Report Title:

Controlled Substances

Description:

Establishes an administrative fine for violations of the Uniform Controlled Substances Act and allows the Narcotics Enforcement Division of the Department of Public Safety to bring actions to prevent these violations. Allows the Department of Public Safety to suspend or revoke a registration to manufacture, distribute, or dispense a controlled substance if the registrant within the last five years has been found guilty of a misdemeanor relating to any controlled substance. Requires a bona fide practitioner-patient relationship for a practitioner to prescribe a controlled substance. Prohibits the dispensing of a controlled substance to an individual unless the individual presents government-issued identification and the practitioner or pharmacist logs the type of identification presented. Prohibits a practitioner from administering, prescribing, or dispensing a controlled substance without a medical reason determined after prior examination of the patient. Authorizes the use of the controlled substance registration revolving fund to offset the cost of investigating violations relating to the registration and control of controlled substances. Appropriates funds for investigators and related equipment for the Narcotics Enforcement Division of the Department of Public Safety.

HOUSE OF REPRESENTATIVES

H.B. NO.

2149

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to controlled substances.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 329, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§329-A Administrative penalty; enforcement. (a) Any person who violates this chapter or any rule adopted pursuant to this chapter shall be subject to a penalty of not more than $10,000 for each separate offense. All penalties imposed under this section shall be in addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter, and shall be deposited into the controlled substance registration revolving fund established under section 329-59.

(b) In enforcing this section, if the administrator determines that any person has violated this chapter or any rule adopted pursuant to this chapter, the administrator:

(1) Shall cause written notice to be served upon the alleged violator. The notice shall specify the alleged violation;

(2) Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter or any rule adopted pursuant to this chapter;

(3) Shall impose penalties as provided in subsection (a) by sending a notice in writing, either by certified mail or by personal service, to the alleged violator describing the violation; and

(4) May require that the alleged violator or violators appear before the administrator for a hearing at a time and place specified in the notice and answer the charges complained of.

(c) Any order issued under this section shall become final twenty days after service unless within the twenty days any person named therein requests in writing a hearing before the administrator. Any penalty imposed under this section shall become due and payable twenty days after the notice of penalty is served; provided that whenever a hearing is requested on any penalty imposed under this section, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the administrator shall require that the alleged violator or violators appear before the administrator for a hearing at a time and place specified in the notice and answer the charges complained of.

(d) Any hearing under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the administrator finds that any violation has occurred, the administrator shall affirm or modify any penalty imposed or shall affirm or modify the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation, or for the taking of such other corrective action as may be appropriate. If after a hearing on an order or penalty contained in a notice, the administrator finds that no violation has occurred, the administrator shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation.

(e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the administrator may institute a civil action in the name of the State to collect the penalty, which shall be a government realization.

In any judicial proceeding to recover the penalty imposed, the administrator need only show that:

(1) Notice was given;

(2) A hearing was held or the time granted for requesting a hearing has expired without such a request;

(3) The penalty was imposed; and

(4) The penalty remains unpaid.

(f) In connection with any hearing held pursuant to this section, the administrator shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties.

§329-B Injunctive relief. The administrator may maintain an action in any court of competent jurisdiction for injunctive relief to prevent any violation of this chapter or any rule adopted thereunder."

SECTION 2. Section 329-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Bona fide practitioner-patient relationship" means a relationship between a practitioner and a patient that includes all four of the following elements:

(1) The patient has a medical complaint;

(2) A medical history of the patient has been taken;

(3) The practitioner has performed a physician examination or, in the case of a psychiatrist, a psychological examination prior to administering, prescribing, or dispensing a controlled substance; and

(4) Some logical connection exists between the patient's medical complaint, medical history, and physical or psychological examination, and the controlled substance administered, prescribed, or dispensed."

SECTION 3. Section 329-34, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A registration under section 329-33 to manufacture, distribute, or dispense a controlled substance may be suspended or revoked by the department of public safety upon a finding that the registrant:

(1) Has furnished false or fraudulent material information in any application filed under this chapter;

(2) Has been convicted of a felony or has been granted a motion for the deferral of acceptance of a guilty plea or a nolo contendere plea to a felony, pursuant to chapter 853 and under any state or federal law relating to any controlled substance;

(3) Has been convicted within the last five years of a misdemeanor under any state or federal law relating to any controlled substance or regulated chemical violation, or has been granted a motion for the deferral of acceptance of a guilty plea, conditional discharge, or a nolo contendere plea for a misdemeanor under any state or federal law relating to any controlled substance or regulated chemical violation;

[(3)] (4) Has had the registrant's federal registration suspended or revoked to manufacture, distribute, prescribe, or dispense controlled substances; or

[(4)] (5) Has had the registrant's state license to practice the registrant's profession suspended or revoked by the applicable governing state board."

