Florida Senate - 2012                                    SB 1246
       
       
       
       By Senator Hays
       
       
       
       
       20-00825-12                                           20121246__
    1                        A bill to be entitled                      
    2         An act relating to controlled substances; amending s.
    3         893.13, F.S.; prohibiting the knowing use of a
    4         Schedule II controlled substance in a form or manner
    5         other than that in which the manufacturer or
    6         prescriber intended it to be used; providing criminal
    7         penalties; amending ss. 893.055, 893.0551, and
    8         921.0022, F.S.; conforming cross-references; providing
    9         an effective date.
   10  
   11  Be It Enacted by the Legislature of the State of Florida:
   12  
   13         Section 1. Subsection (7) of section 893.13, Florida
   14  Statutes, is amended to read:
   15         893.13 Prohibited acts; penalties.—
   16         (7)(a) A person may not:
   17         1. Distribute or dispense a controlled substance in
   18  violation of this chapter.
   19         2. Refuse or fail to make, keep, or furnish any record,
   20  notification, order form, statement, invoice, or information
   21  required under this chapter.
   22         3. Refuse entry into any premises for any inspection or
   23  refuse to allow any inspection authorized by this chapter.
   24         4. Distribute a controlled substance named or described in
   25  s. 893.03(1) or (2) except pursuant to an order form as required
   26  by s. 893.06.
   27         5. Keep or maintain any store, shop, warehouse, dwelling,
   28  building, vehicle, boat, aircraft, or other structure or place
   29  which is resorted to by persons using controlled substances in
   30  violation of this chapter for the purpose of using these
   31  substances, or which is used for keeping or selling them in
   32  violation of this chapter.
   33         6. Use to his or her own personal advantage, or reveal, any
   34  information obtained in enforcement of this chapter except in a
   35  prosecution or administrative hearing for a violation of this
   36  chapter.
   37         7. Possess a prescription form which has not been completed
   38  and signed by the practitioner whose name appears printed
   39  thereon, unless the person is that practitioner, is an agent or
   40  employee of that practitioner, is a pharmacist, or is a supplier
   41  of prescription forms who is authorized by that practitioner to
   42  possess those forms.
   43         8. Knowingly use a Schedule II controlled substance in a
   44  form or manner other than that in which the manufacturer or
   45  prescriber intended it to be used.
   46         9.8. Withhold information from a practitioner from whom the
   47  person seeks to obtain a controlled substance or a prescription
   48  for a controlled substance that the person making the request
   49  has received a controlled substance or a prescription for a
   50  controlled substance of like therapeutic use from another
   51  practitioner within the previous 30 days.
   52         10.9. Acquire or obtain, or attempt to acquire or obtain,
   53  possession of a controlled substance by misrepresentation,
   54  fraud, forgery, deception, or subterfuge.
   55         11.10. Affix any false or forged label to a package or
   56  receptacle containing a controlled substance.
   57         12.11. Furnish false or fraudulent material information in,
   58  or omit any material information from, any report or other
   59  document required to be kept or filed under this chapter or any
   60  record required to be kept by this chapter.
   61         13.12. Store anhydrous ammonia in a container that is not
   62  approved by the United States Department of Transportation to
   63  hold anhydrous ammonia or is not constructed in accordance with
   64  sound engineering, agricultural, or commercial practices.
   65         14.13. With the intent to obtain a controlled substance or
   66  combination of controlled substances that are not medically
   67  necessary for the person or an amount of a controlled substance
   68  or substances that is not medically necessary for the person,
   69  obtain or attempt to obtain from a practitioner a controlled
   70  substance or a prescription for a controlled substance by
   71  misrepresentation, fraud, forgery, deception, subterfuge, or
   72  concealment of a material fact. For purposes of this
   73  subparagraph, a material fact includes whether the person has an
   74  existing prescription for a controlled substance issued for the
   75  same period of time by another practitioner or as described in
   76  subparagraph 9. 8.
