Florida Senate - 2013               CS for CS for CS for SB 1192
       
       
       
       By the Committees on Appropriations; Community Affairs; and
       Health Policy; and Senator Grimsley
       
       
       
       576-04972-13                                          20131192c3
    1                        A bill to be entitled                      
    2         An act relating to the provision of health care with
    3         controlled substances; amending s. 456.44, F.S.;
    4         limiting the application of requirements for
    5         prescribing controlled substances; requiring a
    6         physician to consult the prescription drug monitoring
    7         program database before prescribing certain controlled
    8         substances; authorizing the Board of Medicine and the
    9         Board of Osteopathic Medicine to adopt a penalty for
   10         failure to consult the database; exempting nursing
   11         home residents and certain physicians from
   12         requirements regarding prescriptions of controlled
   13         substances; amending s. 465.003, F.S.; defining a
   14         term; conforming a cross-reference; creating s.
   15         465.0065, F.S.; providing notice requirements for
   16         inspection of a pharmacy; amending s. 465.016, F.S.;
   17         providing additional grounds for disciplinary action;
   18         conforming a cross-reference; amending s. 465.022,
   19         F.S.; conforming a cross-reference; requiring a
   20         pharmacy permittee to commence operations within 180
   21         days after permit issuance or show good cause why
   22         operations were not commenced; requiring the Board of
   23         Pharmacy to establish rules; requiring a pharmacy
   24         permittee to be supervised by a prescription
   25         department manager or consultant pharmacist of record;
   26         amending s. 465.023, F.S.; providing additional
   27         grounds for disciplinary action; conforming a cross
   28         reference; creating s. 465.1902, F.S.; providing that
   29         the regulation of pharmacies and pharmacists is
   30         preempted to the state; providing that a local
   31         ordinance, rule, or regulation may not be enacted or
   32         remain in effect which regulates or attempts to
   33         regulate pharmacies or pharmacists in subject matters
   34         regulated under ch. 465, F.S.; amending s. 893.055,
   35         F.S.; deleting obsolete provisions; requiring a
   36         designated agent under the supervision of a health
   37         care practitioner to have access to information in the
   38         prescription drug monitoring program’s database;
   39         deleting a provision that prohibits funds from
   40         prescription drug manufacturers to be used to
   41         implement the prescription drug monitoring program;
   42         authorizing the prescription drug monitoring program
   43         to be funded by state funds; revising the sources of
   44         money which are inappropriate for the direct-support
   45         organization of the prescription drug monitoring
   46         program to receive; amending s. 893.0551, F.S.;
   47         requiring the Department of Health to disclose certain
   48         confidential and exempt information to a designated
   49         agent of a health care practitioner or pharmacist
   50         under certain circumstances; creating s. 893.0552,
   51         F.S.; providing that regulation of the licensure,
   52         activity, and operation of pain-management clinics is
   53         preempted to the state under certain circumstances;
   54         authorizing a local government or political
   55         subdivision of the state to enact certain ordinances
   56         regarding local business taxes and land development;
   57         amending ss. 409.9201, 458.331, 459.015, 465.014,
   58         465.015, 465.0156, 465.0197, 465.1901, 499.003, and
   59         893.02, F.S.; conforming cross-references; providing
   60         an effective date.
   61  
   62  Be It Enacted by the Legislature of the State of Florida:
   63  
   64         Section 1. Section 456.44, Florida Statutes, is amended to
   65  read:
   66         456.44 Controlled substance prescribing.—
   67         (1) DEFINITIONS.—
   68         (a) “Addiction medicine specialist” means a board-certified
   69  psychiatrist with a subspecialty certification in addiction
   70  medicine or who is eligible for such subspecialty certification
   71  in addiction medicine, an addiction medicine physician certified
   72  or eligible for certification by the American Society of
   73  Addiction Medicine, or an osteopathic physician who holds a
   74  certificate of added qualification in Addiction Medicine through
   75  the American Osteopathic Association.
   76         (b) “Adverse incident” means any incident set forth in s.
   77  458.351(4)(a)-(e) or s. 459.026(4)(a)-(e).
   78         (c) “Board-certified pain management physician” means a
   79  physician who possesses board certification in pain medicine by
   80  the American Board of Pain Medicine, board certification by the
   81  American Board of Interventional Pain Physicians, or board
   82  certification or subcertification in pain management or pain
   83  medicine by a specialty board recognized by the American
   84  Association of Physician Specialists or the American Board of
   85  Medical Specialties or an osteopathic physician who holds a
   86  certificate in Pain Management by the American Osteopathic
   87  Association.
   88         (d) “Board eligible” means successful completion of an
   89  anesthesia, physical medicine and rehabilitation, rheumatology,
   90  or neurology residency program approved by the Accreditation
   91  Council for Graduate Medical Education or the American
   92  Osteopathic Association for a period of 6 years from successful
   93  completion of such residency program.
   94         (e) “Chronic nonmalignant pain” means pain unrelated to
   95  cancer which persists beyond the usual course of disease or the
   96  injury that is the cause of the pain or more than 90 days after
   97  surgery.
   98         (f) “Mental health addiction facility” means a facility
   99  licensed under chapter 394 or chapter 397.
