Controlled Substances; Pain Patient's Bill of Rights
Clarifies the prescribing of opiates for pain treatment. Extends the time limit in which scheduled II controlled substances prescriptions must be filled. Establishes the Hawaii Health Corps that will provide loan repayment and stipends for physicians and dentists who agree to work in health professional shortage areas and as first responders during civil defense and other emergencies. Expands the Enterprise Zone Business Tax Credit, general excise tax exemption, and other business incentives to include physicians and dentists who establish or maintain practices in areas designated as enterprise zones. Appropriates funds. (SB2157 HD1)
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO HEALTH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. According to the American College of Physicians, internal medicine section, most pain from disease and chronic conditions can be controlled or even eliminated. For example, even advanced pain can be controlled in 90 to 99 per cent of cases. In nine out of ten cases, physicians can control pain by using pills alone without having to use injections, operations, or other methods. In those few cases in which pain from disease and chronic conditions cannot be eliminated completely, it can be reduced so that the person can live with the pain from day to day and still accomplish activities that are important to the person. The American College of Physicians further states that:
(1) Pain from disease and chronic conditions can be controlled;
(2) The person with advanced pain from disease and chronic conditions has a right to effective pain control;
(3) Part of the job of a caregiver is to ensure effective pain control;
(4) Pain control takes time to achieve, so persistence is vital;
(5) Only the person with pain knows what the pain is like; and
(6) Never assume that pain means the underlying medical condition is spreading.
Furthermore, a pain initiative in Texas states that, while alternatives to drug treatment such as biofeedback, hypnosis, and acupuncture can be effective for some types of pain:
(1) Most pain patients will also require narcotics;
(2) Addiction is extremely rare when narcotics are used to treat pain from disease and chronic conditions; and
(3) Virtually all pain from disease and chronic conditions can be relieved.
A 1999 national pain survey revealed that 50,000,000 Americans suffer from chronic pain as a result of chronic disease, disorder, or accident. It was estimated that another 25,000,000 people live with acute pain from accidents or surgery. Pain is a silent epidemic that affects the lives of individuals and their families. According to the American Academy of Pain Management, effective pain and symptom management is an ethical obligation for all health care providers and organizations.
The 2000 publication, Pain in America: A Research Report, showed that, although 80 per cent of Americans feel that pain is a natural part of aging, only 64 per cent would seek medical treatment for intolerable pain. The report also found that 60 per cent of Americans believe that pain is "just something you have to live with." The perception of 28 per cent of the population is that there is no effective treatment for pain. It is thus important for individuals, their families, and their caregivers to know that there are many effective treatment options for the management of pain and that people do not have to suffer from chronic, debilitating, intolerable pain.
The legislature finds that Hawaii law should permit pain patients to be prescribed appropriate narcotic pain medication. The legislature further finds that pain patients deserve appropriate medical care that relieves the debilitating and intolerable discomforts of pain as much as possible, so that they can lead normal lives to the greatest extent possible and so that their caregivers can be relieved of stress and anxiety in witnessing the ravaging effects of pain on the quality of life of the pain patient in their care.
The purpose of this part is to clarify a pain patient's right to be prescribed controlled substances to relieve pain.
SECTION 2. Section 327H-2, Hawaii Revised Statutes, is amended to read as follows:
Bill of rights. (a) The pain patient's bill of rights
includes the following:
(1) A patient who suffers from severe acute pain or severe chronic pain has the option to request or reject the use of any or all modalities to relieve the pain;
(2) A patient who suffers from severe acute pain or severe chronic pain has the option to choose from appropriate pharmacologic treatment options to relieve severe acute pain or severe chronic pain, including opiate medications, without first having to submit to an invasive medical procedure.
For purposes of this paragraph, "invasive medical procedure" means surgery, destruction of a nerve or other body tissue by manipulation, or the implantation of a drug delivery system or device;
(3) A patient's physician may refuse to prescribe opiate medication for a patient who requests a treatment for severe acute pain or severe chronic pain. However, that physician may inform the patient of physicians who are qualified to treat severe acute pain and severe chronic pain employing methods that include the use of opiates;
(4) A physician who uses opiate therapy to relieve severe acute pain or severe chronic pain may prescribe a dosage deemed medically necessary to relieve the pain;
(5) A patient may voluntarily request that the patient's physician provide an identifying notice of the prescription for purposes of emergency treatment or law enforcement identification; and
(6) With regard to pain patients, the application of this section shall be guided by the medical principle that physical tolerance and dependence are normal consequences of sustained use of opiate medication, distinguishable from psychological dependency or addiction that bears no relationship to pain experienced by a patient. For the purposes of this section, psychological dependency shall be characterized by a patient's compulsion to take a drug notwithstanding the fact that the patient knows the harmful and destructive effect of the drug on the patient. The distinction is one of treatment of pain as opposed to feeding a psychological need. A patient who suffers severe acute pain or severe chronic pain secondary to a diagnosis in any form of disease and chronic conditions may be entitled to receive a prescription of opiate medication for the treatment of the pain, if requested by that patient; provided that:
(A) The particular opiate is appropriate to the treatment of that pain; and
(B) The patient is not addicted to the opiate. For the purposes of this subparagraph, the term "addicted" refers to a psychological dependence, rather than a progressive physical tolerance for the opiate to relieve the pain; provided that the term does not include a narcotic-dependent person as defined in section 329-40.
