HOUSE HEALTH COMMITTEE SUBSTITUTE FOR

HOUSE BILL 277

52nd legislature - STATE OF NEW MEXICO - second session, 2016

AN ACT

RELATING TO HEALTH; AMENDING SECTIONS OF THE PUBLIC HEALTH ACT AND THE PHARMACY ACT TO PROVIDE FOR THE AUTHORIZED POSSESSION, STORAGE, DISTRIBUTION, PRESCRIBING AND ADMINISTRATION OF OPIOID ANTAGONISTS; PROVIDING FOR IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 24-23-1 NMSA 1978 (being Laws 2001, Chapter 228, Section 1) is amended to read:

     "24-23-1. AUTHORITY TO POSSESS, STORE, DISTRIBUTE, DISPENSE, PRESCRIBE AND ADMINISTER OPIOID ANTAGONISTS--RELEASE FROM LIABILITY--RULEMAKING.--

          A. A person [authorized under federal, state or local government regulations, other than a licensed health care professional permitted by law to administer an opioid antagonist] may possess an opioid antagonist, regardless of whether the person holds a prescription for the opioid antagonist.

          B. Any person acting under a standing order issued by a licensed prescriber may store or distribute an opioid antagonist.

          C. Pursuant to a valid prescription, a pharmacist may dispense an opioid antagonist to a person:

                (1) at risk of experiencing an opioid-related drug overdose; or

                (2) in a position to assist another person at risk of experiencing an opioid-related drug overdose.

          D. A pharmacist may distribute an opioid antagonist to a registered overdose prevention and education program.

          E. A person may administer an opioid antagonist to another person if the person:

                (1) [he] in good faith, believes the other person is experiencing a drug overdose; and

                (2) [he] acts with reasonable care in administering the drug to the other person.

          [B. A person who administers an opioid antagonist to another person pursuant to Subsection A of this section shall not be subject to civil liability or criminal prosecution as a result of the administration of the drug.]

          F. A licensed prescriber may directly or by standing order prescribe, dispense or distribute an opioid antagonist to:

                (1) a person at risk of experiencing an opioid-related drug overdose;

                (2) a family member, friend or other person in a position to assist a person at risk of experiencing an opioid-related drug overdose;

                (3) an employee, volunteer or representative of a community-based entity providing overdose prevention and education services that is registered with the department; or

                (4) a first responder.

          G. A registered overdose prevention and education program that possesses, stores, distributes or administers an opioid antagonist in accordance with department rules and on standing orders from a licensed prescriber pursuant to this section shall not be subject to civil liability, criminal prosecution or professional disciplinary action arising from the possession, storage, distribution or administration of the opioid antagonist; provided that actions are taken with reasonable care and without willful, wanton or reckless behavior.

          H. A person who possesses or who administers, dispenses or distributes an opioid antagonist to another person pursuant to this section shall not be subject to civil liability, criminal prosecution or professional disciplinary action as a result of the possession, administration, distribution or dispensing of the opioid antagonist; provided that actions are taken with reasonable care and without willful, wanton or reckless behavior.

          I. The department shall create, collect and maintain any individually identifiable information pursuant to this section in a manner consistent with state and federal privacy laws.

          J. The secretary shall promulgate rules relating to overdose prevention and education programs:

                (1) establishing requirements and protocols for the registration of overdose prevention and education programs that are not licensed pharmacies;

                (2) monitoring registered overdose prevention and education programs' storage and distribution of opioid antagonists;

                (3) gathering data from overdose prevention and education programs to inform public health efforts to address overdose prevention efforts; and

                (4) authorizing standards for overdose prevention education curricula, training and the certification of individuals to store and distribute opioid antagonists for the overdose prevention and education program.

          K. As used in this section:

                (1) "administer" means the direct application of a drug to the body of an individual by injection, inhalation, ingestion or any other means;

                (2) "department" means the department of health;

                (3) "dispense" means to evaluate and implement a prescription for an opioid antagonist, including the preparation and delivery of a drug or device to a patient or patient's agent;

                (4) "distribute" means to deliver an opioid antagonist drug or opioid antagonist device by means other than by administering or dispensing;

                (5) "first responder" means any public safety employee or volunteer whose duties include responding rapidly to an emergency, including:

                     (a) a law enforcement officer;

                     (b) a firefighter or certified volunteer firefighter; or

                     (c) emergency medical services personnel;

                (6) "licensed prescriber" means any individual who is authorized by law to prescribe an opioid antagonist in the state;

                (7) "opioid antagonist" means a drug approved by the federal food and drug administration that, when administered, negates or neutralizes in whole or in part the pharmacological effects of an opioid in the body. "Opioid antagonist" shall be limited to naloxone or other like medications that are indicated for use in reversing an opioid overdose and are approved by the department for such purpose;

                (8) "possess" means to have physical control or custody of an opioid antagonist;

               (9) "registered overdose prevention and education program" means any community-based organization, law enforcement agency, detention facility or school that has registered with the department in accordance with department rules and uses an approved department curriculum to teach overdose prevention and opioid antagonist administration;

                (10) "standing order" means a licensed prescriber's instruction or prescribed procedure that is either patient specific or non-patient specific that can be exercised by other persons until changed or canceled by a licensed prescriber; and

                (11) "storage" means possession of an opioid antagonist with the intent to dispense or distribute it."