   77         (b) A health care practitioner, with the intent to provide
   78  a controlled substance or combination of controlled substances
   79  that are not medically necessary to his or her patient or an
   80  amount of controlled substances that is not medically necessary
   81  for his or her patient, may not provide a controlled substance
   82  or a prescription for a controlled substance by
   83  misrepresentation, fraud, forgery, deception, subterfuge, or
   84  concealment of a material fact. For purposes of this paragraph,
   85  a material fact includes whether the patient has an existing
   86  prescription for a controlled substance issued for the same
   87  period of time by another practitioner or as described in
   88  subparagraph (a)9. (a)8.
   89         (c) Any person who violates the provisions of subparagraphs
   90  (a)1.-8. (a)1.-7. commits a misdemeanor of the first degree,
   91  punishable as provided in s. 775.082 or s. 775.083; except that,
   92  upon a second or subsequent violation, the person commits a
   93  felony of the third degree, punishable as provided in s.
   94  775.082, s. 775.083, or s. 775.084.
   95         (d) Any person who violates the provisions of subparagraphs
   96  (a)9.-13. (a)8.-12. commits a felony of the third degree,
   97  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
   98         (e) A person or health care practitioner who violates the
   99  provisions of subparagraph (a)14. (a)13. or paragraph (b)
  100  commits a felony of the third degree, punishable as provided in
  101  s. 775.082, s. 775.083, or s. 775.084, if any controlled
  102  substance that is the subject of the offense is listed in
  103  Schedule II, Schedule III, or Schedule IV.
  104         Section 2. Paragraph (a) of subsection (1), paragraph (b)
  105  of subsection (2), and paragraph (f) of subsection (7) of
  106  section 893.055, Florida Statutes, are amended to read:
  107         893.055 Prescription drug monitoring program.—
  108         (1) As used in this section, the term:
  109         (a) “Patient advisory report” or “advisory report” means
  110  information provided by the department in writing, or as
  111  determined by the department, to a prescriber, dispenser,
  112  pharmacy, or patient concerning the dispensing of controlled
  113  substances. All advisory reports are for informational purposes
  114  only and impose no obligations of any nature or any legal duty
  115  on a prescriber, dispenser, pharmacy, or patient. The patient
  116  advisory report shall be provided in accordance with s.
  117  893.13(7)(a)9. 893.13(7)(a)8. The advisory reports issued by the
  118  department are not subject to discovery or introduction into
  119  evidence in any civil or administrative action against a
  120  prescriber, dispenser, pharmacy, or patient arising out of
  121  matters that are the subject of the report; and a person who
  122  participates in preparing, reviewing, issuing, or any other
  123  activity related to an advisory report may not be permitted or
  124  required to testify in any such civil action as to any findings,
  125  recommendations, evaluations, opinions, or other actions taken
  126  in connection with preparing, reviewing, or issuing such a
  127  report.
  128         (2)
  129         (b) The department, when the direct support organization
  130  receives at least $20,000 in nonstate moneys or the state
  131  receives at least $20,000 in federal grants for the prescription
  132  drug monitoring program, shall adopt rules as necessary
  133  concerning the reporting, accessing the database, evaluation,
  134  management, development, implementation, operation, security,
  135  and storage of information within the system, including rules
  136  for when patient advisory reports are provided to pharmacies and
  137  prescribers. The patient advisory report shall be provided in
  138  accordance with s. 893.13(7)(a)9. 893.13(7)(a)8. The department
  139  shall work with the professional health care licensure boards,
  140  such as the Board of Medicine, the Board of Osteopathic
  141  Medicine, and the Board of Pharmacy; other appropriate
  142  organizations, such as the Florida Pharmacy Association, the
  143  Florida Medical Association, the Florida Retail Federation, and
  144  the Florida Osteopathic Medical Association, including those
  145  relating to pain management; and the Attorney General, the
  146  Department of Law Enforcement, and the Agency for Health Care
  147  Administration to develop rules appropriate for the prescription
  148  drug monitoring program.