  100         (2) REGISTRATION.—Effective January 1, 2012, A physician
  101  licensed under chapter 458, chapter 459, chapter 461, or chapter
  102  466 who prescribes more than a 30-day supply of any controlled
  103  substance, listed in Schedule II, Schedule III, or Schedule IV
  104  as defined in s. 893.03, over a 6-month period to any one
  105  patient for the treatment of chronic nonmalignant pain, must:
  106         (a) Designate himself or herself as a controlled substance
  107  prescribing practitioner on the physician’s practitioner
  108  profile.
  109         (b) Comply with the requirements of this section and
  110  applicable board rules.
  111         (3) STANDARDS OF PRACTICE.—The standards of practice in
  112  this section do not supersede the level of care, skill, and
  113  treatment recognized in general law related to health care
  114  licensure.
  115         (a) A complete medical history and a physical examination
  116  must be conducted before beginning any treatment and must be
  117  documented in the medical record. The exact components of the
  118  physical examination shall be left to the judgment of the
  119  clinician who is expected to perform a physical examination
  120  proportionate to the diagnosis that justifies a treatment. The
  121  medical record must, at a minimum, document the nature and
  122  intensity of the pain, current and past treatments for pain,
  123  underlying or coexisting diseases or conditions, the effect of
  124  the pain on physical and psychological function, a review of
  125  previous medical records, previous diagnostic studies, and
  126  history of alcohol and substance abuse. The medical record shall
  127  also document the presence of one or more recognized medical
  128  indications for the use of a controlled substance. Each
  129  registrant must develop a written plan for assessing each
  130  patient’s risk of aberrant drug-related behavior, which may
  131  include patient drug testing. Registrants must assess each
  132  patient’s risk for aberrant drug-related behavior and monitor
  133  that risk on an ongoing basis in accordance with the plan.
  134         (b) Before or during a new patient’s visit for services for
  135  the treatment of pain at a pain-management clinic registered
  136  under s. 458.3265 or s. 459.0137, a physician shall consult the
  137  prescription drug monitoring program database provided under s.
  138  893.055(2)(a) before prescribing a controlled substance listed
  139  in Schedule II or Schedule III in s. 893.03. The physician may
  140  designate an agent under his or her supervision to consult the
  141  database. The Board of Medicine under chapter 458 and the Board
  142  of Osteopathic Medicine under chapter 459 shall adopt rules to
  143  establish a penalty for a physician who does not comply with
  144  this subsection.
  145         (c)(b) Each registrant must develop a written
  146  individualized treatment plan for each patient. The treatment
  147  plan shall state objectives that will be used to determine
  148  treatment success, such as pain relief and improved physical and
  149  psychosocial function, and shall indicate if any further
  150  diagnostic evaluations or other treatments are planned. After
  151  treatment begins, the physician shall adjust drug therapy to the
  152  individual medical needs of each patient. Other treatment
  153  modalities, including a rehabilitation program, shall be
  154  considered depending on the etiology of the pain and the extent
  155  to which the pain is associated with physical and psychosocial
  156  impairment. The interdisciplinary nature of the treatment plan
  157  shall be documented.
  158         (d)(c) The physician shall discuss the risks and benefits
  159  of the use of controlled substances, including the risks of
  160  abuse and addiction, as well as physical dependence and its
  161  consequences, with the patient, persons designated by the
  162  patient, or the patient’s surrogate or guardian if the patient
  163  is incompetent. The physician shall use a written controlled
  164  substance agreement between the physician and the patient
  165  outlining the patient’s responsibilities, including, but not
  166  limited to:
  167         1. Number and frequency of controlled substance
  168  prescriptions and refills.
  169         2. Patient compliance and reasons for which drug therapy
  170  may be discontinued, such as a violation of the agreement.
  171         3. An agreement that controlled substances for the
  172  treatment of chronic nonmalignant pain shall be prescribed by a
  173  single treating physician unless otherwise authorized by the
  174  treating physician and documented in the medical record.
  175         (e)(d) The patient shall be seen by the physician at
  176  regular intervals, not to exceed 3 months, to assess the
  177  efficacy of treatment, ensure that controlled substance therapy
  178  remains indicated, evaluate the patient’s progress toward
  179  treatment objectives, consider adverse drug effects, and review
  180  the etiology of the pain. Continuation or modification of
  181  therapy shall depend on the physician’s evaluation of the
  182  patient’s progress. If treatment goals are not being achieved,
  183  despite medication adjustments, the physician shall reevaluate
  184  the appropriateness of continued treatment. The physician shall
  185  monitor patient compliance in medication usage, related
  186  treatment plans, controlled substance agreements, and
  187  indications of substance abuse or diversion at a minimum of 3
  188  month intervals.
  189         (f)(e) The physician shall refer the patient as necessary
  190  for additional evaluation and treatment in order to achieve
  191  treatment objectives. Special attention shall be given to those
  192  patients who are at risk for misusing their medications and
  193  those whose living arrangements pose a risk for medication
  194  misuse or diversion. The management of pain in patients with a
  195  history of substance abuse or with a comorbid psychiatric
  196  disorder requires extra care, monitoring, and documentation and
  197  requires consultation with or referral to an addiction medicine
  198  specialist or psychiatrist.
  199         (g)(f) A physician registered under this section must
  200  maintain accurate, current, and complete records that are
  201  accessible and readily available for review and comply with the
  202  requirements of this section, the applicable practice act, and
  203  applicable board rules. The medical records must include, but
  204  are not limited to:
  205         1. The complete medical history and a physical examination,
  206  including history of drug abuse or dependence.
