‘The Time to Quibble About the Details is Over’

Bill to mandate e-prescribing controlled substances, intended to combat substance use crisis, set for hearing

A search on Amazon for “prescription paper” turns up 808 results. Many boast security features to guard against copying, tampering and other types of fraud. But those features don’t seem like they’d prevent anyone from printing or writing a forged prescription as long as they know enough about what it should look like. So pharmacies have shifted to a mindset of constant suspicion about the validity of paper prescriptions.

But Colorado may join a handful of other states in requiring prescriptions for controlled substances to be electronic for pharmacies to fill them. The Senate Business, Labor and Technology Committee will hear Senate Bill 79 today, one of a package of state bills intended to combat Colorado’s substance use crisis. Electronic prescriptions aim to reduce types of fraud such as forgery and “doctor shopping.” 

E-prescribing integrates with states’ prescription drug monitoring programs (PDMP), which track prescriptions using a centralized database and allow pharmacies to see if a person has multiple prescriptions for the same drug from different doctors.

“Democrat states like New York have acted, Republican states like Arizona have acted,” said Colorado Sen. Kevin Priola, a primary sponsor of Senate Bill 79. “The time to quibble about the details, in my opinion, is over. … We need to start moving forward on a number of prescriptions, pardon the pun.”

Colorado’s bill would go into effect July 1, 2021, for podiatrists, physicians, physician assistants, advanced practice nurses and optometrists. Dentists and practitioners in rural areas or in solo practice would have to comply starting July 2023.

The Drug Enforcement Agency began allowing physicians to electronically prescribe controlled substances in 2010. Several states have passed laws mandating e-prescribing in some form since then, and some of the laws include non-controlled substances as well. Colorado’s Senate bill 79 covers Schedule II, III and IV controlled substances, which include drugs such as hydrocodone, methadone, ketamine, Xanax and Valium.

Arizona, Minnesota, New York, Connecticut and Maine already have laws in effect that require electronic prescribing. Several other states have laws set to go into effect in 2020 or 2022.

Priola said electronic prescriptions also allow pharmacies to partially fill prescriptions, so a person can get only what they need at a given time to reduce the chance of developing dependency or having extra pills lying around at risk of being stolen.

The bill contains a number of exceptions, which Priola remembers taking the most hashing out. They include carve-outs for situations such as an electronic outage making e-prescriptions temporarily unavailable or a prescription is sent to a pharmacy out-of-state for filling.

Even though the DEA has allowed electronic prescribing since 2010, Polsinelli associate Marissa Urban, who represents businesses in the pharmaceutical supply chain and other heath care entities, said practitioners hesitated to adopt it because implementing it can cost a lot, accounting for software costs, integrating it with a company’s existing electronic medical records system, and training costs. Large pharmacy chains have tended to adopt electronic prescriptions more quickly. The cost burden, Urban said, depends on the electronic infrastructure a company already has in place. 

She said she could see pushback coming up related to Senate Bill 79’s exception for physician and physician assistants who write 24 or fewer prescriptions for controlled substances each year. Doctors just above the threshold may take issue with the requirement to implement a costly electronic prescribing system for controlled substances, Urban said. As one possibility, it may be more palatable to amend the threshold to opioid prescriptions.

“Anytime you have a hard numerical line like that, it’s going to create difficulty for people at the margins,” she said.

Legal risks associated with electronic prescribing present a mixed bag. The practice can potentially reduce pharmacies’ exposure to liability for filling fraudulent prescriptions. But the databases storing a lot of sensitive patient information mean elevated risk of cybersecurity breaches, something no industry seems safe from now.

“The penalties and the potential liabilities associated with that can be really high,” Urban said.

Angie Howes of the Colorado Retail Council, said pharmacies shouldn’t have to play the role of investigators to verify prescriptions. “Right now, because doctors are primarily using paper that you can buy off of Amazon.com very easily, [pharmacies] are in a position where they’re trying to figure out, is this a fraudulent prescription, or is this coming from a patient that really needs it?” she said.

“More and more, we’re finding that when cities and counties are looking at who is responsible and who needs to pay for some of the costs that they have incurred through the opioid crisis, they’re starting to name our retail-chain pharmacies in their suits.”

Government agencies can use data mining techniques to identify seemingly irregular or fraudulent prescribing patterns. But Urban said liability gets muddier in situations involving subjective standard-of-care circumstances.

“If you do have somebody who’s addicted to opioids, for example, is prescribing them an opioid inappropriate when they do have a medical condition that is deserving [of] that prescription?” she said. “It’s a standard of care issue, and it makes it really complicated.”

Howes said electronic prescribing laws intend to cut down on fraudulent practices while trying not to hamstring doctors from prescribing medications their patients legitimately need. “That we’ll eventually get the prescribers in the state to be at 100 percent e-prescribing of controlled substances is a big deal.”

— Julia Cardi

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