BILL NUMBER:S7908

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to the designation of criminal sale of a prescription for a
controlled substance or a controlled substance by a practitioner or
pharmacist; and to amend the penal law, in relation to creating the
offense of prescription medication fraud and deceit and to criminalize
the sale of a controlled substance by a practitioner or pharmacist

Purpose:  New York is confronting a rapidly growing problem involving
the use, abuse and trafficking of heroin and prescription painkillers.
This package of comprehensive legislation will strengthen New York's
ability to combat abuse of these drugs, and provide communities,
families, and individuals devastated by these dangerous substances
with critical tools for addressing crime and addiction.

Summary of Bills:

These 11 bills would:

* amend Public Health L. (PHL) § 3385-a to further enhance the
investigation capabilities of the Bureau of Narcotic Enforcement (BNE)
in the Department of Health (DOH) by directing the Division of
Criminal Justice Services to give BNE access to criminal history
information currently maintained by the Division;

              

* create a new Penal L. § 178.26 creating the crime of fraud and
deceit related to controlled substances, a Class A misdemeanor;

* rename and amend Penal L. § 220.65 by adding the additional element
of criminal sale of a controlled substance by a practitioner or
pharmacist while he or she purports to act in his or her capacity as a
practitioner or pharmacist;

* amend Criminal Procedure L. § 700.05 (8) (c) to add newly amended
Penal Law § 220.65, as a designated offense for purposes of obtaining
"eavesdropping and surveillance warrants" and amend the Penal L.
460.10 (1)(a) to add Penal L. § 220.65 as a "criminal act" within the
Penal Law definition of "enterprise corruption";

* amend PHL § 3309 to expand distribution of informational cards or
sheets listing, among others, the steps to take before and after an
opioid antagonist is administered;

* amend Mental Hygiene L. § 19.18 to establish the Opioid Addiction
Treatment and Hospital Diversion Demonstration Program whereby the
Commissioner of the Office of Alcoholism and Substance Abuse Services
(OASAS), is authorized to establish demonstration programs throughout
the state to test new approaches to providing services to individuals
who are attempting to detoxify from heroin where a hospital level of
care is unnecessary;

* amend the Mental Hygiene Law by adding a new § 19.18-a to require
OASAS in consultation with the Department of Health to create a
wraparound services demonstration program which would provide services
to adolescents and adults for up to nine months after the successful
completion of a treatment program;


* amend the definition in Family Court Act (FCA) §§ 712 and 735 to
specify that Persons in Need of Supervision (PINS) diversion services,
in cases where the petitioner alleges the child has a substance use
disorder or is in need of immediate detoxification or substance use
disorder services, may include assessment for substance use disorders;

* amend Education L. § 804 to require the Commissioner of Education to
review the existing health curriculum requirements and to incorporate
standards and requirements related to the risks of heroin and opioid
use;

* amend Mental Hygiene L. § 19.07 to require the OASAS to develop, in
consultation with the Department of Health, a multi-media public
education program regarding heroin and opioid abuse and misuse; and

* amend Insurance L. §§ 3216, 3221 and 4303 to improve access to care
by requiring insurers to use peer-reviewed, clinical review criteria
when making decisions regarding the medical necessity of treatment for
persons suffering from substance use disorders, to require that
medical necessity decisions be made by medical professionals who
specialize in behavioral health and substance use, and to ensure that
individuals requiring treatment have access to an expedited appeals
process and that they are not denied care while the appeals process is
underway.

Existing Law:  These bills would amend the Executive Law, the Public
Health Law, the Education Law, the Family Court Act, the Penal Law,
the Insurance Law, and the Mental Hygiene Law.

Justification:  The trafficking and abuse of heroin and opioids is
increasing rapidly.  To combat this onslaught, New York State must
continue to be a leader in the fight against these devastating drugs.
In New York City alone, from 2010 to 2012, heroin-related deaths rose
84%. The destruction caused by heroin has not been limited to New York
City. From 2002 to 2012, the number of young adults across the state,
ages 18-25, using heroin has more than doubled. Upstate, the treatment
admissions involving heroin have gone up 25%. Heroin is inexpensive
compared to other narcotics and it continues to be readily accessible,
making it the drug of choice for many addicts. In fact, felony drug
court participants that reported heroin as their drug of choice
increased from 13% in 2008 to 24% in 2013. This comprehensive
legislative package takes a bold new approach to curb the spread of
these dangerous drugs.

Give BNE Access to Vital Criminal History Information

Criminal background and other key information about the target of any
investigation is a vital component in the investigative process. The
BNE is a crucial collaborator in the investigation and prosecution of
criminal prescribers of opioids. In order to further enhance the
capabilities of the BNE, it is essential that it be able to run
criminal history checks on targets of investigations. This bill would
provide this necessary investigative tool to the BNE, resulting in
successful investigations.

Make Fraud in Obtaining Controlled Substances a Penal Law Crime


Under PHL § 3397, it is an unclassified misdemeanor for a person to
use fraud or deceit to obtain a controlled substance or a prescription
for controlled substances. Adding a similar section to the Penal Law
will further enhance law enforcement's ability to combat such fraud
and deceit, including doctor shopping, by putting police and district
attorneys throughout the state on notice by creating a clearly defined
crime and related penalty within the Penal Law.

