Act Changes Controlled Substances Prescribing Laws

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 Act Changes Controlled Substances
         Prescribing Laws
                                                                                                                The NEWLY enacted version of the statute
                                                                                                                states, in relevant part:

                                                                                                                  [T]he disciplinary subcommittee may fine,
                                                                                                                  reprimand, or place a pharmacist licensee
                                                                                                                  on probation, or deny, limit, suspend, or
                                                                                                                  revoke the license of a pharmacist or order
                                                                                                                  restitution or community service for:

                                                                                                                     dispensing a prescription for a controlled
                                                                                                                     substance that is written and signed or
                                                                                                                     transmitted by facsimile, electronic
                                                                                                                     transmission, or other means of commu-
                                                                                                                     nication by a physician prescriber in a
                                                                                                                     state other than Michigan, unless the
                                                                                                                     prescription is issued by a physician
                                                                                                                     prescriber who is authorized under the
                                                                                                                     laws of that state to practice medicine
                                                                                                                     or osteopathic medicine and surgery and
                                                                                                                     to prescribe controlled substances.3

                                                                                                                   The difference in the two versions is elimi-
                                                                                                                nation of the land border and Illinois and Min-
                                                                                                                nesota language that limited Michigan
 Gov. Jennifer Granholm signs HB 4161. Witnessing the signing are, from left, MPA Director of Governmental      licensed pharmacists to dispensing controlled
 Affairs Greg Baran, Rep. Richard LeBlanc (D-Westland), MPA Professional Practice Assistant Nick Norcross,      substances prescriptions only from licensed
                           MPA CEO Larry Wagenknecht and Lt. Gov. John Cherry.                                  MDs and DOs in those states. This is in addi-
                                                                                                                tion to, of course, allowing Michigan licensed
            By JESSE V. VIVIAN                            [T]he disciplinary subcommittee may fine,             pharmacists to dispense controlled substances
                                                          reprimand, or place a pharmacist licensee             issued by prescribers licensed by the state of
                    R.Ph., JD                             on probation, or deny, limit, suspend, or             Michigan to prescribe controlled substances.
                                                          revoke the license of a pharmacist or order              The new legislation also made a change to
   For Michigan pharmacists, a new era of                 restitution or community service for:                 one of the controlled substances statutes that
opportunities and, maybe, some challenges                    dispensing a prescription for a                    regulates the dispensing of these medica-
has just been opened. On Nov. 19, 2009, En-                  controlled substance that is written               tions. The OLD version of that statute stated:
rolled House Bill No. 4161 was signed into                   and signed or transmitted by facsimile,
law as 2009 PA 150. This Act will make im-                   electronic transmission, or other means              [A pharmacist] shall not dispense a pre-
portant changes to three Michigan Public                     of communication by a physician                      scription for a controlled substance written
Health Code (MPHC) statutes that deal with                   prescriber in a state other than                     and signed or transmitted by facsimile,
who is permitted to issue controlled sub-                    Michigan, unless the prescription is                 electronic transmission, or other means of
stances prescriptions, and, perhaps more im-                 issued by a physician prescriber who                 communication by a physician prescriber
portantly, which prescriptions for controlled                resides adjacent to the land border                  licensed to practice in a state other than
substances pharmacists will be able to fill                  between this state and an adjoining                  Michigan, unless the prescription is issued
and dispense.                                                state or resides in Illinois or Minnesota            by a physician prescriber who resides adja-
   The first amendment will change the                       and who is authorized under the laws                 cent to the land border between this state
statute entitled Grounds for fine, reprimand,                of that state to practice medicine or                and an adjoining state or resides in Illinois
probation, denying, limiting, suspending or                  osteopathic medicine and surgery and                 or Minnesota and who is authorized under
revoking a license.1 Although the distinction                to prescribe controlled substances and               the laws of that state to practice medicine
might be subtle at first glance, this statute,               whose practice may extend into this                  or osteopathic medicine and surgery and
found in Part 177 of the MPHC dealing with                   state, but who does not maintain an                  to prescribe controlled substances and
“Pharmacy Practice and Drug Control,”                        office or designate a place to meet                  whose practice may extend into this state,
applies only to the discipline of pharmacists,               patients or receive calls in this state.2            but who does not maintain an office or
not pharmacies. The OLD statute stated, in                                                                        designate a place to meet patients or
relevant part:                                                                                                    receive calls in this state.4