(6)] (b) Nothing in this section
shall be construed to:
(A)] (1) Expand the authorized
scope of practice of any licensed physician;
(B)] (2) Limit any reporting or
disciplinary provisions applicable to licensed physicians and surgeons who
violate prescribing practices; and
(C)] (3) Prohibit the discipline
or prosecution of a licensed physician for:
(i)] (A) Failing to maintain
complete, accurate, and current records that document the physical examination
and medical history of a patient, the basis for the clinical diagnosis of a
patient, and the treatment plan for a patient;
(ii)] (B) Writing false or
fictitious prescriptions for controlled substances scheduled in the Federal
Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801 et
seq. or in chapter 329;
(iii)] (C) Prescribing,
administering, or dispensing pharmaceuticals in violation of the provisions of
the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.
801 et seq. or of chapter 329;
Diverting medications prescribed for a patient to the licensed physician's own
personal use; and
Causing, or assisting in causing, the suicide, euthanasia, or mercy killing of
any individual; provided that it is not "causing, or assisting in causing,
the suicide, euthanasia, or mercy killing of any individual" to prescribe,
dispense, or administer medical treatment for the purpose of treating severe
acute pain or severe chronic pain, even if the medical treatment may increase
the risk of death, so long as the medical treatment is not also furnished for
the purpose of causing, or the purpose of assisting in causing, death for any
SECTION 3. Section 329-38, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) A schedule II controlled substance prescription shall:
(1) Be filled within [
three] seven days
following the date the prescription was issued to the patient; and
(2) Be supplied to a patient only if the prescription has been filled and held by the pharmacy for not more than seven days."
SECTION 4. The legislature finds that many of the residents of Hawaii are increasingly unable to obtain timely and appropriate health care because of physician and dentist shortages. These shortages primarily affect the rural areas of our state. In the area of medical services, they are especially acute in disciplines such as family practice, obstetrics/gynecology, and orthopedics.
The legislature further finds that the increasingly high cost of a physician's professional education requires physicians to seek out the higher incomes that allow them to repay their student loans. However, physician salaries in rural shortage areas are often lower than those in nonshortage areas.
Loan repayment programs have been successfully used in Hawaii to increase the number of educators serving in hard-to-fill teaching positions, and can also be used to encourage and enable physicians and dentists to provide care in shortage areas. Incentives such as stipends can be provided to physicians and dentists to offset the lower salaries offered in shortage areas. Further, making the enterprise zone business tax credit and general excise tax exemption available to physicians and dentists who practice in those zones provides another incentive that will increase access to health care professionals in Hawaii's underserved areas.
SECTION 5. The purpose of this part is to establish the Hawaii health corps that will provide:
(1) Loan repayment for physicians and dentists who agree to work in health professional shortage areas of the state and as first responders during civil defense and other emergencies; and
(2) Stipends for physicians and dentists who agree to provide services in health professional shortage areas of the state and as first responders during civil defense and other emergencies.
SECTION 6. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
§ -1 Definitions. As used in this chapter, unless the context requires otherwise:
"Dentist" means a person licensed under chapter 448.
"Department" means the department of health.
"Director" means the director of health.
"Eligible education and training program" means an education and training program that leads to eligibility for licensure under chapter 453 or 448.
"Health professional shortage area" means:
(1) Areas of the state designated by the Health Resources and Services Administration of the United States Department of Health and Human Services as having shortages of primary medical care, mental health care, or dental care providers;
(2) Counties with a population of less than five hundred thousand residents;
(3) Rural areas of the state; and
(4) Areas served by community health centers.
"Loan repayment" means the payment of the lesser of up to $30,000 per year for not more than five years or twenty per cent of the amount outstanding on a loan or loans to pay for an eligible education and training program.
"Physician" means a person licensed under chapter 453.
"Program" means the Hawaii health corps program.
"Service obligation" means the physician's or dentist's duty to provide health care services in a health professional shortage area of the state and during periods declared to be an emergency by the governor, undertaken in exchange for program loan repayment or a physician or dentist stipend from the program.