  149         (7)
  150         (f) The program manager, upon determining a pattern
  151  consistent with the rules established under paragraph (2)(d) and
  152  having cause to believe a violation of s. 893.13(7)(a)9.
  153  893.13(7)(a)8., (8)(a), or (8)(b) has occurred, may provide
  154  relevant information to the applicable law enforcement agency.
  155         Section 3. Subsection (4) of section 893.0551, Florida
  156  Statutes, is amended to read:
  157         893.0551 Public records exemption for the prescription drug
  158  monitoring program.—
  159         (4) The department shall disclose such confidential and
  160  exempt information to the applicable law enforcement agency in
  161  accordance with s. 893.055(7)(f). The law enforcement agency may
  162  disclose the confidential and exempt information received from
  163  the department to a criminal justice agency as defined in s.
  164  119.011 as part of an active investigation that is specific to a
  165  violation of s. 893.13(7)(a)9. 893.13(7)(a)8., s. 893.13(8)(a),
  166  or s. 893.13(8)(b).
  167         Section 4. Paragraph (c) of subsection (3) of section
  168  921.0022, Florida Statutes, is amended to read:
  169         921.0022 Criminal Punishment Code; offense severity ranking
  170  chart.—
  171         (3) OFFENSE SEVERITY RANKING CHART
  172         (c) LEVEL 3
  173  FloridaStatute   FelonyDegree                Description                 
  174  119.10(2)(b)       3rd   Unlawful use of confidential information from police reports.
  175  316.066 (3)(b)-(d)  3rd   Unlawfully obtaining or using confidential crash reports.
  176  316.193(2)(b)      3rd   Felony DUI, 3rd conviction.                 
  177  316.1935(2)        3rd   Fleeing or attempting to elude law enforcement officer in patrol vehicle with siren and lights activated.
  178  319.30(4)          3rd   Possession by junkyard of motor vehicle with identification number plate removed.
  179  319.33(1)(a)       3rd   Alter or forge any certificate of title to a motor vehicle or mobile home.
  180  319.33(1)(c)       3rd   Procure or pass title on stolen vehicle.    
  181  319.33(4)          3rd   With intent to defraud, possess, sell, etc., a blank, forged, or unlawfully obtained title or registration.
  182  327.35(2)(b)       3rd   Felony BUI.                                 
  183  328.05(2)          3rd   Possess, sell, or counterfeit fictitious, stolen, or fraudulent titles or bills of sale of vessels.
  184  328.07(4)          3rd   Manufacture, exchange, or possess vessel with counterfeit or wrong ID number.
  185  376.302(5)         3rd   Fraud related to reimbursement for cleanup expenses under the Inland Protection Trust Fund.
  186  379.2431 (1)(e)5.  3rd   Taking, disturbing, mutilating, destroying, causing to be destroyed, transferring, selling, offering to sell, molesting, or harassing marine turtles, marine turtle eggs, or marine turtle nests in violation of the Marine Turtle Protection Act.
  187  379.2431 (1)(e)6.  3rd   Soliciting to commit or conspiring to commit a violation of the Marine Turtle Protection Act.
  188  400.9935(4)        3rd   Operating a clinic without a license or filing false license application or other required information.
  189  440.1051(3)        3rd   False report of workers’ compensation fraud or retaliation for making such a report.
  190  501.001(2)(b)      2nd   Tampers with a consumer product or the container using materially false/misleading information.
  191  624.401(4)(a)      3rd   Transacting insurance without a certificate of authority.
  192  624.401(4)(b)1.    3rd   Transacting insurance without a certificate of authority; premium collected less than $20,000.
  193  626.902(1)(a) & (b)  3rd   Representing an unauthorized insurer.       
  194  697.08             3rd   Equity skimming.                            
  195  790.15(3)          3rd   Person directs another to discharge firearm from a vehicle.
  196  796.05(1)          3rd   Live on earnings of a prostitute.           
  197  806.10(1)          3rd   Maliciously injure, destroy, or interfere with vehicles or equipment used in firefighting.
