BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 1589 A
Assembly Member Simitian B
As Amended July 16, 2001
Hearing Date: August 21, 2001 1
Business and Professions Code 5
GMO:cjt 8
9
SUBJECT
Healing Arts: Electronic Transmission of Prescriptions
DESCRIPTION
This bill would require the Medical Board to consult with
the Board of Pharmacy and to commission a study that
evaluates the electronic transmission of prescriptions by
physicians and other specified health care providers and
report the results of such study to the Legislature on or
before January 1, 2003. The report would include
recommendations for methods to encourage physicians and
other health care providers to issue prescriptions by
electronic transmission and for systems that would protect
patient identity, including the use of digital
certification of prescriptions. The bill would define
digital certification.
The bill contains findings based upon a 1999 report by the
Institute of Medicine relating to medication-related errors
in the health care system.
BACKGROUND
On February 22, 2000, the White House announced new
initiatives "to improve patient safety and assure health
care quality," adopting virtually every recommendation of
the Institute of Medicine (IOM) report released in
November, 1999. Among the initiatives are those that
relate to reductions in medication-related errors, such as
(more)
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1) regulations requiring over 6,000 hospitals participating
in Medicare to have in place error reduction programs that
include new systems to decrease medication-related errors;
(2) comprehensive plans for a nationwide system of error
reporting; and (3) increased use of computer technology to
decrease serious medication-related errors.
Based on the IOM report, SB 1875 (Speier, Chapter 816,
Statutes of 2000) made it a condition of licensure that
specified health care facilities implement a formal plan,
on or before January 1, 2005, to eliminate or substantially
reduce medication-related errors in the facility.
The IOM report also contains the following information
relating to prescriptions:
Nearly all three billion prescriptions issued each year
in the United States are handwritten by physicians;
Illegible prescriptions result in more that 150 million
inquiries each year by pharmacists for clarification from
the issuing physician;
Less than five percent of physicians use computer
technology to prescribe medications.
The Assembly Health Committee has been researching various
e-health issues, including e-prescriptions. According to
the author, Palo Alto Medical Foundation has begun testing
a new web-based system that allows patients to view their
own medical records, request appointments, and renew
prescriptions online. Also, New Jersey is considering new
rules to allow physicians to e-mail prescriptions to a
pharmacy, a move aimed at reducing errors caused by
illegible handwriting of prescriptions.
This bill focuses on prescriptions issued by physicians and
other specified health care providers.
CHANGES TO EXISTING LAW
Existing law requires the California State Medical Board to
regulate the practitioners of medicine and other healing
arts.
Existing law authorizes the California State Board of
Pharmacy to adopt rules and regulations relating to the
practice of pharmacy, and the dispensing of drugs or
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devices pursuant to a prescription of a person licensed to
prescribe such drugs or devices.
This bill would require the Medical Board to consult with
the Board of Pharmacy and to commission a study regarding
the electronic transmittal of prescriptions by physicians
and surgeons, dentists, optometrists, podiatrists,
veterinarians, certified nurse midwives, nurse
practitioners, physician assistants, or pharmacists acting
within the scope of their practice.
The bill would require the Board to report to the
Legislature on the results of the study on or before
January 1, 2003, and to include in the report
recommendations on how to encourage such use of electronic
transmittal of prescriptions and of systems to protect
patient identity, including use of digital certification of
prescriptions, as defined.
COMMENT
1. Need for the bill
This bill is one of a number of bills looking at
eliminating medication-related errors in the health care
system that were identified by the IOM report.
SB 1875 (Speier, Ch. 816, Statutes of 2000) took the
White House initiatives issued in February 2000 pursuant
to the IOM report and made it a condition of licensure
for health care facilities to adopt a formal plan to
prevent medication-related errors in the facilities.
Covered health care facilities have until January 1, 2005
to adopt those formal plans.
It is generally agreed by proponents and opponents of
this line of legislation that information regarding the
frequency and nature of medication-related errors is
essential in improving the quality of care provided by
the health care system in this country. While hospital
care has become safer over the years because of advances
in surgical techniques and practice, medical commentators
have argued that prevention of errors continue to be the
single source of improvement in mortality rate
statistics. [Troyen A. Brennan, M.D., J.D, M.P.H., The
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Institute of Medicine Report on Medical Errors - Could It
Do Harm?, the New England Journal of Medicine, Vol. 342,
No. 15, April 13, 2000.]
Since prescriptions can only be dispensed by a pharmacist
pursuant to a prescription issued by an authorized
professional (or the pharmacist, if within the scope of
his or her practice) it is logical that accuracy of the
communication regarding the prescribed medicine be the
target of any attempts to improve the health care system,
or at least to reduce medication-related errors that
create unintended problems for the patient.
The author states that "[A]s the industry explores
options to make health care delivery more efficient and
cost-effective, there is a need to develop standard
protocols regarding signature verification, security, and
interfacing with current requirements relative to
prescribing drugs or oversight of drug prescription will
become unsound."
2. Medical Board to commission a study
AB 1589 would require the California State Medical Board
to consult with the Board of Pharmacy and to commission a
study on the subject of issuing prescriptions by
electronic transmission, and to report to the Legislature
on the subject by January 1, 2003. The report must
contain recommendations on encouraging those authorized
to prescribe to use electronic transmission of the
prescriptions, and on systems that would allow electronic
transmission while protecting patient information.
It is entirely appropriate for the two boards to work
together on this subject, because while one is liable for
the appropriateness and accuracy of the prescription
issued, the other is liable for the accuracy of
dispensing the drugs or devices to the patient.