  207         2. Diagnostic, therapeutic, and laboratory results.
  208         3. Evaluations and consultations.
  209         4. Treatment objectives.
  210         5. Discussion of risks and benefits.
  211         6. Treatments.
  212         7. Medications, including date, type, dosage, and quantity
  213  prescribed.
  214         8. Instructions and agreements.
  215         9. Periodic reviews.
  216         10. Results of any drug testing.
  217         11. A photocopy of the patient’s government-issued photo
  218  identification.
  219         12. If a written prescription for a controlled substance is
  220  given to the patient, a duplicate of the prescription.
  221         13. The physician’s full name presented in a legible
  222  manner.
  223         (h)(g) Patients with signs or symptoms of substance abuse
  224  shall be immediately referred to a board-certified pain
  225  management physician, an addiction medicine specialist, or a
  226  mental health addiction facility as it pertains to drug abuse or
  227  addiction unless the physician is board-certified or board
  228  eligible in pain management. Throughout the period of time
  229  before receiving the consultant’s report, a prescribing
  230  physician shall clearly and completely document medical
  231  justification for continued treatment with controlled substances
  232  and those steps taken to ensure medically appropriate use of
  233  controlled substances by the patient. Upon receipt of the
  234  consultant’s written report, the prescribing physician shall
  235  incorporate the consultant’s recommendations for continuing,
  236  modifying, or discontinuing controlled substance therapy. The
  237  resulting changes in treatment shall be specifically documented
  238  in the patient’s medical record. Evidence or behavioral
  239  indications of diversion shall be followed by discontinuation of
  240  controlled substance therapy, and the patient shall be
  241  discharged, and all results of testing and actions taken by the
  242  physician shall be documented in the patient’s medical record.
  243  
  244  This section subsection does not apply to a board-eligible or
  245  board-certified anesthesiologist, physiatrist, rheumatologist,
  246  or neurologist, or to a board-certified physician who has
  247  surgical privileges at a hospital or ambulatory surgery center
  248  and primarily provides surgical services. This section
  249  subsection does not apply to a board-eligible or board-certified
  250  medical specialist who has also completed a fellowship in pain
  251  medicine approved by the Accreditation Council for Graduate
  252  Medical Education or the American Osteopathic Association, or
  253  who is board eligible or board certified in pain medicine by the
  254  American Board of Pain Medicine or a board approved by the
  255  American Board of Medical Specialties or the American
  256  Osteopathic Association and performs interventional pain
  257  procedures of the type routinely billed using surgical codes.
  258  This section subsection does not apply to a physician who
  259  prescribes medically necessary controlled substances for a
  260  patient during an inpatient stay in a hospital licensed under
  261  chapter 395 or to a resident in a facility licensed under part
  262  II of chapter 400. This section does not apply to a physician
  263  licensed under chapter 458 or chapter 459 who writes fewer than
  264  50 prescriptions for a controlled substance for all of his or
  265  her patients during a 1-year period.
  266         Section 2. Present subsections (1) through (17) of section
  267  465.003, Florida Statutes, are renumbered as subsections (2)
  268  through (18), respectively, paragraph (a) of present subsection
  269  (11) of that section is amended, and a new subsection (1) is
  270  added to that section, to read:
  271         465.003 Definitions.—As used in this chapter, the term:
  272         (1) “Abandoned” means the status of a pharmacy permit of a
  273  person or entity that was issued the permit but fails to
  274  commence pharmacy operations within 180 days after issuance of
  275  the permit without good cause or fails to follow pharmacy
  276  closure requirements as set by the board.
  277         (12)(11)(a) “Pharmacy” includes a community pharmacy, an
  278  institutional pharmacy, a nuclear pharmacy, a special pharmacy,
  279  and an Internet pharmacy.
  280         1. The term “community pharmacy” includes every location
  281  where medicinal drugs are compounded, dispensed, stored, or sold
  282  or where prescriptions are filled or dispensed on an outpatient
  283  basis.
  284         2. The term “institutional pharmacy” includes every
  285  location in a hospital, clinic, nursing home, dispensary,
  286  sanitarium, extended care facility, or other facility,
  287  hereinafter referred to as “health care institutions,” where
  288  medicinal drugs are compounded, dispensed, stored, or sold.
  289         3. The term “nuclear pharmacy” includes every location
  290  where radioactive drugs and chemicals within the classification
  291  of medicinal drugs are compounded, dispensed, stored, or sold.
  292  The term “nuclear pharmacy” does not include hospitals licensed
  293  under chapter 395 or the nuclear medicine facilities of such
  294  hospitals.
  295         4. The term “special pharmacy” includes every location
  296  where medicinal drugs are compounded, dispensed, stored, or sold
  297  if such locations are not otherwise defined in this subsection.
  298         5. The term “Internet pharmacy” includes locations not
  299  otherwise licensed or issued a permit under this chapter, within
  300  or outside this state, which use the Internet to communicate
  301  with or obtain information from consumers in this state and use
  302  such communication or information to fill or refill
  303  prescriptions or to dispense, distribute, or otherwise engage in
  304  the practice of pharmacy in this state. Any act described in
  305  this definition constitutes the practice of pharmacy as defined
  306  in subsection (14)(13).