  198  806.10(2)          3rd   Interferes with or assaults firefighter in performance of duty.
  199  810.09(2)(c)       3rd   Trespass on property other than structure or conveyance armed with firearm or dangerous weapon.
  200  812.014(2)(c)2.    3rd   Grand theft; $5,000 or more but less than $10,000.
  201  812.0145(2)(c)     3rd   Theft from person 65 years of age or older; $300 or more but less than $10,000.
  202  815.04(4)(b)       2nd   Computer offense devised to defraud or obtain property.
  203  817.034(4)(a)3.    3rd   Engages in scheme to defraud (Florida Communications Fraud Act), property valued at less than $20,000.
  204  817.233            3rd   Burning to defraud insurer.                 
  205  817.234 (8)(b)-(c)  3rd   Unlawful solicitation of persons involved in motor vehicle accidents.
  206  817.234(11)(a)     3rd   Insurance fraud; property value less than $20,000.
  207  817.236            3rd   Filing a false motor vehicle insurance application.
  208  817.2361           3rd   Creating, marketing, or presenting a false or fraudulent motor vehicle insurance card.
  209  817.413(2)         3rd   Sale of used goods as new.                  
  210  817.505(4)         3rd   Patient brokering.                          
  211  828.12(2)          3rd   Tortures any animal with intent to inflict intense pain, serious physical injury, or death.
  212  831.28(2)(a)       3rd   Counterfeiting a payment instrument with intent to defraud or possessing a counterfeit payment instrument.
  213  831.29             2nd   Possession of instruments for counterfeiting drivers’ licenses or identification cards.
  214  838.021(3)(b)      3rd   Threatens unlawful harm to public servant.  
  215  843.19             3rd   Injure, disable, or kill police dog or horse.
  216  860.15(3)          3rd   Overcharging for repairs and parts.         
  217  870.01(2)          3rd   Riot; inciting or encouraging.              
  218  893.13(1)(a)2.     3rd   Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs).
  219  893.13(1)(d)2.     2nd   Sell, manufacture, or deliver s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs within 1,000 feet of university.
  220  893.13(1)(f)2.     2nd   Sell, manufacture, or deliver s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs within 1,000 feet of public housing facility.
  221  893.13(6)(a)       3rd   Possession of any controlled substance other than felony possession of cannabis.
  222  893.13(7)(a)9. 893.13(7)(a)8.  3rd   Withhold information from practitioner regarding previous receipt of or prescription for a controlled substance.
  223  893.13(7)(a)10.893.13(7)(a)9.  3rd   Obtain or attempt to obtain controlled substance by fraud, forgery, misrepresentation, etc.
  224  893.13(7)(a)11. 893.13(7)(a)10.  3rd   Affix false or forged label to package of controlled substance.
  225  893.13(7)(a)12. 893.13(7)(a)11.  3rd   Furnish false or fraudulent material information on any document or record required by chapter 893.
  226  893.13(8)(a)1.     3rd   Knowingly assist a patient, other person, or owner of an animal in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practitioner’s practice.
  227  893.13(8)(a)2.     3rd   Employ a trick or scheme in the practitioner’s practice to assist a patient, other person, or owner of an animal in obtaining a controlled substance.
  228  893.13(8)(a)3.     3rd   Knowingly write a prescription for a controlled substance for a fictitious person.
  229  893.13(8)(a)4.     3rd   Write a prescription for a controlled substance for a patient, other person, or an animal if the sole purpose of writing the prescription is a monetary benefit for the practitioner.
  230  918.13(1)(a)       3rd   Alter, destroy, or conceal investigation evidence.
  231  944.47 (1)(a)1.-2.  3rd   Introduce contraband to correctional facility.
  232  944.47(1)(c)       2nd   Possess contraband while upon the grounds of a correctional institution.
  233  985.721            3rd   Escapes from a juvenile facility (secure detention or residential commitment facility).
  234         Section 5. This act shall take effect October 1, 2012.