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New year brings new electronic prescribing law

published in McAfee & Taft Healthcare Industry Alert | December 18, 2019

Last year, the Oklahoma legislature joined a growing number of states in taking direct aim at the opioid crisis by enacting legislation designed to combat the forgery of paper prescriptions. More than a year and a half after its passage, House Bill 2931 goes into effect January 1, 2020. The new law specifically mandates that physicians and other practitioners use electronic prescribing for all Schedule II through V controlled substances rather than issuing written, oral or faxed prescriptions. The electronic prescriptions are also subject to the Drug Enforcement Administration’s requirements.

Exceptions to the electronic prescribing rule

The electronic prescription requirement generally applies to any amount of controlled substance that a physician or other practitioner prescribes. However, electronic prescribing is not required for: dosages of Schedule II drugs medically required for a period not to exceed 48 hours that are administered by or at direction of a practitioner, other than a pharmacist, or medication dispensed directly by a practitioner, other than a pharmacist, to an ultimate user; and dosages of Schedule III or IV drugs medically required for a period not to exceed 72 hours that are administered by or at direction of a practitioner, other than a pharmacist, or medication dispensed directly by a practitioner, other than a pharmacist, to an ultimate user.

There are several additional exceptions to the new electronic prescribing requirement. The requirement will not apply to prescriptions for controlled dangerous substances issued by the following:

  • Veterinarians;
  • Physicians and other practitioners who experience temporary technological or electrical failure or other extenuating circumstance that prevents the prescription from being transmitted electronically; provided, however, that the physicians or other practitioners document the reason for the use of this exception in the patient’s medical record;
  • Physicians and other practitioners, other than pharmacists, who dispense directly to patients;
  • Physicians and other practitioners who order controlled dangerous substances to be administered through on-site pharmacies in: hospitals, nursing facilities, hospice inpatient facilities, outpatient dialysis facilities, continuum of care facilities, or a penal institutions;
  • Physicians and other practitioners who write prescriptions to be dispensed by pharmacies located on federal property, provided the physicians and other practitioners document the reason for this exception in the patient’s medical record; and
  • Physicians and other practitioners who receive a waiver or extension from their licensing board.

In addition to the exceptions, there are certain circumstances when electronic prescribing cannot be used. Electronic prescriptions cannot be used in the following circumstances:

  • Compound prescriptions containing two or more commercially available products or two or more active pharmaceutical ingredients
  • Compounded infusion prescriptions containing two or more commercially available products or two or more active pharmaceutical ingredients
  • Prescriptions issued under approved research protocols
  • Instances where the physician or practitioner determines that an electronic prescription cannot be issued in a timely manner and the condition of the patient is at risk

Waivers

Of all the exceptions provided in HB2931, the waiver exception has sparked the most interest. The waiver exception gives physicians and other practitioners time to acquire the requisite technology to comply with the new Oklahoma law and the federal Substance Use-Disorder Prevention That Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT Act, which requires all Medicare Part D-covered controlled substance prescriptions be transmitted electronically by 2021.

Waiver applications are accessible to practitioners as follows:

The Oklahoma State Bureau of Narcotics and Dangerous Drugs Control will issue an official prescription paper form for physicians and practitioners to use when an exception applies. To obtain the prescription form, physicians and practitioners must register with the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control.

If you have any questions about the new e-prescription law, please do not hesitate to contact one of our McAfee & Taft healthcare regulatory attorneys.

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