                                                   MichiganPharmacists.org     14      2010 Jan./Feb. | Vol. 48, Issue 1
                                                                                                                               Advocacy

   In a manner similar to the above discussed             health professional acting under the dele-           now fill prescriptions for controlled sub-
statutes, the NEW version states:                         gation and using, recording, or otherwise            stances prescribed by physicians in Illinois,
                                                          indicating the name of the delegating li-            Minnesota, and the border areas of adjoin-
  [A pharmacist] shall not dispense a pre-                censed doctor of medicine or licensed                ing states. [Emphasis added].
  scription for a controlled substance written            doctor of osteopathic medicine and sur-
  and signed or transmitted by facsimile,                 gery. License does not include a health              Currently, [under the old law before it was
  electronic transmission, or other means of              profession specialty field license.                  amended] with some exceptions, pharma-
  communication by a physician prescriber                                                                      cists are prohibited from filling prescrip-
  licensed to practice in a state other than             Another portion of that statute was also              tions for controlled substances (e.g.,
  Michigan, unless the prescription is issued           modified to state:                                     narcotic pain relievers such as Vicodin)
  by a physician prescriber who is authorized                                                                  written by doctors who are not licensed by
  under the laws of that state to practice medi-          Subject to § 17751(2), prescription in-              the State of Michigan. The Public Health
  cine or osteopathic medicine and surgery                cludes, but is not limited to, an order for a        Code was amended in 1997 to allow a
  and to prescribe controlled substances.5                drug, not including a controlled substance           pharmacist to dispense a prescription for a
                                                          except under circumstances described in              controlled substance prescribed by a li-
   Again, this portion of the statute eliminates          § 17763(e), written and signed or trans-             censed physician in the border areas of
the land border and Illinois and Minnesota                mitted by facsimile, electronic transmis-            states adjacent to Michigan (Ohio, Indi-
limitations of who can issue a controlled                 sion, or other means of communication by             ana, Illinois, and Wisconsin), and again in
substance to be filled and dispensed by a                 a physician prescriber licensed to practice          2004 to include prescriptions for con-
Michigan licensed pharmacist.                             in a state other than Michigan.8                     trolled substances from licensed physi-
   In order to make these changes consistent                                                                   cians throughout Illinois and Minnesota.
with other portions of the MPHC regulating                 The references in the above quoted statute
prescribing, the definition of this term was also       to §§17751(2) and 17763(e) requires                    House Bill 4161 would delete the provi-
modified. Now a “prescriber” is defined as              further explanation and some interpretation            sions in the Public Health Code (MCL
                                                        by pharmacists to make the old and new                 333.7405 et al.) that restrict the filling by
  “a licensed dentist, a licensed doctor of medi-       statutes make sense. The first referenced              Michigan pharmacists of out-of-state con-
  cine, a licensed doctor of osteopathic medi-          section states:                                        trolled substances prescriptions to those
  cine and surgery, a licensed doctor of                                                                       written by physicians in the border areas
  podiatric medicine and surgery, a licensed              A pharmacist may dispense a prescription             of adjoining states, and in all of Illinois,
  optometrist certified under part 174 to admin-          written and signed or transmitted by fac-            and Minnesota. Instead, a pharmacist