  307         Section 3. Section 465.0065, Florida Statutes, is created
  308  to read:
  309         465.0065 Notices; form and service.—Each notice served by
  310  the department pursuant to this chapter must be in writing and
  311  must be delivered personally by an agent of the department or by
  312  certified mail to the pharmacy permittee or licensee. If the
  313  pharmacy permittee or licensee refuses to accept service or
  314  evades service or if the agent is otherwise unable to carry out
  315  service after due diligence, the department may post the notice
  316  in a conspicuous place at the pharmacy or at the home or
  317  business address for the licensee.
  318         Section 4. Paragraphs (e) and (s) of subsection (1) of
  319  section 465.016, Florida Statutes, are amended, and paragraph
  320  (u) is added to that subsection, to read:
  321         465.016 Disciplinary actions.—
  322         (1) The following acts constitute grounds for denial of a
  323  license or disciplinary action, as specified in s. 456.072(2):
  324         (e) Violating chapter 499; 21 U.S.C. ss. 301-392, known as
  325  the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et
  326  seq., known as the Comprehensive Drug Abuse Prevention and
  327  Control Act; or chapter 893 or rules adopted thereunder.
  328         (s) Dispensing any medicinal drug based upon a
  329  communication that purports to be a prescription as defined by
  330  s. 465.003 s. 465.003(14) or s. 893.02 when the pharmacist knows
  331  or has reason to believe that the purported prescription is not
  332  based upon a valid practitioner-patient relationship.
  333         (u) Misappropriating drugs, supplies, or equipment from a
  334  pharmacy permittee.
  335         Section 5. Paragraph (j) of subsection (5) of section
  336  465.022, Florida Statutes, is amended, present subsections (10)
  337  through (14) are renumbered as subsections (11) through (15),
  338  respectively, present subsection (10) of that section is
  339  amended, and a new subsection (10) is added to that section, to
  340  read:
  341         465.022 Pharmacies; general requirements; fees.—
  342         (5) The department or board shall deny an application for a
  343  pharmacy permit if the applicant or an affiliated person,
  344  partner, officer, director, or prescription department manager
  345  or consultant pharmacist of record of the applicant:
  346         (j) Has dispensed any medicinal drug based upon a
  347  communication that purports to be a prescription as defined by
  348  s. 465.003 s. 465.003(14) or s. 893.02 when the pharmacist knows
  349  or has reason to believe that the purported prescription is not
  350  based upon a valid practitioner-patient relationship that
  351  includes a documented patient evaluation, including history and
  352  a physical examination adequate to establish the diagnosis for
  353  which any drug is prescribed and any other requirement
  354  established by board rule under chapter 458, chapter 459,
  355  chapter 461, chapter 463, chapter 464, or chapter 466.
  356  
  357  For felonies in which the defendant entered a plea of guilty or
  358  nolo contendere in an agreement with the court to enter a
  359  pretrial intervention or drug diversion program, the department
  360  shall deny the application if upon final resolution of the case
  361  the licensee has failed to successfully complete the program.
  362         (10) The permittee shall commence pharmacy operations
  363  within 180 days after issuance of the permit, or show good cause
  364  to the department why pharmacy operations were not commenced.
  365  Commencement of pharmacy operations includes, but is not limited
  366  to, acts within the scope of the practice of pharmacy, ordering
  367  or receiving drugs, and other similar activities. The board
  368  shall establish rules regarding commencement of pharmacy
  369  operations.
  370         (11)(10)A pharmacy permittee shall be supervised by a
  371  prescription department manager or consultant pharmacist of
  372  record at all times. A permittee must notify the department, on
  373  a form approved by the board, within 10 days after any change in
  374  prescription department manager or consultant pharmacist of
  375  record.
  376         Section 6. Subsection (1) of section 465.023, Florida
  377  Statutes, is amended to read:
  378         465.023 Pharmacy permittee; disciplinary action.—
  379         (1) The department or the board may revoke or suspend the
  380  permit of any pharmacy permittee, and may fine, place on
  381  probation, or otherwise discipline any pharmacy permittee if the
  382  permittee, or any affiliated person, partner, officer, director,
  383  or agent of the permittee, including a person fingerprinted
  384  under s. 465.022(3), has:
  385         (a) Obtained a permit by misrepresentation or fraud or
  386  through an error of the department or the board;
  387         (b) Attempted to procure, or has procured, a permit for any
  388  other person by making, or causing to be made, any false
  389  representation;
  390         (c) Violated any of the requirements of this chapter or any
  391  of the rules of the Board of Pharmacy; of chapter 499, known as
  392  the “Florida Drug and Cosmetic Act”; of 21 U.S.C. ss. 301-392,
  393  known as the “Federal Food, Drug, and Cosmetic Act”; of 21
  394  U.S.C. ss. 821 et seq., known as the Comprehensive Drug Abuse
  395  Prevention and Control Act; or of chapter 893 or rules adopted
  396  thereunder;
  397         (d) Been convicted or found guilty, regardless of
  398  adjudication, of a felony or any other crime involving moral
  399  turpitude in any of the courts of this state, of any other
  400  state, or of the United States;
  401         (e) Been convicted or disciplined by a regulatory agency of
  402  the Federal Government or a regulatory agency of another state
  403  for any offense that would constitute a violation of this
  404  chapter;
  405         (f) Been convicted of, or entered a plea of guilty or nolo
  406  contendere to, regardless of adjudication, a crime in any
  407  jurisdiction which relates to the practice of, or the ability to
  408  practice, the profession of pharmacy;
  409         (g) Been convicted of, or entered a plea of guilty or nolo
  410  contendere to, regardless of adjudication, a crime in any
  411  jurisdiction which relates to health care fraud; or
  412         (h) Dispensed any medicinal drug based upon a communication
  413  that purports to be a prescription as defined by s. 465.003 s.