§ -2 Hawaii health corps program established. The Hawaii health corps program is established to encourage physicians and dentists to serve in health professional shortage areas. The program shall be administered by the department. In administering this program, the department shall, in conjunction with the John A. Burns school of medicine:
(1) Adopt rules and develop guidelines to administer the program;
(2) Identify and designate health professional shortage areas;
(3) Establish criteria for the selection, and select physicians and dentists to participate in the stipend portion of the program;
(4) Define and determine compliance with the program service obligations;
(5) Collect and manage reimbursements from loan repayment recipients who do not meet their service obligations under the program;
(6) Publicize the program, particularly to maximize participation by individuals who live in health professional shortage areas;
(7) Solicit and accept grants and donations from public and private sources for the program; and
(8) Establish criteria and procedures for calling program participants into service during a civil defense or other emergency.
§ -3 Hawaii rural health care provider loan repayment program. (a) There is created the Hawaii rural health care provider loan repayment program to be administered by the department in partnership with a financial institution whose operations are principally conducted in Hawaii. The Hawaii rural health care provider program shall provide loan repayments to not more than twenty physicians or dentists per year who commit to:
(1) Serve as a physician in a health professional shortage area of the state, at the same practice site for:
(A) Three consecutive years for graduates of the John A. Burns school of medicine; and
(B) Five consecutive years for all other licensed physicians or dentists who graduated from an eligible education and training program within the United States;
(2) At any time during the three or five years of service under paragraph (1), serve as a physician first responder during a period declared by the governor to be an emergency;
provided that there shall be not more than one hundred participants at any given time; provided further that not more than fifteen per cent of the health care providers selected annually to receive loan repayments shall be dentists.
(b) Eligibility for loan repayments shall be determined by the department on a competitive basis. Preference for loan repayments shall be given to physicians and dentists who reside in or were residents of a health professional shortage area, and physicians who graduated from the John A. Burns school of medicine.
(c) If a loan repayment recipient fails to satisfy the recipient's service obligation, the recipient shall reimburse the program for the total amount of loan repayments received under the program, in periodic installments within a period not to exceed five years, commencing three months after the loan repayment recipient fails to honor the service obligation. The department may charge initial late fees, and the costs of collecting delinquent reimbursements of loan repayments.
(d) In accordance with chapter 103D, the department may enter into written contracts with collection agencies to collect delinquent reimbursements of loan repayments. All payments collected, exclusive of a collection agency's commissions, shall revert and be credited to the Hawaii health corps fund. A collection agency that enters into a written contract with the department to collect delinquent reimbursements of loan repayments pursuant to this section may collect a commission from the debtor in accordance with the terms of, and up to the amounts authorized in, the written contract.
(e) Liability for reimbursement of a loan repayment may be waived or the conditions of reimbursement adjusted for loan repayment recipients who fail to meet their service obligation for good cause. Liability for reimbursement of a loan repayment shall be canceled upon the death or total disability of the borrower. As used in this subsection, "total disability" shall have the same meaning as "person totally disabled" in section 235-1.
§ -4 Hawaii health corps stipend. (a) The department shall award stipends of not more than $10,000 per year to not more than one hundred physicians or dentists per year who agree to:
(1) Provide during the stipend year not less than fifty per cent of their services in a health professional shortage area or not less than ten per cent of their services to uninsured patients; and
(2) Provide first responder emergency services during civil defense and other emergencies proclaimed under section 127-10, 128-7, or 209-2.
(b) No limitation shall be placed on expenditure of the stipend by the recipient. The department shall determine the manner and timing of stipend payments to ensure performance of the stipend service obligation. Not more than ten years of stipends shall be paid to any one recipient. The recipient of a program loan repayment is ineligible for a stipend.
§ -5 Hawaii health corps first responder service obligation. In the event of a civil defense or other emergency, proclaimed under section 127-10, 128-7, or 209-2, physicians and dentists participating in the Hawaii health corps program may be ordered into service by the governor as first responders to serve in areas of the state and in a capacity determined by the director.
§ -6 Criteria for selecting loan repayment and stipend recipients. The department shall establish a planning committee to assist the department in developing criteria for the selection of loan repayment and stipend recipients. The department shall include on the planning committee representatives of the department, the University of Hawaii John A. Burns school of medicine, health care facilities, provider groups, consumers, community and technical colleges, county government, and other appropriate public and private agencies and organizations.
§ -7 Rules. The department shall adopt rules to implement the program. The rules shall be adopted pursuant to chapter 91, but shall be exempt from public notice and public hearing requirements.
§ -8 Hawaii health corps fund. (a) There is established in the treasury of the State the Hawaii health corps fund, to be administered by the department. Any funds appropriated by the legislature for the program, gifts, donations, and grants from public agencies and private persons, reimbursements of loan repayments, proceeds of the operations of the program, and interest earned or accrued on moneys deposited in the fund shall become a part of the fund.