  ister and prescribe therapeutic pharmaceuti-            simile, electronic transmission, or other            would be allowed to fill a controlled sub-
  cal agents, a licensed veterinarian, or another         means of communication by a physician                stance prescription issued by any physician
  licensed health professional acting under the           prescriber in a state other than Michigan,           prescriber licensed under the laws of his or
  delegation and using, recording, or otherwise           but not including a prescription for a con-          her home state to practice medicine or os-
  indicating the name of the delegating li-               trolled substance except under circum-               teopathic medicine and surgery and to
  censed doctor of medicine or licensed doctor            stances described in section 17763(e),               prescribe controlled substances. The pro-
  of osteopathic medicine and surgery.6”                  only if the pharmacist in the exercise of his        visions would apply to prescriptions writ-
                                                          or her professional judgment determines              ten and signed, or transmitted by facsimile,
   However, the concept of a “licensed pre-               all of the following:                                electronic transmission, or other means of
scriber” is greatly expanded in another                      (a) That the prescription was issued              communication. [Emphasis added].11
statute which reads, in relevant part:                       pursuant to an existing physician-patient
                                                             relationship.                                      The House Legislative Analysis Section
  “License” means an authorization issued                    (b) That the prescription is authentic.         also provided some “Background Informa-
  under [Article 15 of the MPHC dealing                      (c) That the prescribed drug is appropriate     tion” that accompanied its analysis. This in-
  with Occupations] to practice where prac-                  and necessary for the treatment of an           formation should help explain why the
  tice would otherwise be unlawful. License                  acute, chronic, or recurrent condition.9        legislature determined the above discussed
  includes an authorization to use a desig-                                                                  changes were necessary:
  nated title which use would otherwise be                  This part of the statute did not change.
  prohibited under this article and may be              However, as explained above, §17763(e) did             When the restriction on filling prescrip-
  used to refer to a health profession sub-             change to eliminate the land border and                tions for controlled substances (e.g., nar-
  field license, limited license, or a tempo-           Illinois and Minnesota exceptions.10                   cotic pain relievers) from out-of-state
  rary license. For purposes of the definition              It might be useful to examine some legisla-        physicians was placed into law by Public
  of “prescriber” contained in section                  tive history behind these changes. Below is a          Act 153 of 1997, it was to prevent any po-
  17708(2) only7, license includes an author-           summary of the changes included in House               tential diversion problems such as passing
  ization issued under the laws of another              Bill No. 4161 as reported by the House Com-            off prescriptions from fictional doctors.
  state, or the country of Canada to practice           mittee’s House Legislative Analysis Section:           However, times have changed. Technol-
  in that state or in the country of Canada,                                                                   ogy has brought more safeguards and tools
  where practice would otherwise be unlaw-                The bill would allow pharmacists to fill a           for pharmacists to use to verify the validity
  ful, and is limited to a licensed doctor of             prescription for a controlled substance              of a prescription. [Emphasis added]. Plus,
  medicine, a licensed doctor of osteopathic              prescribed by any out-of-state physician             most states allow pharmacists to fill pre-
  medicine and surgery, or another licensed               under the same conditions that they can              scriptions for controlled substances written


