Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Fidel

DATE TYPED 2/25/05

HB

SHORT TITLE Amend Drug, Device & Cosmetic & Pharmacy Acts SB 413/aSPAC

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Medical Board

New Mexico Pharmacy Board

Office of the Attorney General (AGO)

Department of Health (DOH)

SUMMARY

Synopsis of SPAC Amendment

The Senate Public Affairs Committee Amendment clarifies that a “valid practitioner-patient rela-

tionship” is to be defined by each practitioner’s licensing Board requirements. This new defini-

tion addresses AGO concerns that a “valid practitioner-patient relationship” is described in simi-

lar terms as the Drug, Device and Cosmetic Act.

Synopsis of Original Bill

Senate Bill 413 amends the New Mexico Drug, Device and Cosmetic Act, expands Board pow-

ers under the Pharmacy Act, changes definitions in the Controlled Substances Act, and amends

and repeals certain sections of the NMSA 1978.

Significant Issues

SB 413:

•

Changes definition of prescription to include a practitioner’s agent as one of the persons

Senate Bill 413/aSPAC-- Page 2

from whom a prescription may be received, and permits electronic data transfers and

management of prescription-related data.

•

Includes a new definition that defines a valid practitioner-patient relationship as including

patient history, physical examination and informed consent. The AGO note this defini-

tion is too narrow as, for instance, prescribing pharmacists are not practitioners who do

“physical examination” therefore, they may not have a valid practitioner-patient relation-

ship. The language would allow each prescriber’s board the ability to determine the prac-

titioner-patient relationship. Thus, acupuncturist, physicians, nurses, prescribing phar-

macists, etc would need the licensing board to determine on what constitutes such a rela-

tionship.

•

AGO report SB 413 deletes language requiring the respondent be notified and afforded

an opportunity to present his views before the board before any criminal violation. An

administrative board is not involved in the criminal actions brought by the DA or AGO.

The deleted language required the board to give an administrative hearing before a crimi-

nal referral could be made. The AGO reports deletion would make enormous strides to-

ward the criminal prosecution of individuals.

•

Additional language allows companies to utilize computer storage for pharmaceutical in-

formation.

•

The AGO report deleted language on page 17, (which required notification to physician if

the pharmacist changed the drug dispensed) was unenforceable as a practical matter.

This deletion brings the statute in conformity with standard practices.

•

The Pharmacy Act is changed to allow for emergency dispensing of prescriptions. In the

event of an emergency a pharmacist would be allowed to dispense drugs when the origi-

nal pharmacy is not open or when the physician cannot be reached. This is limited to

civil or public health emergencies. The AGO state this is in conformance with current

law.

•

Allows the pharmacist to delegate duties to the pharmacy technician that do not require

the pharmacist professional judgment. The AGO report this is an expansion of current

pharmacy law and allows the pharmacy technician to be more fully utilized.

•

Contact lens sellers are added to the list of businesses that must be licensed by the Phar-

macy boards. The AGO reports previous change to the Optometry Act allow contact lens

sellers to dispense contact lens thus this change would make the Pharmacy Act in con-

formity with the Optometry Act and allow inspections and disciplinary action to be taken

against sellers of contact lenses. This section would also require licensure of “oxygen

bars” which sell oxygen.

•

Allows Board to charge fees on a per year basis. Licensees can pay for two years of li-

censure instead of one and allows Board to set the expiration date of licenses.

•

Changes the definition of prescription to include a practitioner’s agent as one of the per-

sons relaying a prescription. Current law only allows the practitioner to relay prescrip-

tions. Also allows the electronic transmission of prescriptions.

Senate Bill 413/aSPAC-- Page 3

•

Allows for the deletion of pharmacist and dispensing date from the face of the prescrip-

tion. The AGO report this change is in conformance with federal law, which no longer

require such information on the face of the prescription.

PERFORMANCE IMPLICATIONS

The DOH reports SB 413 supports the strategic direction of improving DOH pharmacy services.

FISCAL IMPLICATIONS

A more accurate and efficient prescription delivery system may save Medicaid and HMOs the

expenses associated with prescription misuse and abuse.

TECHNICAL ISSUES

The AGO states the definition of “valid practitioner-patient relationship” under the Drug Device

and Cosmetic Act, Pharmacy Act and Controlled Substances Act should agree. The definition in

the Drug, Device and Cosmetic Act is more specific.

Adding the word “refill” between “emergency” and “prescription”, on page 21 lines 8 and 17,

and page 22 line 22, to more accurately define the Board’s intent.

A definition of “emergency refill prescription” should be added.

A definition of “civil or public health emergency” should be added.

Page 21, line 11, “New Mexico Board of Medical Examiners” should be replaced with “New

Mexico Medical Board.”

OTHER SUBSTANTIVE ISSUES

DOH reports a 62% increase in prescription drug overdose deaths from 66 (2002) to 107 (2003).

SB 413 supports the electronic data transfers necessary for the management of controlled sub-

stances under the Prescription Monitoring Program; and the monitoring of prescribing patterns

and other prescription drug use through the collection of more detailed data from practitioners.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Situations will continue where a patient may need chronic medications and cannot access their

health care provider.

The Board of Pharmacy will not have tools to monitor prescription drug use, misuse and possible

abuse.

AHO/lg:yr