  414  465.003(14) or s. 893.02 when the pharmacist knows or has reason
  415  to believe that the purported prescription is not based upon a
  416  valid practitioner-patient relationship that includes a
  417  documented patient evaluation, including history and a physical
  418  examination adequate to establish the diagnosis for which any
  419  drug is prescribed and any other requirement established by
  420  board rule under chapter 458, chapter 459, chapter 461, chapter
  421  463, chapter 464, or chapter 466.
  422         Section 7. Section 465.1902, Florida Statutes, is created
  423  to read:
  424         465.1902 Preemption.—The regulation of pharmacies and
  425  pharmacists is expressly preempted to the state. No local
  426  ordinance, rule, or regulation shall be enacted or remain in
  427  effect which regulates or attempts to regulate pharmacies or
  428  pharmacists in subject matters regulated under this chapter,
  429  including, but not limited to, licensure, discipline, pharmacy
  430  permitting, and the dispensing of controlled substances.
  431         Section 8. Paragraph (b) of subsection (2), paragraph (b)
  432  of subsection (7), subsection (10), and paragraph (c) of
  433  subsection (11) of section 893.055, Florida Statutes, are
  434  amended to read:
  435         893.055 Prescription drug monitoring program.—
  436         (2)
  437         (b) The department, when the direct support organization
  438  receives at least $20,000 in nonstate moneys or the state
  439  receives at least $20,000 in federal grants for the prescription
  440  drug monitoring program, shall adopt rules as necessary
  441  concerning the reporting, accessing the database, evaluation,
  442  management, development, implementation, operation, security,
  443  and storage of information within the system, including rules
  444  for when patient advisory reports are provided to pharmacies and
  445  prescribers. The patient advisory report shall be provided in
  446  accordance with s. 893.13(7)(a)8. The department shall work with
  447  the professional health care licensure boards, such as the Board
  448  of Medicine, the Board of Osteopathic Medicine, and the Board of
  449  Pharmacy; other appropriate organizations, such as the Florida
  450  Pharmacy Association, the Florida Medical Association, the
  451  Florida Retail Federation, and the Florida Osteopathic Medical
  452  Association, including those relating to pain management; and
  453  the Attorney General, the Department of Law Enforcement, and the
  454  Agency for Health Care Administration to develop rules
  455  appropriate for the prescription drug monitoring program.
  456         (7)
  457         (b) A pharmacy, prescriber, designated agent under the
  458  supervision of a health care practitioner, or dispenser shall
  459  have access to information in the prescription drug monitoring
  460  program’s database which relates to a patient of that pharmacy,
  461  prescriber, or dispenser in a manner established by the
  462  department as needed for the purpose of reviewing the patient’s
  463  controlled substance prescription history. Other access to the
  464  program’s database shall be limited to the program’s manager and
  465  to the designated program and support staff, who may act only at
  466  the direction of the program manager or, in the absence of the
  467  program manager, as authorized. Access by the program manager or
  468  such designated staff is for prescription drug program
  469  management only or for management of the program’s database and
  470  its system in support of the requirements of this section and in
  471  furtherance of the prescription drug monitoring program.
  472  Confidential and exempt information in the database shall be
  473  released only as provided in paragraph (c) and s. 893.0551. The
  474  program manager, designated program and support staff who act at
  475  the direction of or in the absence of the program manager, and
  476  any individual who has similar access regarding the management
  477  of the database from the prescription drug monitoring program
  478  shall submit fingerprints to the department for background
  479  screening. The department shall follow the procedure established
  480  by the Department of Law Enforcement to request a statewide
  481  criminal history record check and to request that the Department
  482  of Law Enforcement forward the fingerprints to the Federal
  483  Bureau of Investigation for a national criminal history record
  484  check.
  485         (10) All costs incurred by the department in administering
  486  the prescription drug monitoring program shall be funded through
  487  state funds, federal grants, or private funding applied for or
  488  received by the state. The department may not commit funds for
  489  the monitoring program without ensuring funding is available.
  490  The prescription drug monitoring program and the implementation
  491  thereof are contingent upon receipt of the nonstate funding. The
  492  department and state government shall cooperate with the direct
  493  support organization established pursuant to subsection (11) in
  494  seeking state funds, federal grant funds, other nonstate grant
  495  funds, gifts, donations, or other private moneys for the
  496  department if so long as the costs of doing so are not
  497  considered material. Nonmaterial costs for this purpose include,
  498  but are not limited to, the costs of mailing and personnel
  499  assigned to research or apply for a grant. Notwithstanding the
  500  exemptions to competitive-solicitation requirements under s.
  501  287.057(3)(f), the department shall comply with the competitive
  502  solicitation requirements under s. 287.057 for the procurement
  503  of any goods or services required by this section. Funds
  504  provided, directly or indirectly, by prescription drug
  505  manufacturers may not be used to implement the program.