                                                    MichiganPharmacists.org   15    2010 Jan./Feb. | Vol. 48, Issue 1
          Advocacy

  by pharmacists from any state. Michigan residents who receive care in other
  states, whether for an urgent medical need or for care at specialty centers (e.g.,                                          References
  the Cleveland Clinic or cancer centers), find it difficult to get prescriptions filled
  or refilled once home again. Often, they must see a Michigan physician and re-                1
                                                                                                  MCL §333.17763
  quest that physician to write a new prescription. In addition, given that tourism
                                                                                                2
                                                                                                  MCL §333.77763(e), as amended 2006, PA 672, effective Jan. 10,
                                                                                                  2007. At the time of publication of this article, the state Web site still
  is a major industry in Michigan – attracting tourists from all over the nation – it             has this out-of-date version posted online. See
  may make more sense to lift the prohibition so that visitors can refill their pre-              www.legislature.mi.gov/(S(0ghm3m452otoz445fn0mwrfg))/mileg.aspx
                                                                                                  ?page=getObject&objectName=mcl-333-17763
  scriptions within the state if needed. Since people tend to make other pur-                   3
                                                                                                  Enrolled House Bill No 4161, 2009 PA 150, amending MCL
  chases while waiting for prescriptions to be filled, in-state pharmacies could                  §333.17763(e), effective Nov. 19, 2009. At the time of publication,
  make more sales, and more sales tax revenue could be generated for the state.                   this version of the statute was posted at: www.legislature.mi.gov/docu-
                                                                                                  ments/2009-2010/billenrolled/House/htm/2009-HNB-4161.htm. It is
  Lastly, Michigan-based central fill and mail order pharmacies could expand                      also available as the enacted law at: www.legislature.mi.gov/docu-
  their businesses into other states if the law were changed.12                                   ments/2009-2010/publicact/htm/2009-PA-0150.htm
                                                                                                4
                                                                                                  MCL §333.7405(e); this is the OLD version that has now been re-
                                                                                                  placed. See Note 5, infra, and accompanying text.
   Interestingly, both the Department of Community Health and Michigan                          5
                                                                                                  MCL §333.7405(e), as amended 2006, PA 672, effective Jan. 10,
Pharmacists Association indicated support for the bill.13                                         2007. At the time of publication of this article, the state Web site still
                                                                                                  has this out of date version still posted online. See
   Therefore, putting all of this verbiage together to accurately state Michigan’s cur-           www.legislature.mi.gov/(S(0ghm3m452otoz445fn0mwrfg))/mileg.aspx
rent law, in addition to other properly licensed Michigan prescribers, a pharmacist               ?page=getObject&objectName=mcl-333-17763
may fill noncontrolled and controlled substances from MD and DO prescribers                     6
                                                                                                  MCL §333.17708(2). Just to be clear, there is another limitation about
                                                                                                  prescribing that is relevant to this part of the discussion: “A pharmacist or
licensed in Michigan or any other state within the guidelines stated above. A                     a prescriber shall dispense a prescription only if the prescription falls
Michigan licensed pharmacist may also fill and dispense any noncontrolled sub-                    within the scope of practice of the prescriber.” See MCL § 333.17751(3).
stance prescription-only (federal legend) prescription from a DO or MD licensed                   See also MCL §333.17751(4); “A pharmacist shall not knowingly
                                                                                                  dispense a prescription after the death of the prescriber or patient.”
in Canada, but not a controlled substance prescription. Note also that these                    7
                                                                                                  See text accompanying Note 6, supra.
statutes, expanding the prescribing authority for prescription-only (federal legend),           8
                                                                                                  MCL §333.17708(3)
                                                                                                9
                                                                                                  MCL §333.17751(2)
both controlled and noncontrolled drugs issued by other state licensed individu-                10
                                                                                                   See Note 3, supra, and the accompanying quoted language of the
als, extend only to MD and DO prescriber physicians and not other “prescribers”                    amended statute.
as that term is defined in Michigan.                                                            11
                                                                                                   www.legislature.mi.gov/documents/2009-
                                                                                                   2010/billanalysis/House/htm/2009-HLA-4161-3.htm
   Astute readers will probably notice that there is no discussion above about dele-            12
                                                                                                   See Note 11, supra.
gating prescribing to persons such and physician assistants or nurse practitioners.             13
                                                                                                   The Senate Floor Summary analyzing the Bill is also available at:
Examination of these issues will be left for later editions of my Legal Tips column.               www.legislature.mi.gov/(S(kgjtdu45aexzrtmeqskcho20))/mileg.aspx?p
                                                                                                   age=getObject&objectName=2009-HB-4161




                                                MichiganPharmacists.org    16     2010 Jan./Feb. | Vol. 48, Issue 1