Relates to criminal diversion of prescription medications and prescriptions, establishing certain other offenses related thereto

Summary of provisions

Sections 1 through 7 of the bill restructure the existing crime of criminal diversion of prescription medications and prescriptions by amending Penal Law ("PL") sections 178.00, 178.05, 178.10, 178.15, 178.20 and 178.25 and by adding a new section 178.30. This restructuring enhances sanctions when unlawful criminal diversion acts are committed on multiple occasions within a given period of time, and when such acts are committed by a physician, pharmacist or other person authorized to issue a prescription or to dispense prescription medications and devices. section 178.00 is amended to clarify that transactions between undercover agents and those who commit criminal diversion acts may be prosecuted, and section 178.05 is amended to clarify that those seeking to obtain a lawful prescription or prescription medication, and those seeking to assist such persons, are exempt from prosecution for criminal diversion.

Section 8 of the bill adds a new PL Article 179 entitled Fraudulent Prescription, Dispensing and Procurement of Non-controlled substance Prescription Medications and Devices. New PL §179.00 defines the terms prescription medication or device, prescription, controlled substance, dispensing and dispenses for purposes of new Article 179. New PL §179.05 establishes the crime of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices in the third degree; it is a D felony. New PL §179.10 creates that crime in the second degree, as a C felony, and new PL §179.15 creates that crime in the first degree, as a B felony.

Section 9 of the bill adds a new PL Article 219 entitled unlawful possession of Non-controlled Substance prescription Medications and Devices. New PL §219 defines terms for purposes of the new article and new PL §219.05 sets out limitations on application of the new article. New PL §§ 219.10, 219.15, 219.20, 219.25 and 219.30 establish the crimes of unlawful possession of noncontrolled substance prescription medications and devices in the fifth to first degrees.

The amendments in the A-print added language regarding electronic prescriptions and prescription forms. The phrase "electronic prescription" was added to the definition of prescription in CPL section 178.00(2), a definition of "prescription form" was added, and both phrases were inserted as needed in .other parts of the bill. The amendments in the B-print change the knowledge and intent language in new PL sections 179.05 and 179.10 (changing "reasonable grounds to know" to "actual knowledge") and new PL 219,10 (adding intent to sell to the existing language that requires knowing possession).

Justification

There has been an exploding black market in non-controlled substance prescription medications. Non-controlled substance prescription medications include AIDS medication, asthma medication, and anti-psychotic medication, among many others. These medications, 11sually the most expensive, are most often paid for with Medicaid dollars and sold on the street for a fraction of their actual value. The purchasers of these medications bring the medications to a stash house where they are collected and re-sold back to unscrupulous pharmacies or shipped overseas. This has many severe consequences:

o Sick patients are not taking their medications and instead are selling them on the street for cash.

o Unsuspecting patients can purchase drugs that have been illegally re-sold to the pharmacy without any quality control over the storage or maintenance of the medication.

o Medicaid is paying huge sums for medications that are dispensed under fraudulent circumstances. For example, an unscrupulous pharmacy can charge Medicaid for a medicine that it has purchased at a significantly lower price through the black market. Most likely Medicaid has already paid for this medicine on an earlier occasion when it was dispensed to a sick person who subsequently sold the medicine on the street.

The current law did not contemplate the large-scale illegal market in these drugs. As a result, there is either no penalty or insufficient penalties for the following conduct:

o repeatedly purchasing non-controlled substance prescription medications by someone with no medical need for the medication (the people who are buying up medications for the black market);

o possession of large quantities of non-controlled substance prescription medications by someone with no lawful basis for the prescription (the people who have the stash houses for the black market medicine);

o the writing of fraudulent prescriptions by physicians to "patients" with no medical need for the medication; and

o the purchasing or dispensing of medications by pharmacists who have obtained the medication through the black market,

Legislative history

New bill.

Fiscal implications

To be determined.

Effective date

This act shall take effect 90 days after becoming a law.