  506         (11) The department may establish a direct-support
  507  organization that has a board consisting of at least five
  508  members to provide assistance, funding, and promotional support
  509  for the activities authorized for the prescription drug
  510  monitoring program.
  511         (c) The State Surgeon General shall appoint a board of
  512  directors for the direct-support organization. Members of the
  513  board shall serve at the pleasure of the State Surgeon General.
  514  The State Surgeon General shall provide guidance to members of
  515  the board to ensure that moneys received by the direct-support
  516  organization are not received from inappropriate sources.
  517  Inappropriate sources include, but are not limited to, donors,
  518  grantors, persons, or organizations, or pharmaceutical
  519  companies, that may monetarily or substantively benefit from the
  520  purchase of goods or services by the department in furtherance
  521  of the prescription drug monitoring program.
  522         Section 9. Paragraphs (d) and (e) of subsection (3) of
  523  section 893.0551, Florida Statutes, are amended to read:
  524         893.0551 Public records exemption for the prescription drug
  525  monitoring program.—
  526         (3) The department shall disclose such confidential and
  527  exempt information to the following entities after using a
  528  verification process to ensure the legitimacy of that person’s
  529  or entity’s request for the information:
  530         (d) A health care practitioner or a designated agent under
  531  his or her supervision who certifies that the information is
  532  necessary to provide medical treatment to a current patient in
  533  accordance with ss. 893.05 and 893.055.
  534         (e) A pharmacist or a designated agent under his or her
  535  supervision who certifies that the requested information will be
  536  used to dispense controlled substances to a current patient in
  537  accordance with ss. 893.04 and 893.055.
  538         Section 10. Section 893.0552, Florida Statutes, is created
  539  to read:
  540         893.0552Preemption of regulation.—
  541         (1) This section preempts to the state all regulation of
  542  the licensure, activity, and operation of pain-management
  543  clinics as defined in ss. 458.3265 and 459.0137 in the following
  544  circumstances:
  545         (a) The clinic is wholly owned and operated by a physician
  546  who performs interventional pain procedures of the type
  547  routinely billed using surgical codes, who has never been
  548  suspended or revoked for prescribing a controlled substance in
  549  Schedule II or Schedule III of s. 893.03 and drugs containing
  550  Alprazolam in excessive or inappropriate quantities that are not
  551  in the best interest of a patient, and who:
  552         1. Has completed a fellowship in pain medicine which is
  553  approved by the Accreditation Council for Graduate Medical
  554  Education or the American Osteopathic Association;
  555         2. Is board-certified in pain medicine by the American
  556  Board of Pain Medicine, board-certified by the American Board of
  557  Interventional Pain Physicians; or
  558         3. Has a board certification or subcertification in pain
  559  management or pain medicine by a specialty board approved by the
  560  American Board of Medical Specialties or the American
  561  Osteopathic Association.
  562         (b) The clinic is wholly owned and operated by a physician
  563  multispecialty practice if one or more board-eligible or board
  564  certified medical specialists has one of the qualifications
  565  specified in subparagraph (a)1., subparagraph (a)2., or
  566  subparagraph (a)3., performs interventional pain procedures of
  567  the type routinely billed using surgical codes, and has never
  568  been suspended or revoked for prescribing a controlled substance
  569  in Schedule II or Schedule III of s. 893.03 and drugs containing
  570  Alprazolam in excessive or inappropriate quantities that are not
  571  in the best interest of a patient.
  572         (2) Notwithstanding subsection (1), the preemption does not
  573  prohibit a local government or political subdivision from
  574  enacting an ordinance regarding local business taxes adopted
  575  pursuant to chapter 205 and land use development regulations
  576  adopted pursuant to chapter 163. A pain-management clinic in
  577  which the regulation of its licensure, activity, and operation
  578  is preempted to the state pursuant to subsection (1) is a
  579  permissible use in a land use or zoning category that permits
  580  hospitals and other health care facilities or clinics as defined
  581  in chapter 395 or s. 408.07. Upon the request of a local
  582  government, a pain-management clinic must annually demonstrate
  583  that it qualifies for preemption pursuant to subsection (1).
  584         Section 11. Subsection (1) of section 409.9201, Florida
  585  Statutes, is amended to read:
  586         409.9201 Medicaid fraud.—
  587         (1) As used in this section, the term:
  588         (a) “Prescription drug” means any drug, including, but not
  589  limited to, finished dosage forms or active ingredients that are
  590  subject to, defined by, or described by s. 503(b) of the Federal
  591  Food, Drug, and Cosmetic Act or by s. 465.003 s. 465.003(8), s.
  592  499.003(46) or (53) or s. 499.007(13).
  593         (b) “Value” means the amount billed to the Medicaid program
  594  for the property dispensed or the market value of a legend drug
  595  or goods or services at the time and place of the offense. If
  596  the market value cannot be determined, the term means the
  597  replacement cost of the legend drug or goods or services within
  598  a reasonable time after the offense.
  599  
  600  The value of individual items of the legend drugs or goods or
  601  services involved in distinct transactions committed during a
  602  single scheme or course of conduct, whether involving a single
  603  person or several persons, may be aggregated when determining
  604  the punishment for the offense.