     SECTION 2. Section 61-11-7 NMSA 1978 (being Laws 1969, Chapter 29, Section 6, as amended) is amended to read:

     "61-11-7. DRUG DISPENSATION--LIMITATIONS.--

          A. The Pharmacy Act does not prohibit:

                (1) [any] a hospital or state or county institution or clinic without the services of a staff pharmacist from acquiring and having in its possession [any] a dangerous drug for the purpose of dispensing if it is in a dosage form suitable for dispensing and if the hospital, institution or clinic employs a consulting pharmacist, and if the consulting pharmacist is not available, the withdrawal of [any] a drug from stock by a licensed professional nurse on the order of a licensed practitioner in such amount as needed for administering to and treatment of [his] a patient;

                (2) the extemporaneous preparation by a licensed professional nurse on the order of a licensed practitioner of simple solutions for injection when the solution may be prepared from a quantity of drug that has been prepared previously by a pharmaceutical manufacturer or pharmacist and obtained by a hospital, institution or clinic in a form suitable for the preparation of the solution;

                (3) the sale of nonnarcotic, nonpoisonous or nondangerous nonprescription medicines or preparations by nonregistered persons or unlicensed stores when sold in their original containers;

                (4) the sale of drugs intended for veterinary use; provided that if [such] the drugs bear the legend: "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian", the drug may be sold or distributed only as provided in Subsection A of Section 26-1-15 NMSA 1978, by a person possessing a license issued by the board pursuant to Subsection B of Section 61-11-14 NMSA 1978;

                (5) the sale to or possession or administration of topical ocular pharmaceutical agents by licensed optometrists who have been certified by the board of optometry for the use of [such] the agents;

                (6) the sale to or possession or administration of oral pharmaceutical agents as authorized in Subsection A of Section 61-2-10.2 NMSA 1978 by licensed optometrists who have been certified by the board of optometry for the use of [such] the agents;

                (7) pharmacy technicians from providing assistance to pharmacists;

                (8) a pharmacist from prescribing dangerous drug therapy, including vaccines and immunizations, under rules and protocols adopted by the board after approval by the New Mexico medical board [of medical examiners] and the board of nursing; [or]

                (9) a pharmacist from exercising [his] the pharmacist's professional judgment in refilling a prescription for a prescription drug, unless prohibited by another state or federal law, without the authorization of the prescribing licensed practitioner, if:

                     (a) failure to refill the prescription might result in an interruption of a therapeutic regimen or create patient suffering;

                     (b) the pharmacist is unable to contact the licensed practitioner after reasonable effort;

                     (c) the quantity of prescription drug dispensed does not exceed a seventy-two-hour supply;

                     (d) the pharmacist informs the patient or the patient's agent at the time of dispensing that the refill is being provided without [such] authorization and that authorization of the licensed practitioner is required for future refills; and

                     (e) the pharmacist informs the licensed practitioner of the emergency refill at the earliest reasonable time; or

                (10) the possession, storage, distribution, dispensing, administration or prescribing of an opioid antagonist in accordance with the provisions of Section 24-23-1 NMSA 1978.

          B. All prescriptions requiring the preparation of dosage forms or amounts of dangerous drugs not available in the stock of a hospital, institution or clinic or a prescription requiring compounding shall be either compounded or dispensed only by a pharmacist."

     SECTION 3. Section 61-11-22 NMSA 1978 (being Laws 1969, Chapter 29, Section 21, as amended) is amended to read:

     "61-11-22. EXEMPTIONS FROM ACT.--

          A. The Pharmacy Act does not apply to licensed practitioners in this state in supplying to their patients any drug if the licensed practitioner is practicing [his] the licensed practitioner's profession and does not keep a pharmacy, advertised or otherwise, for the retailing of dangerous drugs.

          B. The Pharmacy Act does not prevent:

                (1) the personal administration of drugs carried by a licensed practitioner in order to supply the immediate needs of [his] the licensed practitioner's patients; [or]

                (2) the sale of nonnarcotic proprietary preparations; or

                (3) the possession, storage, dispensing, distribution, administration or prescribing of an opioid antagonist in accordance with the provisions of Section 24-23-1 NMSA 1978."

     SECTION 4. REPEAL.--Section 24-23-2 NMSA 1978 (being Laws 2001, Chapter 228, Section 2) is repealed.

     SECTION 5. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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