(b) The department may expend moneys from the fund for the purposes of this chapter."
SECTION 7. The department of health shall implement the Hawaii health corps program no later than June 30, 2009.
The director of health shall report to the legislature on the status of the Hawaii health corps program no later than twenty days prior to the convening of each regular session of the legislature beginning with the regular session of 2009.
SECTION 8. The purpose of this part is to increase access to quality health care in health care professional shortage areas by making the enterprise zone business tax credit, general excise tax exemption, and other business incentives available to physicians and dentists who establish or maintain practices in areas designated as enterprise zones.
SECTION 9. Section 209E-2, Hawaii Revised Statutes, is amended by amending the definitions of "medical and health care services" and "service business" to read:
""Medical and health care
services" means diagnosis, treatment, or other acts permissible under
chapters 448 and 453, but does not include medical research, clinical
trials, and telemedicine[
, but not routine medical treatment or services].
"Service business" means any
corporation, partnership, or sole proprietorship that repairs ships, aircraft,
or assisted technology equipment, provides telecommunication services,
information technology design and production services, medical and health care
or] education and training services, or performs medical
research, clinical trials, or telemedicine, as defined in this
SECTION 10. Section 209E-9, Hawaii Revised Statutes, is amended to read as follows:
"§209E-9 Eligibility; qualified business; sale of property or services. (a) Any business firm may be eligible to be designated a qualified business for purposes of this chapter if the business:
(1) Begins the operation of a trade or business within an enterprise zone;
(2) During each taxable year has at least fifty per cent of its enterprise zone establishment's gross receipts attributable to the active conduct of trade or business within the enterprise zone;
(3) Increases its average annual number of full-time employees by at least ten per cent by the end of its first tax year of participation; and
(4) During each subsequent taxable year at least maintains that higher level of employment.
(b) A business firm also may be eligible to be designated a qualified business for purposes of this chapter if the business:
(1) Is actively engaged in the conduct of a trade or business in an area immediately prior to an area being designated an enterprise zone;
(2) Meets the requirements of subsection (a)(2); and
(3) Increases its average annual number of full-time employees employed at the business' establishment or establishments located within the enterprise zone by at least ten per cent annually.
(c) Subsections (a) and (b) notwithstanding, any business firm that is engaged in providing medical and health care services may be eligible to be designated a qualified business for purposes of this chapter if:
(1) The business either meets the requirements of subsection (a)(1) and (2) or (b)(1) and (2); and
(2) The business is located within a health professional shortage area of the state designated by the Health Resources and Services Administration of the United States Department of Health and Human Services as having shortages of primary medical care, mental health care, or dental care providers, and shall include any county with a population of less than five hundred thousand residents, rural areas of the state, areas served by community health centers, and any other area identified by the department of health.
(c)] (d) After designation as
an enterprise zone, each qualified business firm in the zone shall submit
annually to the department an approved form supplied by the department that
provides the information necessary for the department to determine if the
business firm qualifies as a qualified business. The approved form shall be submitted
by each business to the governing body of the county in which the enterprise
zone is located, then forwarded to the department by the governing body of the
(d)] (e) The form referred to
in subsection (c) shall be prima facie evidence of the eligibility of a
business for the purposes of this section.
(e)] (f) Tangible personal
property shall be sold at an establishment of a qualified business within an
enterprise zone and the transfer of title to the buyer of the tangible personal
property shall take place in the same enterprise zone in which the tangible
personal property is sold. Services shall be sold at an establishment of a
qualified business engaged in a service business within an enterprise zone and
the services shall be delivered in the same enterprise zone in which sold. Any
services rendered outside an enterprise zone shall not be deemed to be the
services of a qualified business.
(f)] (g) For any fiscal year
that includes September 11, 2001, a business may use its average annual number
of full-time employees as of August 31, 2001--rather than its average annual
number at the end of its fiscal year including September 11, 2001--if necessary
to meet the requirements of subsection (a)(3) and (4) or (b)(3). A business
may also use its average annual number of full-time employees at the end of its
fiscal year that includes September 11, 2001, as its base number of full-time
employees if necessary to meet the requirements of subsection (a)(3) and (4) or
(b)(3) in future fiscal years."
SECTION 11. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the creation of the Hawaii health corps program.
The sum appropriated shall be expended by the department of health for the purposes of part III of this Act.
SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the administration of health care enterprise zones.
The sum appropriated shall be expended by the department of business, economic development, and tourism for the purposes of part IV of this Act.
SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 14. This Act shall take effect upon its approval; provided that parts III, IV, and V of this Act shall take effect on July 1, 2020, and part IV shall apply to taxable years beginning and gross proceeds received after December 31, 2008.