BILL NUMBER: AB 507 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Hayashi
FEBRUARY 15, 2011
An act to amend Section 4301 of the Business and Professions Code,
and to amend Sections 124960 and 124961 of, and to repeal Section
11453 of, the Health and Safety Code, relating to public health.
LEGISLATIVE COUNSEL'S DIGEST
AB 507, as introduced, Hayashi. Pain management.
(1) Existing law, the Pharmacy Law, provides for the licensure and
regulation of pharmacists and pharmacy technicians by the California
State Board of Pharmacy.
Existing law requires the board to take action against any holder
of a license who is guilty of unprofessional conduct, as defined,
including, but not limited to, the clearly excessive furnishing of
controlled substances in violation of prescribed statutory provisions
relating to the prescription of a controlled substance.
This bill would exempt from this provision any holder of a license
who has a medical basis for furnishing dangerous drugs or
prescription controlled substances, including for pain or a condition
causing pain.
(2) Existing law authorizes the Department of Justice to employ a
physician to interview and examine any patient in connection with the
prescription possession or use of a controlled substance, requires
the patient to submit to the interview and examination, and
authorizes the physician to testify in prescribed administrative
proceedings.
This bill would repeal that provision.
(3) Existing law, the Medical Practice Act, provides for the
licensing and regulation of physicians and surgeons by the Medical
Board of California, and the violation of specified provisions of the
act is a crime. Existing law authorizes a physician and surgeon to
prescribe for, or dispense or administer to, a person under his or
her treatment for a medical condition, drugs or prescription
controlled substances for the treatment of pain or a condition
causing pain, including, but not limited to, intractable pain.
This bill would conform findings and declarations and other
references to severe chronic intractable pain and to the California
Intractable Pain Treatment Act.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4301 of the Business and Professions Code is
amended to read:
4301. The board shall take action against any holder of a license
who is guilty of unprofessional conduct or whose license has been
procured by fraud or misrepresentation or issued by mistake.
Unprofessional conduct shall include, but is not limited to, any of
the following:
(a) Gross immorality.
(b) Incompetence.
(c) Gross negligence.
(d) The clearly excessive furnishing of controlled substances in
violation of subdivision (a) of Section 11153 of the Health and
Safety Code. Any holder of a license who has a medical basis
for furnishing dangerous drugs or prescription controlled
substances, including for pain or a condition causing pain, shall not
be subject to disciplinary action pursuant to this section.
(e) The clearly excessive furnishing of controlled substances in
violation of subdivision (a) of Section 11153.5 of the Health and
Safety Code. Factors to be considered in determining whether the
furnishing of controlled substances is clearly excessive shall
include, but not be limited to, the amount of controlled substances
furnished, the previous ordering pattern of the customer (including
size and frequency of orders), the type and size of the customer, and
where and to whom the customer distributes its product.
(f) The commission of any act involving moral turpitude,
dishonesty, fraud, deceit, or corruption, whether the act is
committed in the course of relations as a licensee or otherwise, and
whether the act is a felony or misdemeanor or not.
(g) Knowingly making or signing any certificate or other document
that falsely represents the existence or nonexistence of a state of
facts.
(h) The administering to oneself, of any controlled substance, or
the use of any dangerous drug or of alcoholic beverages to the extent
or in a manner as to be dangerous or injurious to oneself, to a
person holding a license under this chapter, or to any other person
or to the public, or to the extent that the use impairs the ability
of the person to conduct with safety to the public the practice
authorized by the license.
(i) Except as otherwise authorized by law, knowingly selling,
furnishing, giving away, or administering, or offering to sell,
furnish, give away, or administer, any controlled substance to an
addict.
(j) The violation of any of the statutes of this state, of any
other state, or of the United States regulating controlled substances
and dangerous drugs.
(k) The conviction of more than one misdemeanor or any felony
involving the use, consumption, or self-administration of any
dangerous drug or alcoholic beverage, or any combination of those
substances.