  605         Section 12. Paragraph (pp) of subsection (1) of section
  606  458.331, Florida Statutes, is amended to read:
  607         458.331 Grounds for disciplinary action; action by the
  608  board and department.—
  609         (1) The following acts constitute grounds for denial of a
  610  license or disciplinary action, as specified in s. 456.072(2):
  611         (pp) Applicable to a licensee who serves as the designated
  612  physician of a pain-management clinic as defined in s. 458.3265
  613  or s. 459.0137:
  614         1. Registering a pain-management clinic through
  615  misrepresentation or fraud;
  616         2. Procuring, or attempting to procure, the registration of
  617  a pain-management clinic for any other person by making or
  618  causing to be made, any false representation;
  619         3. Failing to comply with any requirement of chapter 499,
  620  the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the
  621  Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq.,
  622  the Drug Abuse Prevention and Control Act; or chapter 893, the
  623  Florida Comprehensive Drug Abuse Prevention and Control Act;
  624         4. Being convicted or found guilty of, regardless of
  625  adjudication to, a felony or any other crime involving moral
  626  turpitude, fraud, dishonesty, or deceit in any jurisdiction of
  627  the courts of this state, of any other state, or of the United
  628  States;
  629         5. Being convicted of, or disciplined by a regulatory
  630  agency of the Federal Government or a regulatory agency of
  631  another state for, any offense that would constitute a violation
  632  of this chapter;
  633         6. Being convicted of, or entering a plea of guilty or nolo
  634  contendere to, regardless of adjudication, a crime in any
  635  jurisdiction of the courts of this state, of any other state, or
  636  of the United States which relates to the practice of, or the
  637  ability to practice, a licensed health care profession;
  638         7. Being convicted of, or entering a plea of guilty or nolo
  639  contendere to, regardless of adjudication, a crime in any
  640  jurisdiction of the courts of this state, of any other state, or
  641  of the United States which relates to health care fraud;
  642         8. Dispensing any medicinal drug based upon a communication
  643  that purports to be a prescription as defined in s. 465.003 s.
  644  465.003(14) or s. 893.02 if the dispensing practitioner knows or
  645  has reason to believe that the purported prescription is not
  646  based upon a valid practitioner-patient relationship; or
  647         9. Failing to timely notify the board of the date of his or
  648  her termination from a pain-management clinic as required by s.
  649  458.3265(2).
  650         Section 13. Paragraph (rr) of subsection (1) of section
  651  459.015, Florida Statutes, is amended to read:
  652         459.015 Grounds for disciplinary action; action by the
  653  board and department.—
  654         (1) The following acts constitute grounds for denial of a
  655  license or disciplinary action, as specified in s. 456.072(2):
  656         (rr) Applicable to a licensee who serves as the designated
  657  physician of a pain-management clinic as defined in s. 458.3265
  658  or s. 459.0137:
  659         1. Registering a pain-management clinic through
  660  misrepresentation or fraud;
  661         2. Procuring, or attempting to procure, the registration of
  662  a pain-management clinic for any other person by making or
  663  causing to be made, any false representation;
  664         3. Failing to comply with any requirement of chapter 499,
  665  the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the
  666  Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq.,
  667  the Drug Abuse Prevention and Control Act; or chapter 893, the
  668  Florida Comprehensive Drug Abuse Prevention and Control Act;
  669         4. Being convicted or found guilty of, regardless of
  670  adjudication to, a felony or any other crime involving moral
  671  turpitude, fraud, dishonesty, or deceit in any jurisdiction of
  672  the courts of this state, of any other state, or of the United
  673  States;
  674         5. Being convicted of, or disciplined by a regulatory
  675  agency of the Federal Government or a regulatory agency of
  676  another state for, any offense that would constitute a violation
  677  of this chapter;
  678         6. Being convicted of, or entering a plea of guilty or nolo
  679  contendere to, regardless of adjudication, a crime in any
  680  jurisdiction of the courts of this state, of any other state, or
  681  of the United States which relates to the practice of, or the
  682  ability to practice, a licensed health care profession;
  683         7. Being convicted of, or entering a plea of guilty or nolo
  684  contendere to, regardless of adjudication, a crime in any
  685  jurisdiction of the courts of this state, of any other state, or
  686  of the United States which relates to health care fraud;
  687         8. Dispensing any medicinal drug based upon a communication
  688  that purports to be a prescription as defined in s. 465.003 s.
  689  465.003(14) or s. 893.02 if the dispensing practitioner knows or
  690  has reason to believe that the purported prescription is not
  691  based upon a valid practitioner-patient relationship; or
  692         9. Failing to timely notify the board of the date of his or
  693  her termination from a pain-management clinic as required by s.
  694  459.0137(2).
  695         Section 14. Subsection (1) of section 465.014, Florida
  696  Statutes, is amended to read:
  697         465.014 Pharmacy technician.—
  698         (1) A person other than a licensed pharmacist or pharmacy
  699  intern may not engage in the practice of the profession of
  700  pharmacy, except that a licensed pharmacist may delegate to
  701  pharmacy technicians who are registered pursuant to this section
  702  those duties, tasks, and functions that do not fall within the
  703  purview of s. 465.003 s. 465.003(13). All such delegated acts
  704  shall be performed under the direct supervision of a licensed
  705  pharmacist who shall be responsible for all such acts performed
  706  by persons under his or her supervision. A pharmacy registered
  707  technician, under the supervision of a pharmacist, may initiate
  708  or receive communications with a practitioner or his or her
  709  agent, on behalf of a patient, regarding refill authorization
  710  requests. A licensed pharmacist may not supervise more than one
  711  registered pharmacy technician unless otherwise permitted by the
  712  guidelines adopted by the board. The board shall establish
  713  guidelines to be followed by licensees or permittees in
  714  determining the circumstances under which a licensed pharmacist
  715  may supervise more than one but not more than three pharmacy
  716  technicians.
