05 LC 33
0913S
The
House Committee on Health and Human Services offers the following substitute to
SB 109:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating
to controlled substances, so as to provide for legislative findings; to provide
for definitions; to provide for immunity; to provide for applicability; to
provide for notification of health care providers; to amend Article 1 of Chapter
1 of Title 31 of the Official Code of Georgia Annotated, relating to general
provisions relative to health, so as to establish the Pain Management Ad Hoc
Advisory Committee; to provide for such
committeés
membership, duties, and duration; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled
substances, is amended by adding at its end a new article to read as
follows:
"ARTICLE
6
16-13-120.
The
General Assembly finds that:
(1)
Many controlled substances have useful and legitimate medical and scientific
purposes and are necessary to maintain the health and general welfare of the
people of this state;
(2)
To treat a
patient́s
pain, a physician should be able to administer a controlled substance in excess
of the recommended dosage, even if its use may increase the risk of death, so
long as it is not also administered for the purpose of causing, or for the
purpose of assisting in causing, death, for any reason; and
(3)
A health care facility or a hospice should not forbid or restrict the use of
controlled substances appropriately administered to relieve pain.
16-13-121.
As
used in this article, the term:
(1)
'Accepted guideline' means a care or practice guideline for pain management
developed by a nationally recognized clinical or professional association,
specialty society, or government sponsored agency that has developed practice or
care guidelines based on original research or on review of existing research and
expert opinion. If there are no currently accepted guidelines available, rules,
policies, guidelines, or regulations issued by the appropriate regulatory board
may serve the function of such guidelines for purposes of this article. Such
board rules, policies, guidelines, or regulations must conform to the intent of
this article. Guidelines established primarily for purposes of coverage,
payment, or reimbursement do not qualify as accepted guidelines when offered to
limit treatment options otherwise covered by this article. For such a guideline
to be an accepted guideline for the purposes of this article, it must not be
inconsistent with the provisions of Code Section 16-13-123. The appropriate
regulatory board may by rule establish that any particular guideline otherwise
qualified to be an accepted guideline is not an accepted guideline on the
grounds that it is inconsistent with the provisions of Code Section 16-13-123;
provided, however, that a guideline that has not been specifically disqualified
by such board rule may be held not to provide immunity in a particular case on
the grounds that it is inconsistent with the provisions of such Code section, in
accordance with the procedures set forth in Code Section 16-13-122.
(2)
'Clinical expert' means an individual who by reason of specialized education or
substantial relevant experience in pain management has knowledge regarding
current standards, practices, and guidelines.
(3)
'Disciplinary action' means both informal and formal and both remedial and
punitive actions taken by a regulatory board against a health care
provider.
(4)
'Health care provider' means:
(A)
A physician licensed under Chapter 34 of Title 43;
(B)
A registered professional nurse and licensed practical nurse licensed or
registered under Chapter 26 of Title 43;
(C)
A
physiciańs
assistant licensed under Chapter 34 of Title 43; and
(D)
A pharmacist licensed under Chapter 4 of Title 26.
(5)
'Regulatory board' means the Composite State Board of Medical Examiners, the
Georgia Board of Nursing, or the State Board of Pharmacy.
(6)
'Therapeutic purpose' means the use of pharmaceutical and nonpharmaceutical
medical treatment that conforms substantially to accepted guidelines for pain
management.
16-13-122.
(a)(1)
A health care provider shall be immune from criminal liability and professional
discipline for the prescription, dispensing, or administration of medical
treatment for the therapeutic purpose of relieving pain in accordance with an
accepted guideline when his or her practice substantially complied with
guidelines so long as the health care provider did not deviate from generally
accepted standards of pain management practice.
(2)
In addition to the immunity provided in paragraph (1) of this subsection, a
pharmacist shall be immune from any civil liability for the dispensing or
administration of medical treatment for the therapeutic purpose of relieving
pain in accordance with an accepted guideline when his or her practice
substantially complied with guidelines so long as the pharmacist did not deviate
from generally accepted standards of pain management practice.
(3)
For purposes of this Code section, the showing of substantial compliance with an
accepted guideline may be rebutted only by clinical expert testimony. A showing
that a guideline otherwise qualified to be an accepted guideline is not an
accepted guideline because it is inconsistent with the provisions of Code
Section 16-13-123 may be made by clinical expert testimony.
(b)
In the event that a disciplinary action or criminal prosecution is pursued, the
appropriate regulatory board or prosecutor shall produce clinical expert
testimony supporting the finding or charge of violation of disciplinary
standards or other legal requirements on the part of the health care provider.
