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ENGROSSED HOUSE AMENDME NT
TO
ENGROSSED SENATE BILL NO . 718 By: McCortney of the Senate
and
Mize of the House
An Act relating to allopathic medicine; amending 59
O.S. 2011, Section 492, as amended by Section 1,
Chapter 40, O.S.L. 2016 (59 O.S. Supp. 2020, Section
492), which relates to definition of the practice of
medicine; adding certain exclusion; and providing an
effective date.
AUTHORS: Remove Representative Mize as principal House author and
substitute with Representative McEntire
AMENDMENT NO. 1. Delete the title, enacting clause and entire bill
and replace with:
"An Act relating to pharmacy; amending 59 O.S. 2011,
Section 353.18, as last amended by Section 4,
Chapter 285, O.S.L. 2016 (59 O.S. Supp. 2020,
Section 353.18), whic h relates to the sale,
manufacturing or packaging of dangerous drugs;
providing licensure exception; providing exception
to pharmacy requirements for facilities distributing
or dispensing dialysate or devices necessary for
peritoneal dialysis; amending 59 O.S. 2011, Section
353.24, as last amended by Section 6, Chapter 106,
O.S.L. 2018 (59 O.S. Supp. 2020, Section 353.24),
which relates to unlawful acts; providing certain
construction; providing certification exception; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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SECTION 1. AMENDATORY 59 O.S. 2011, Section 353.18, as
last amended by Section 4, Chapter 285, O.S.L. 2016 (59 O.S. Supp.
2020, Section 353.18), is amended to read as follows:
Section 353.18 A. 1. It shall be unlawful for any person,
including, but not limited to, Internet, website or online
pharmacies, to sell at retail or to offer for sale, dangerous drugs,
medicines, chemicals or poisons for the treatment of disease,
excluding agricultural chemicals and drugs, or to accept
prescriptions for same, without first procuring a license from the
State Board of Pharmacy. This licensure requirement applies whether
such sale, offer for sale or acceptance of prescriptions occurs in
this state, or such sale, offer for sale, or acceptance of
prescription prescriptions occurs out of state and the dangerous
drug, medicine, chemical or poison is to be delivered, distributed
or dispensed to patients or customers in this state. This licensure
requirement shall not apply to the distribution or dispensing of
dialysate or peritoneal dialysis devices to patients with end -stage
renal disease (ESRD) consistent with subsection F of this section.
2. A pharmacy license shall be issued to such person a s the
Board shall deem qualified upon evidence satisfactory to the Board
that:
a. the place for which the license is sought will be
conducted in full compliance with the law and the
rules of the Board,
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b. the location and physical characteristics of the pl ace
are reasonably consistent with the maintenance of
professional surroundings and constitute no known
danger to the public health and safety,
c. the place will be under the management and control of
a licensed pharmacist or pharmacist -in-charge who
shall be licensed as a pharmacist in Oklahoma, and
d. a licensed pharmacist shall be present and on duty at
all business hours; provided, however, the provisions
of this subparagraph shall not apply to hospital drug
rooms.
3. a. An application for an initial or renewal license
issued pursuant to the provisions of this subsection
shall:
(1) be submitted to the Board in writing,
(2) contain the name or names of persons owning the
pharmacy, and
(3) provide other such information deemed relevant by
the Board.
b. An application for an initial or renewal license shall
be accompanied by a licensing fee not to exceed Three
Hundred Dollars ($300.00) for each period of one (1)
year. Prior to opening for business, all applicants
for an initial license or permit shall be in spected.
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An initial licensure applicant shall pay an inspection
fee not to exceed Two Hundred Dollars ($200.00);
provided, however, that no charge shall be made for
the licensing of any Federal Veterans Hospital in the
State of Oklahoma. Non -resident pharmacies shall
reimburse the Board for any actual expenses incurred
for inspections.
c. A license issued pursuant to the provisions of this
subsection shall be valid for a period set by the
Board and shall contain the name of the licensee and
the address of the place at which such business shall
be conducted.
4. A retail pharmacy that prepares sterile drugs shall obtain a
pharmacy license, and shall also obtain a sterile compounding permit
at a fee set by the Board, not to exceed Seventy -five Dollars
($75.00). Such pharmacy shall meet requirements set by the Board by
rule for sterile compounding permits.
5. An outsourcing facility desiring to dispense prescriptions
to patients must additionally license and meet the requirements of a
pharmacy.
B. 1. It shall be unlawful for any person to manufacture,
repackage, distribute, outsource, warehouse or be a third -party
logistics provider of any dangerous drugs, medicines, medical gases,
chemicals, or poisons for the treatment of disease, excluding
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agricultural chemicals, without first procuring a license from the
Board. It shall be unlawful to sell or offer for sale at retail or
wholesale dangerous drugs, medicines, medical gases, chemicals or
poisons without first procuring a license from the Board. This
licensure requirement shall apply when the manufacturing,
repackaging, distributing, outsourcing, warehousing, or provision of
third-party logistics occurs in this state or out of state for
delivery, distribution, or dispensing to patients or customers in
this state.