  717         Section 15. Paragraph (c) of subsection (2) of section
  718  465.015, Florida Statutes, is amended to read:
  719         465.015 Violations and penalties.—
  720         (2) It is unlawful for any person:
  721         (c) To sell or dispense drugs as defined in s. 465.003 s.
  722  465.003(8) without first being furnished with a prescription.
  723         Section 16. Subsection (8) of section 465.0156, Florida
  724  Statutes, is amended to read:
  725         465.0156 Registration of nonresident pharmacies.—
  726         (8) Notwithstanding s. 465.003 s. 465.003(10), for purposes
  727  of this section, the registered pharmacy and the pharmacist
  728  designated by the registered pharmacy as the prescription
  729  department manager or the equivalent must be licensed in the
  730  state of location in order to dispense into this state.
  731         Section 17. Subsection (4) of section 465.0197, Florida
  732  Statutes, is amended to read:
  733         465.0197 Internet pharmacy permits.—
  734         (4) Notwithstanding s. 465.003 s. 465.003(10), for purposes
  735  of this section, the Internet pharmacy and the pharmacist
  736  designated by the Internet pharmacy as the prescription
  737  department manager or the equivalent must be licensed in the
  738  state of location in order to dispense into this state.
  739         Section 18. Section 465.1901, Florida Statutes, is amended
  740  to read:
  741         465.1901 Practice of orthotics and pedorthics.—The
  742  provisions of chapter 468 relating to orthotics or pedorthics do
  743  not apply to any licensed pharmacist or to any person acting
  744  under the supervision of a licensed pharmacist. The practice of
  745  orthotics or pedorthics by a pharmacist or any of the
  746  pharmacist’s employees acting under the supervision of a
  747  pharmacist shall be construed to be within the meaning of the
  748  term “practice of the profession of pharmacy” as set forth in s.
  749  465.003 s. 465.003(13), and shall be subject to regulation in
  750  the same manner as any other pharmacy practice. The Board of
  751  Pharmacy shall develop rules regarding the practice of orthotics
  752  and pedorthics by a pharmacist. Any pharmacist or person under
  753  the supervision of a pharmacist engaged in the practice of
  754  orthotics or pedorthics is not precluded from continuing that
  755  practice pending adoption of these rules.
  756         Section 19. Subsection (43) of section 499.003, Florida
  757  Statutes, is amended to read:
  758         499.003 Definitions of terms used in this part.—As used in
  759  this part, the term:
  760         (43) “Prescription drug” means a prescription, medicinal,
  761  or legend drug, including, but not limited to, finished dosage
  762  forms or active pharmaceutical ingredients subject to, defined
  763  by, or described by s. 503(b) of the Federal Food, Drug, and
  764  Cosmetic Act or s. 465.003 s. 465.003(8), s. 499.007(13), or
  765  subsection (11), subsection (46), or subsection (53), except
  766  that an active pharmaceutical ingredient is a prescription drug
  767  only if substantially all finished dosage forms in which it may
  768  be lawfully dispensed or administered in this state are also
  769  prescription drugs.
  770         Section 20. Subsection (22) of section 893.02, Florida
  771  Statutes, is amended to read:
  772         893.02 Definitions.—The following words and phrases as used
  773  in this chapter shall have the following meanings, unless the
  774  context otherwise requires:
  775         (22) “Prescription” means and includes an order for drugs
  776  or medicinal supplies written, signed, or transmitted by word of
  777  mouth, telephone, telegram, or other means of communication by a
  778  duly licensed practitioner licensed by the laws of the state to
  779  prescribe such drugs or medicinal supplies, issued in good faith
  780  and in the course of professional practice, intended to be
  781  filled, compounded, or dispensed by another person licensed by
  782  the laws of the state to do so, and meeting the requirements of
  783  s. 893.04. The term also includes an order for drugs or
  784  medicinal supplies so transmitted or written by a physician,
  785  dentist, veterinarian, or other practitioner licensed to
  786  practice in a state other than Florida, but only if the
  787  pharmacist called upon to fill such an order determines, in the
  788  exercise of his or her professional judgment, that the order was
  789  issued pursuant to a valid patient-physician relationship, that
  790  it is authentic, and that the drugs or medicinal supplies so
  791  ordered are considered necessary for the continuation of
  792  treatment of a chronic or recurrent illness. However, if the
  793  physician writing the prescription is not known to the
  794  pharmacist, the pharmacist shall obtain proof to a reasonable
  795  certainty of the validity of said prescription. A prescription
  796  order for a controlled substance shall not be issued on the same
  797  prescription blank with another prescription order for a
  798  controlled substance which is named or described in a different
  799  schedule, nor shall any prescription order for a controlled
  800  substance be issued on the same prescription blank as a
  801  prescription order for a medicinal drug, as defined in s.
  802  465.003 s. 465.003(8), which does not fall within the definition
  803  of a controlled substance as defined in this act.
  804         Section 21. This act shall take effect July 1, 2013.