Evidence of noncompliance with an accepted guideline is not sufficient alone to
support disciplinary or criminal action.
(c)
The provisions of this Code section shall apply to health care providers in the
treatment of all patients for pain regardless of the
patient́s
prior or current chemical dependency or addiction. The appropriate regulatory
board may develop and issue rules, regulations, policies, or guidelines
establishing standards and procedures for the application of this article for
the care and treatment of chemically dependent individuals.
16-13-123.
(a)
Nothing in this article shall be construed as expanding the authorized scope of
practice of any health care provider.
(b)
Nothing in this article shall prohibit discipline or prosecution of a health
care provider for:
(1)
Failing to maintain complete, accurate, and current records documenting the
physical examination and medical history of the patient, the basis for the
clinical diagnosis of the patient, and the treatment plan for the
patient;
(2)
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. Section 801, et seq., or in this article;
(3)
Prescribing, dispensing, or administering pharmaceuticals in violation of the
provisions of the Federal Comprehensive Drug Abuse Prevention and Control Act of
1970, 21 U.S.C. Section 801, et seq., or of the laws of this state;
(4)
Diverting medications prescribed for a patient to the
provideŕs
own personal use; or
(5)
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 alleviating pain or
discomfort, even if such use may increase the risk of death, so long as it is
not also administered for the purpose of causing, or for the purpose of
assisting in causing, death, for any reason.
16-13-124.
The
appropriate regulatory board shall make reasonable efforts to notify health care
providers under its jurisdiction of the existence of this article. At a minimum,
the regulatory board shall inform any health care provider investigated in
relation to the
provideŕs
practices in the management of pain of the existence of this
article."
SECTION
2.
Article
1 of Chapter 1 of Title 31 of the Official Code of Georgia Annotated, relating
to general provisions relative to health, is amended by adding a new Code
section to the end of such article to read as follows:
"31-1-10.
(a)
There is established the Pain Management Ad Hoc Advisory Committee. The purposes
of the committee shall be to:
(1)
Facilitate a discussion among the Attorney General, the appropriate regulatory
boards, and other interested persons that focuses on identifying appropriate
procedures and techniques for the management of pain; and
(2)
Study and report to the Governor and the General Assembly on medical,
pharmaceutical, and patient care issues involving the treatment of pain,
including, but not limited to, the use of Schedule II controlled substances.
Such report shall include recommendations for legislative action regarding pain
management and shall be consistent with the provisions of paragraph (5) of
subsection (b) of Code Section 16-13-123.
(b)
The committee shall review, at a minimum:
(1)
Scientific and medical reviews of controlled substances classified as Schedule
II under Code Section 16-13-26;
(2)
Modern pain management knowledge;
(3)
Modern pain management techniques for the treatment of pain, including the use
of Schedule II controlled substances;
(4)
The adverse impact on patient recovery condition caused by the undertreatment of
pain;
(5)
The identity and quantity of patients who do not receive adequate pain control
treatment and consequences and costs of undertreatment;
(6)
The development of guidelines to establish parameters for the investigation of a
prescriber or dispenser of Schedule II controlled substances for the treatment
of pain; and
(7)
The development of guidelines to educate prescribers, dispensers, patients, law
enforcement, and the public about pain management and regulatory
issues.
(c)
The committee shall consist of 15 members to be appointed as
follows:
(1)
Five members appointed by the Governor, to include three physicians, one
pharmacist, and one representative of law enforcement knowledgeable in Schedule
II medications. The representative of law enforcement shall be selected after
consultation with the Attorney General;
(2)
Eight members appointed by the President Pro Tempore of the Senate, to include
one physician, one pharmacist who specializes in the care of patients in
long-term care facilities, one registered professional nurse, one representative
of the hospice industry, one representative of an organization that represents
persons with a condition requiring ongoing treatment for pain, a member of the
Senate Health and Human Services Committee, and two other members of the Senate;
and
(3)
Six members appointed by the Speaker of the House of Representatives, to include
one physician, a pharmacist, a member of the House Committee on Health and Human
Services, and two other members of the House of Representatives.
(d)
The committee shall select a chairperson and hold its first meeting not later
than February 1, 2006. The committee shall issue a preliminary report of its
activities, tentative findings, and recommendations of issues requiring further
study to the Governor and the General Assembly not later than May 15, 2006. The
committee shall issue a final report to the Governor and to the General Assembly
not later than December 31, 2006.
(e)
The members of the committee shall serve without compensation.
(f)
This Code section shall be automatically repealed on December 31,
2006."
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.