Official action by the commission requires the approval
of a majority of the members of the commission.
' (7) The department shall provide staff support to the
commission.
' (8) Members of the commission are not entitled to
compensation, but may be reimbursed for actual and necessary
travel and other expenses incurred by them in the performance of
their official duties in the manner and amounts provided for in
ORS 292.495. Claims for expenses incurred in performing functions
of the commission shall be paid out of funds appropriated to the
department for that purpose.
' (9) All agencies of state government, as defined in ORS
174.111, are directed to assist the commission in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the commission consider necessary to perform their
duties. + }
' { + SECTION 11. + } { + (1) The Electronic Prescription
Monitoring Fund is established in the State Treasury, separate
and distinct from the General Fund. The Electronic Prescription
Monitoring Fund consists of moneys transmitted to the fund under
section 8 of this 2009 Act and any other moneys deposited in
accordance with law. Interest earned by the fund shall be
credited to the fund. Moneys in the fund are continuously
appropriated to the Department of Human Services for the purpose
of carrying out the provisions of sections 2 to 11 of this 2009
Act.
' (2) The Department of Human Services may accept grants,
donations, gifts or moneys from any source for deposit into the
fund established by this section. + }
' { + SECTION 12. + } { + Notwithstanding the term of office
specified by section 10 of this 2009 Act, the members first
appointed to the Prescription Monitoring Program Advisory
Commission shall determine by lot at the first meeting of the
commission the initial terms of office for commission members as
follows:
' (1) Three shall serve for a term ending July 1, 2010.
' (2) Four shall serve for a term ending on July 1, 2011.
' (3) Four shall serve for a term ending on July 1, 2012. + }
' { + SECTION 13. + } { + (1) Sections 3 to 5 of this 2009
Act become operative on July 1, 2010.
' (2) The Department of Human Services may take any action
before the operative date in subsection (1) of this section that
is necessary to enable the department to exercise, on or after
the operative date in subsection (1) of this section, all of the
duties, functions and powers conferred on the department by
sections 3 to 5 of this 2009 Act. + }
' { + SECTION 14. + } { + (1) If the Legislative Assembly is
meeting in special session in February 2010, the Department of
Human Services shall report to the Joint Committee on Ways and
Means on the implementation of the prescription monitoring
program under sections 2 to 11 of this 2009 Act. The report shall
include, but need not be limited to, the status of the electronic
system required by section 2 of this 2009 Act and the content of
rules adopted under section 2 of this 2009 Act.
' (2) If the Legislative Assembly is not meeting in special
session in February 2010, the department shall submit the report
described in subsection (1) of this section to the Speaker of the
House of Representatives and the President of the Senate by
February 15, 2010. + }
' { + SECTION 15. + } { + Notwithstanding any other law
limiting expenditures, the limitation on expenditures established
by section 2 (3), chapter ___, Oregon Laws 2009 (Enrolled Senate
Bill 5529), for the biennium beginning July 1, 2009, as the
maximum limit for payment of expenses for health services from
fees, moneys or other revenues, including Miscellaneous Receipts,
but excluding lottery funds and federal funds, collected or
received by the Department of Human Services, is increased by
$250,000 for the purpose of carrying out the provisions of
sections 2 to 11 of this 2009 Act. + }
' { + SECTION 16. + } { + Notwithstanding any other law
limiting expenditures, the limitation on expenditures established
by section 4 (3), chapter ___, Oregon Laws 2009 (Enrolled Senate
Bill 5529), for the biennium beginning July 1, 2009, as the
maximum limit for payment of expenses from certain federal funds
collected or received by the Department of Human Services, is
increased by $10,000 for the purpose of carrying out the
provisions of sections 2 to 11 of this 2009 Act. + }
' { + SECTION 17. + } { + This 2009 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2009 Act
takes effect on its passage. + } ' .
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