S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3334

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 24, 2011
                               ___________

Introduced  by M. of A. GOTTFRIED, BING, CAHILL, LAVINE, PAULIN, GABRYS-
  ZAK, MILLMAN, ORTIZ, RODRIGUEZ, THIELE, WEPRIN --  Multi-Sponsored  by
  -- M. of A. ABINANTI, GALEF, JACOBS, McENENY, SWEENEY -- read once and
  referred to the Committee on Higher Education

AN   ACT   to  amend  the  education  law,  in  relation  to  electronic
  prescriptions and generic substitution

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  6802 of the education law is amended by adding a
new subdivision 23 to read as follows:
  23. "ELECTRONIC PRESCRIPTION" MEANS A PRESCRIPTION CREATED,  RECORDED,
OR  STORED BY ELECTRONIC MEANS; ISSUED WITH AN ELECTRONIC SIGNATURE; AND
TRANSMITTED BY ELECTRONIC MEANS, IN ACCORDANCE WITH REGULATIONS  OF  THE
COMMISSIONER  AND  APPLICABLE  REGULATIONS OF THE COMMISSIONER OF HEALTH
AND FEDERAL REGULATIONS; PROVIDED, HOWEVER, THAT AN ORIGINAL  HARD  COPY
PRESCRIPTION  THAT  IS CREATED ELECTRONICALLY OR OTHERWISE MAY BE TRANS-
MITTED FROM THE PRESCRIBER TO THE PHARMACIST BY FACSIMILE  AND  MUST  BE
MANUALLY  SIGNED. "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING
ELECTRICAL, DIGITAL, MAGNETIC, WIRELESS,  OPTICAL,  ELECTROMAGNETIC,  OR
SIMILAR  CAPABILITIES. "ELECTRONIC SIGNATURE" MEANS AN ELECTRONIC SOUND,
SYMBOL, OR PROCESS, ATTACHED TO OR LOGICALLY ASSOCIATED  WITH  AN  ELEC-
TRONIC  PRESCRIPTION AND EXECUTED OR ADOPTED BY A PERSON WITH THE INTENT
TO SIGN THE PRESCRIPTION, IN ACCORDANCE WITH REGULATIONS OF THE  COMMIS-
SIONER  AND  APPLICABLE  REGULATIONS  OF  THE COMMISSIONER OF HEALTH AND
FEDERAL REGULATIONS.
  S 2. Paragraph (a) of subdivision 6 of section 6810 of  the  education
law,  as  amended by chapter 649 of the laws of 1993, is amended to read
as follows:
  (a) Every prescription written in this state by a person authorized to
issue such prescription shall be on prescription  forms  containing  one
line  for  the  prescriber's signature. The prescriber's signature shall

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05379-01-1
              

A. 3334                             2

validate the prescription. EVERY ELECTRONIC PRESCRIPTION  SHALL  PROVIDE
FOR  THE  PRESCRIBER'S  ELECTRONIC  SIGNATURE,  WHICH SHALL VALIDATE THE
ELECTRONIC PRESCRIPTION. Imprinted conspicuously ON  EVERY  PRESCRIPTION
WRITTEN  IN  THIS STATE in eight point upper case type immediately below
the signature line shall be the words: "THIS PRESCRIPTION WILL BE FILLED
GENERICALLY UNLESS PRESCRIBER WRITES 'd a w' IN THE BOX  BELOW".  Unless
the  prescriber  writes  d a w in such box in the prescriber's own hand-
writing OR, IN THE CASE OF ELECTRONIC PRESCRIPTIONS,  INSERTS  AN  ELEC-
TRONIC  DIRECTION  TO  DISPENSE  THE  DRUG  AS WRITTEN, the prescriber's
signature OR ELECTRONIC SIGNATURE shall designate  approval  of  substi-
tution  by  a  pharmacist of a drug product pursuant to paragraph (o) of
subdivision one of section two hundred six of the public health law.  No
other  letters  or  marks  in  such  box shall prohibit substitution. No
prescription forms used or intended to be used by a person authorized to
issue a prescription shall have 'd a w' preprinted in such box. Such box
shall be placed directly under the signature line and  shall  be  three-
quarters  inch  in  length and one-half inch in height, OR IN COMPARABLE
FORM FOR AN ELECTRONIC PRESCRIPTION AS MAY BE SPECIFIED BY REGULATION OF
THE COMMISSIONER.  Immediately below such box shall be imprinted in  six
point  type  the  words "Dispense As Written". Notwithstanding any other
provision of law, no state official, agency, board or other entity shall
promulgate any regulation or guideline modifying those elements  of  the
prescription  form's  contents  specified  in  this  subdivision. To the
extent otherwise permitted by law, a prescriber may  modify  only  those
elements  of  the  prescription  form's  contents  not specified in this
subdivision.  Notwithstanding any other provision of this section or any
other law, when a generic drug is not available and the brand name  drug
originally prescribed is available and the pharmacist agrees to dispense
the  brand  name product for a price that will not exceed the price that
would have been charged for the generic substitute had  it  been  avail-
able,  substitution  of  a generic drug product will not be required. If
the generic drug product is not available and a medical emergency  situ-
ation,  which  for  purposes of this section is defined as any condition
requiring alleviation of severe pain or which threatens to  cause  disa-
bility or take life if not promptly treated, exists, then the pharmacist
may  dispense  the  brand  name  product  at  his regular price. In such
instances the pharmacist must record the date, hour and  nature  of  the
medical emergency on the back of the prescription and keep a copy of all
such prescriptions.
  S  3. This act shall not be construed to mean or imply that any refer-
ence in any statute or regulation to a prescription, signature, or writ-
ing does not include an electronic prescription,  electronic  signature,
or entry of information by electronic means, respectively.
  S 4. This act shall take effect immediately.