Impose Higher Penalties on Certain Professionals Who Divert Controlled
Substances

Penal L. § 220.65 prohibits the sale of a controlled substance by a
practitioner or pharmacist. Currently the sale of a controlled
substance by anyone is a Class D felony. This amendment would create
the higher class C felony for those licensed professionals, including
physicians and pharmacists, who abuse the public's trust by illegally
selling controlled substances under the guise of legitimate medical
practice or other health care practices.

Give Law Enforcement More Tools to Combat Controlled Substance Abuse

Criminal Procedure L. § 700.05(c) would be amended to include the
newly amended and created crimes in Penal L. § 220.65 as an enumerated
offense under the definition of "eavesdropping warrants." This small
but significant amendment would give law enforcement and prosecutors
the ability to utilize eavesdropping warrants to further fully
investigate crimes involving the distribution of controlled
substances.

Penal L. § 460.10(1)(a) would also be amended to include the newly
amended and created crimes in Penal L. § 220.65 under the definition
of the crime of "enterprise corruption". This would empower law
enforcement to further prosecute organized activity related to
prescription drug trafficking in New York State.

Distribute Information on Opioid Antagonists

In 2006, DOH established community-based opioid overdose prevention
programs to train persons likely to witness an overdose on how to
recognize and respond to such a situation, including the use of
naloxone, an opioid antagonist that can reverse the overdose. Since
that time, 130 programs have been registered and 15,000 responders
have been trained. Among those trained have not only been police and
other traditional first responders, but also family members of opioid
users, homeless shelter staff, employees of drug treatment programs,
and drug users themselves. Since 2006, over 850 overdose reversals
have been reported to the Department of Health. This bill would make
an already successful program even more impactful and save many more
lives through the distribution of informational cards or sheets when
opioid antagonists are dispensed. These informational cards would
provide recipients with the important information on how to recognize
symptoms of an overdose; what steps to take, including calling first
responders; and how to access services through OASAS.

Establish a Demonstration Program to Test New Approaches to Treating
Substance Abuse


Through this demonstration program, OASAS would work with its
providers to test new approaches to providing services to individuals
who are attempting to detox from heroin where a hospital level of care
is unnecessary. This demonstration program would provide alternative
short term community based treatment, thereby avoiding unnecessary
emergency room costs. By demonstrating new approaches statewide, OASAS
will be able to study the effectiveness of the new approaches to
determine their validity while, more importantly, addressing the needs
of individuals in need of care.

Establish a Wraparound Program to Provide Comprehensive Treatment
Services

OASAS in consultation with the Department of Health would create a
wraparound services demonstration program which will provide services
to adolescents and adults for up to nine months after the successful
completion of a treatment program. These services would be in the form
of case management services and include addressing:

* Education resources;

* Legal services;

* Financial services;

* Social services;

* Family services;

* Childcare services;

* Peer to peer support;

* Employment support;

* Transportation assistance.

Wraparound services generally refer to a complete and comprehensive
method of providing services that would have the greatest impact on
the individual who is receiving such services. This legislation would
require OASAS to expand its existing case management services and
build relationships in communities across the state to provide
services that will allow for them to provide services to their clients
that will greatly improve their quality of life and greatly reduce the
likelihood of a person relapsing.

Expand the Availability of PINS Diversion Services for Youth

FCA §§ 712 and 735 would be amended to allow the designated lead
agency for the purpose of providing PINS diversion services (either
the local social services district or the local probation department)
to determine whether an assessment for substance use disorder by an
OASAS certified provider of services is necessary in cases where the
youth is alleged to be suffering from a substance use disorder which
could make the youth a danger to himself or herself or others. The
legislation requires OASAS to make available a list of certified
treatment providers to designated lead agencies. It also provides that


the designated lead agency shall not be required to pay for an
assessment for substance use disorder or related services, except in
cases where Medicaid may be used to pay for such assessment or
services.

Establish through the State Education Department an Updated Drug Abuse
Curriculum

This bill would amend Education L. § 804 to require that the
Commissioner of Education update drug abuse curriculum every three
years so that students have the most current and up-to-date
information on coping with drugs and other substances.

Implement a Public Awareness Campaign

This would amend the Mental Hygiene Law to direct OASAS to undertake a
public awareness and educational campaign in cooperation with DOH
utilizing public forums, media (social and mass) as well as all forms
of advertising to educate youth, parents, healthcare professionals and
others about the risks associated with heroin and opioids, how to
recognize signs of addiction and the resources available to deal with
these issues.

Expand Insurance Coverage of Treatment for Patients Suffering from
Substance Abuse

This legislation would improve access to care by requiring insurers to
use peer-reviewed, nationally recognized clinical review criteria when
making decisions regarding the medical necessity of treatment.  This
will require insurers to consistently cover the appropriate level of
treatment for patients suffering from substance use disorders. In
addition, medical necessity decisions will be made by medical
professionals who specialize in behavioral health and substance use.
Further, the legislation would also ensure that individuals requiring
treatment have access to an expedited appeals process and that they
are not denied care while the appeals process is underway.

Budget Implications:  There will be sufficient funding for all
proposals through existing and future appropriations.

Effective Date:  Each bill has its own effective date.