Communication between them must be clear and unequivocal,
so that a patient may not be victimized by taking the
wrong medication or wrong dosage of the right medication.
However, the switch from illegibly handwritten
prescriptions to electronically transmitted prescriptions
is fraught with questions relating to privacy of
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information relating to the patient, the physician's
responsibility releasing medical information (which
prescriptions would be) to a third party, and liability
as between the physician and the pharmacist for errors
and omissions.
This is the reason why a slower approach, such as this
one taken by AB 1589, is superior to one that simply
allows a physician to email a prescription to the
patient's choice of pharmacist. The report to be made to
the Legislature should provide some guideline to the
Legislature as to what protections should be enacted by
statute, and what should be left to regulation by the
healing arts boards and commissions.
3. Prescriptions to be covered
The study authorized by this bill would cover
prescriptions made by not only doctors, but also
dentists, optomerists, podiatrists, veterinarians,
certified nurse midwives, nurse practitioners, physician
assistants, or pharmacists acting within the scope of
their practice. These professionals are listed in
Section 4024 of the Business and Professions Code as
those authorized to prescribe drugs or devices that a
pharmacist may dispense. It is assumed that these
licensed professionals are licensed in the State of
California.
However, Business and Professions Code Section 4008 also
permits the Board of Pharmacy to adopt regulations
permitting the pharmacist to dispense drugs or devices
prescribed by a person licensed out of state where that
person, if licensed in California in the same licensure
classification would, under California law, be permitted
to prescribe drugs or devices, and where the pharmacist
has first interviewed the patient to determine the
authenticity of the prescription.
SHOULD THE STUDY ALSO COVER PRESCRIPTIONS MADE BY
OUT-OF-STATE LICENSED DOCTORS AND HEALTH CARE PROVIDERS,
AS SPECIFIED?
Especially with the mobility of the country's population,
and the supposed efficiency and convenience of
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e-prescriptions, this subject should probably be included
in the Medical Board's commissioned study.
4. Support from the Medical Board and the Board of
Pharmacy
According to the Board of Pharmacy, "[e]lectronic
prescribing has been proven to substantially reduce the
incidence of medication errors and has the potential to
bring substantial operating efficiencies to prescribing
and dispensing processes." The Board reports that
electronic prescribing has begun to take hold in the
hospital setting and experience in one hospital found a
50% reduction in medication errors and a two-hour
reduction in the time required to process the order and
administer the drug to the patient. However, the Board
states, technology for electronic prescribing in
outpatient settings has only become available recently,
and the study required by the bill will provide
recommendations on how to speed its adoption.
The Medical Board makes the same points, but adds that
since commercially available computerized systems are
very expensive and tailored for hospital systems, it is
important to examine the feasibility of having such
systems in individual physicians' offices and the risks
of having such systems widely used.
As well, the California Medical Association supports the
bill and mentions that its Project SAFECARE (Strategic
Alliance for Effective Care and Reduction of Errors) Task
Force is looking into criteria that physicians may
consider when taking advantage of this new technology.
5. Effect of the Uniform Electronic Transactions Act
The study should also consider the practical and legal
effect of the Uniform Electronic Transactions Act, Civil
Code Sections 1633.1 et seq. [SB 820 (Sher), Chapter 428,
Statutes of 1999] on prescriptions, since that Act
governs all electronic transactions, including business
and commercial transactions, except those specifically
excepted from the Act. Medical prescriptions are not
specifically excepted from the Act.
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The application of the Act, which details the procedure
for the transmission, receipt and operative effect of an
electronic transaction, will have to be examined in light
of the privacy issues complicating use of electronically
transmitted prescriptions, the confidentiality of medical
information as required by the Civil Code, and
professional and ethical responsibilities of physicians
and other licensees who are authorized to prescribe
medications.
6. Suggested amendment to Medical Board report and
recommendations
This bill would specify that the report submitted by the
Medical Board to the Legislature include recommendations
"for methods to encourage physicians [and other specified
health care providers] to issue prescriptions by
electronic transmission and for systems that would
protect patient identity?"
This language presupposes that the report would conclude
that prescriptions by electronic transmissions should be
encouraged and that only protection of the patient's
identity is necessarily considered in developing systems
that could be used to transmit those prescriptions.
In light of the concerns raised in the above comments,
the language of the bill should probably be revised to
state that the Board's report should include
recommendations on whether electronic transmittal of
prescriptions should be encouraged, and if so, how
(keeping in mind the obstacles that small clinics or
single-physician clinics would have in using an
electronic transmission system). The recommendations
should also address systems to protect not only the
patient's identity but also his or her privacy, which is
a concept that, in light of the current debate over
personal information made available online, is much
larger and more complex than simple personal identity.
SHOULD THE LANGUAGE REGARDING THE MEDICAL BOARD'S REPORT
BE REVISED AS SUGGESTED?
Support: California Medical Board; California Board of
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Pharmacy, California Medical Association; California
Optometric Association
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: AB 1490 (Thomson) - would
provide for patients to access
laboratory test results online; this
bill will be heard in Committee
today.
AB 826 (Cohn) - would authorize a
pharmacist to initiate the drug
regimen of a patient in a health
facility pursuant to a written order
or prescription and would authorize
the pharmacist to provide written or
electronic notification of that
action. This bill is on the Senate
Third Reading File.
Prior Legislation: SB 1875 (Speier, Chapter 816, Statutes
of 2000)
Prior Vote: Asm. Health (Ayes 13, Noes 0)
Asm. Appr. (Consent)
Asm. Flr. (Ayes 75, Noes 0) (Consent)
Sen. B. & P. (Ayes 5, Noes 0).
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