SECTION 4. Section 329-38, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) The effectiveness of a prescription for the purposes of this section shall be determined as follows:

(1) A prescription for a controlled substance shall be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of the practitioner's professional practice[.] where a bona fide practitioner-patient relationship exists. The responsibility for the proper prescribing and dispensing of controlled substances shall be upon the prescribing practitioner, but a corresponding responsibility shall rest with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or for legitimate and authorized research shall not be deemed a prescription within the meaning and intent of this section, and the person who knowingly fills such a purported prescription, as well as the person who issues the prescription, shall be subject to the penalties provided for violations of this chapter;

(2) A prescription may not be issued to allow an individual practitioner to obtain controlled substances for supplying the individual practitioner for the purpose of general dispensing to patients;

(3) A prescription may not be issued for the dispensing of narcotic drugs listed in any schedule for the purpose of "detoxification treatment" or "maintenance treatment". Nothing in this section shall prohibit a physician or authorized hospital staff from administering or dispensing narcotic drugs in a hospital to maintain or detoxify a person as an incidental adjunct to medical or surgical treatment of conditions other than addiction; and

(4) An individual practitioner may not prescribe or dispense a substance included in schedule II, III, IV, or V for that individual practitioner's personal use, except in a medical emergency."

SECTION 5. Section 329-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) It is unlawful for any person:

(1) Who is subject to part III to distribute, administer, prescribe, or dispense a controlled substance in violation of section 329-38; however, a licensed manufacturer or wholesaler may sell or dispense a controlled substance to a master of a transpacific ship or a person in charge of a transpacific aircraft upon which no physician is regularly employed, for the actual medical needs of persons on board such ship or aircraft when not in port; provided schedule I or II controlled substances shall be sold to the master of such ship or person in charge of such aircraft only in accordance with the provisions set forth in 21 Code of Federal Regulations, sections 1301, 1305, and 1307, adopted pursuant to Title 21, United States Code, section 821;

(2) Who is a registrant to manufacture a controlled substance not authorized by the registrant’s registration or to distribute or dispense a controlled substance not authorized by the registrant’s registration to another registrant or another authorized person;

(3) To refuse or fail to make available, keep, or furnish any record, notification, order form, prescription, statement, invoice, or information in patient charts relating to the administration, dispensing, or prescribing of controlled substances;

(4) To refuse any lawful entry into any premises for any inspection authorized by this chapter;

(5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place for the purpose of using these substances or which is used for keeping or selling them in violation of this chapter or chapter 712, part IV; [or]

    1. Who is a practitioner or pharmacist to dispense a controlled substance to any individual not known to the practitioner or pharmacist, without first obtaining proper identification and documenting, by signature on a log book kept by the practitioner or pharmacist, the identity of the individual obtaining the controlled substance[.] and the type of identification presented. If the individual does not have any form of proper identification, the pharmacist shall verify the validity of the prescription and identity of the patient with the prescriber, or their authorized agent, before dispensing the controlled substance. For the purpose of this section, "proper identification" means government-issued identification containing the photograph, printed name, and signature of the individual obtaining the controlled substance[.]; or

(7) Who is a practitioner subject to part III to administer, prescribe, or dispense a controlled substance without a medical reason determined after a good faith prior examination of the patient."

SECTION 6. Section 329-59, Hawaii Revised Statutes, is amended to read as follows:

"§329-59 Controlled substance registration revolving fund; established. (a) There is established within the state treasury the controlled substance registration revolving fund. The fund shall be expended at the discretion of the director of public safety for the purpose of:

(1) Offsetting the cost of the electronic prescription accountability system, the registration and control of the manufacture, distribution, prescription, and dispensation of controlled substances and regulated chemicals listed under section 329-61[,] within the [State] state and investigations of violations thereof, and the processing and issuance of a patient registry identification certificate designated under part IX; and

(2) Funding positions authorized by the legislature by law.

(b) The fund shall consist of all moneys derived from fees and fines collected pursuant to sections 329-31, 329-67, [and] 329-72, 329-123(b), and 329-A, and legislative appropriations. All fees collected pursuant to sections 329-31, 329-67, [and] 329-72, 329-123(b), and 329-A shall be deposited in the controlled substance registration revolving fund."

SECTION 7. There is appropriated out of the controlled substance registration revolving fund established under section 329-59 the sum of $266,201 or so much thereof as may be necessary for fiscal year 2006-2007 for two permanent investigators and their necessary investigative equipment for the narcotics enforcement division of the department of public safety.

The sum appropriated shall be expended by the department of public safety for the purposes of this Act.

SECTION 8. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval; provided that section 7 of this Act shall take effect on July 1, 2006.

INTRODUCED BY:

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