(l) The conviction of a crime substantially related to the
qualifications, functions, and duties of a licensee under this
chapter. The record of conviction of a violation of Chapter 13
(commencing with Section 801) of Title 21 of the United States Code
regulating controlled substances or of a violation of the statutes of
this state regulating controlled substances or dangerous drugs shall
be conclusive evidence of unprofessional conduct. In all other
cases, the record of conviction shall be conclusive evidence only of
the fact that the conviction occurred. The board may inquire into the
circumstances surrounding the commission of the crime, in order to
fix the degree of discipline or, in the case of a conviction not
involving controlled substances or dangerous drugs, to determine if
the conviction is of an offense substantially related to the
qualifications, functions, and duties of a licensee under this
chapter. A plea or verdict of guilty or a conviction following a plea
of nolo contendere is deemed to be a conviction within the meaning
of this provision. The board may take action when the time for appeal
has elapsed, or the judgment of conviction has been affirmed on
appeal or when an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, or setting
aside the verdict of guilty, or dismissing the accusation,
information, or indictment.
(m) The cash compromise of a charge of violation of Chapter 13
(commencing with Section 801) of Title 21 of the United States Code
regulating controlled substances or of Chapter 7 (commencing with
Section 14000) of Part 3 of Division 9 of the Welfare and
Institutions Code relating to the Medi-Cal program. The record of the
compromise is conclusive evidence of unprofessional conduct.
(n) The revocation, suspension, or other discipline by another
state of a license to practice pharmacy, operate a pharmacy, or do
any other act for which a license is required by this chapter.
(o) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of or conspiring to violate
any provision or term of this chapter or of the applicable federal
and state laws and regulations governing pharmacy, including
regulations established by the board or by any other state or federal
regulatory agency.
(p) Actions or conduct that would have warranted denial of a
license.
(q) Engaging in any conduct that subverts or attempts to subvert
an investigation of the board.
(r) The selling, trading, transferring, or furnishing of drugs
obtained pursuant to Section 256b of Title 42 of the United States
Code to any person a licensee knows or reasonably should have known,
not to be a patient of a covered entity, as defined in paragraph (4)
of subsection (a) of Section 256b of Title 42 of the United States
Code.
(s) The clearly excessive furnishing of dangerous drugs by a
wholesaler to a pharmacy that primarily or solely dispenses
prescription drugs to patients of long-term care facilities. Factors
to be considered in determining whether the furnishing of dangerous
drugs is clearly excessive shall include, but not be limited to, the
amount of dangerous drugs furnished to a pharmacy that primarily or
solely dispenses prescription drugs to patients of long-term care
facilities, the previous ordering pattern of the pharmacy, and the
general patient population to whom the pharmacy distributes the
dangerous drugs. That a wholesaler has established, and employs, a
tracking system that complies with the requirements of subdivision
(b) of Section 4164 shall be considered in determining whether there
has been a violation of this subdivision. This provision shall not be
interpreted to require a wholesaler to obtain personal medical
information or be authorized to permit a wholesaler to have access to
personal medical information except as otherwise authorized by
Section 56 and following of the Civil Code. For purposes of this
section, "long-term care facility" shall have the same meaning given
the term in Section 1418 of the Health and Safety Code.
SEC. 2. Section 11453 of the Health and Safety Code is repealed.
11453. The Department of Justice may employ a physician to
interview and examine any patient for whom any controlled substance
classified in Schedule I, II, or III has been prescribed or to whom
any such controlled substance has been furnished or administered, or
who is an habitual user of such a controlled substance, or who has a
previous addiction record to a substance listed as a controlled
substance classified in Schedule I, II, or III.
The patient shall submit to the interview and examination and
shall not in any manner hinder or impede it.
The physician employed by the Department of Justice to conduct the
interview and examination shall report the results of the
examination and interview to the department.
The physician so employed may testify in any action brought under
this division or in any administrative hearing conducted under the
Medical Practice Act or the Osteopathic Act and his or her testimony
is not privileged.
Every person who violates any provision of this section is guilty
of a misdemeanor.
SEC. 3. Section 124960 of the Health and Safety Code is amended to
read:
124960. The Legislature finds and declares all of the following:
(a) The state has a right and duty to control the illegal use of
opiate drugs.
(b) Inadequate treatment of acute and chronic pain originating
from cancer or noncancerous conditions is a significant health
problem.
(c) For some patients, pain management is the single most
important treatment a physician can provide.
(d) A patient suffering from severe chronic intractable
pain pain or a condition causing pain, including, but
not limited to, intractable pain should have access to proper
treatment of his or her pain.
(e) Due to the complexity of their problems, many patients
suffering from severe chronic intractable pain
pain or a condition causing pain, including, but not limited to,
intractable pain may require referral to a physician with
expertise in the treatment of severe chronic intractable
pain pain or a condition causing pain, including, but
not limited to, intractable pain . In some cases,
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain
is best treated by a team of clinicians in order to address the
associated physical, psychological, social, and vocational issues.
(f) In the hands of knowledgeable, ethical, and experienced pain
management practitioners, opiates administered for severe acute and
severe chronic intractable pain pain or a
condition causing pain, including, but not limited to, intractable
pain can be safe.
(g) Opiates can be an accepted treatment for patients in
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain
who have not obtained relief from any other means of treatment.
(h) A patient suffering from severe chronic intractable
pain pain or a condition causing pain, including, but
not limited to, intractable pain has the option to request or
reject the use of any or all modalities to relieve his or her
severe chronic intractable pain.
(i) A physician treating a patient who suffers from
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain
may prescribe a dosage deemed medically necessary to relieve
severe chronic intractable pain as long as the prescribing
is in conformance with the provisions of the California Intractable
Pain Treatment Act, Section 2241.5 of the Business and Professions
Code.
(j) A patient who suffers from severe chronic intractable pain
has the option to choose opiate medication for the treatment of the
severe chronic intractable pain as long as the prescribing is in
conformance with the provisions of the California
Intractable Pain Treatment Act, Section 2241.5 of the
Business and Professions Code.
(k) The patient's physician may refuse to prescribe opiate
medication for a patient who requests the treatment for
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain .
However, that physician shall inform the patient that there are
physicians who specialize in the treatment of severe chronic
intractable pain pain or a condition causing pain,
including, but not limited to, intractable pain with methods
that include the use of opiates.
SEC. 4. Section 124961 of the Health and Safety Code is amended to
read:
124961. Nothing in this section shall be construed to alter any
of the provisions set forth in the California Intractable
Pain Treatment Act, Section 2241.5 of the Business and
Professions Code. This section shall be known as the Pain Patient's
Bill of Rights.
(a) A patient suffering from severe chronic intractable
pain pain or a condition causing pain, including, but
not limited to, intractable pain has the option to request or
reject the use of any or all modalities in order to relieve his or
her severe chronic intractable pain.
(b) A patient who suffers from severe chronic
intractable pain pain or a condition causing pain,
including, but not limited to, intractable pain has the option
to choose opiate medications to relieve severe chronic
intractable that pain without first having to
submit to an invasive medical procedure, which is defined as surgery,
destruction of a nerve or other body tissue by manipulation, or the
implantation of a drug delivery system or device, as long as the
prescribing physician acts in conformance with the provisions of the
California Intractable Pain Treatment Act, Section 2241.5 of the
Business and Professions Code.
(c) The patient's physician may refuse to prescribe opiate
medication for the patient who requests a treatment for
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain .
However, that physician shall inform refer
the patient that there are to
physicians who specialize in the treatment of severe chronic
intractable treat pain with
and whose methods that include the use
of opiates.
(d) A physician who uses opiate therapy to relieve
severe chronic intractable pain pain or a condition
causing pain, including, but not limited to, intractable pain
may prescribe a dosage deemed medically necessary to relieve
severe chronic intractable the patient's pain,
as long as that prescribing is in conformance with the
California Intractable Pain Treatment Act, Section 2241.5
of the Business and Professions Code.
(e) A patient may voluntarily request that his or her physician
provide an identifying notice of the prescription for purposes of
emergency treatment or law enforcement identification.
(f) Nothing in this section shall do either of the following:
(1) Limit any reporting or disciplinary provisions applicable to
licensed physicians and surgeons who violate prescribing practices or
other provisions set forth in the Medical Practice Act, Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code, or the regulations adopted thereunder.
(2) Limit the applicability of any federal statute or federal
regulation or any of the other statutes or regulations of this state
that regulate dangerous drugs or controlled substances.