2. A license shall be issued to such person as the Board shall
deem qualified upon satisfactory evidence to the Board that:
a. the place for which the license is sought will be
conducted in full compliance with the laws of this
state and the admini strative rules of the Board,
b. the location and physical characteristics of the place
of business are reasonably consistent with the
maintenance of professional surroundings and
constitute no known danger to public health and
safety,
c. the place shall be under the management and control of
such persons as may be approved by the Board after a
review and determination of the persons’
qualifications, and
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d. an outsourcing facility shall designate in writing on
a Board-approved form a person to serve as the
pharmacist-in-charge who is a pharmacist licensed by
the Board.
3. a. An application for an initial or renewal license
issued pursuant to the provisions of this subsection
shall:
(1) be submitted to the Board in writing,
(2) contain the name or names of the owners or the
applicants, and
(3) provide such other information deemed relevant by
the Board.
b. An application for an initial or renewal license shall
be accompanied by a licensing fee not to exceed Three
Hundred Dollars ($300.00) for each period of one (1)
year. Prior to opening for business, all applicants
for initial or renewal license shall be inspected. An
initial licensure applicant shall pay an inspection
fee not to exceed Two Hundred Dollars ($200.00). Non -
resident applicants shall reimburse t he Board for any
actual expenses incurred for inspections.
c. A license issued pursuant to the provisions of this
subsection shall contain the name of the licensee and
the address of the place at which such business shall
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be conducted and shall be valid fo r a period of time
set by the Board.
C. A licensee or permit holder who, pursuant to the provisions
of this section, fails to complete an application for a renewal
license or permit by the fifteenth day after the expiration of the
license or permit shall pay a late fee to be fixed by the Board.
D. 1. The Board shall promulgate rules regarding the issuance
and renewal of licenses and permits pursuant to the Oklahoma
Pharmacy Act which shall include, but need not be limited to ,
provisions for new or renewa l application requirements for its
licensees and permit holders. Requirements for new and renewal
applications may include, but need not be limited to, the following:
a. type of ownership, whether individual, partnership,
limited liability company or corp oration,
b. names and addresses of principal owners or officers
and their Social Security numbers, including
applicant’s full name, all trade or business names
used, full business address, telephone numbers, and
email addresses,
c. names of designated repr esentatives and facility
managers and their Social Security numbers and dates
of birth,
d. evidence of a criminal background check and
fingerprinting of the applicant, if a person, and all
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of the applicant’s designated representatives and
facility managers,
e. a copy of the license from the applicant’s home state,
and if applicable, from the federal government,
f. bond requirements, and
g. any other information deemed by the Board to be
necessary to protect the public health and safety.
2. The Board shall be authorized to use an outside agency, such
as the National Association of Boards of Pharmacy (NABP) or the
Verified-Accredited Wholesale Distributors (VAWD), to accredit
wholesale distributors and repackagers.
E. The Oklahoma Pharmacy Act shall not be c onstrued to prevent
the sale of nonprescription drugs in original manufacturer packages
by any merchant or dealer.
F. The Oklahoma Pharmacy Act shall not be construed to apply to
a facility engaged in the distribution or dispensing to patients of
dialysate or peritoneal dialysis devices necessary to perform home
peritoneal dialysis, provided the following criteria are met:
1. The dialysate is comprised of dextrose or icodextrin;
2. The dialysate or peritoneal dialysis devices are approved or
cleared by the United States Food and Drug Administration;
3. The dialysate or peritoneal dialysis devices are lawfully
held by a manufacturer, or the manufacturer’s agent, who is properly
licensed by the Board as a manufacturer, wholesaler or distributor;
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4. The dialysate or peritoneal dialysis devices are held and
delivered in their original, sealed packaging from the manufacturing
facility;
5. The dialysate or peritoneal dialysis devices are delivered
only upon receipt of a physician’s prescription by a licensed
pharmacy, and the transmittal of an order from the licensed pharmacy
to the manufacturer or the manufacturer’s agent; and
6. The manufacturer or agent of the manufacturer delivers the
dialysate or peritoneal dialysis devices directly to:
a. a patient with ESRD or the patient’s designee for the
patient’s self-administration of the dialysis therapy,
or
b. a health care provider or institution for
administration or delivery of the dialysis therapy to
the patient with ESRD.
SECTION 2. AMENDATORY 59 O.S. 2011, Section 353.24, as
last amended by Section 6, Chapter 106, O.S.L. 2018 (59 O.S. Supp.
2020, Section 353.24), is amended to read as follows:
Section 353.24 A. It shall be unlawful for any licensee or
other person to:
1. Forge or increase the quantity of drug in any prescription,
or to present a prescription bearing forged, fictitious or altered
information or to possess any drug secured by such forged,
fictitious or altered prescription;
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2. Sell, offer for sale, barter or give a way any unused
quantity of drugs obtained by prescription, except through a program
pursuant to the Utilization of Unused Prescription Medications Act
or as otherwise provided by the State Board of Pharmacy;
3. Sell, offer for sale, barter or give away an y drugs damaged
by fire, water, or other causes without first obtaining the written
approval of the Board or the State Department of Health;
4. No person, firm or business establishment shall offer to the
public, in any manner, their services as a “pick -up station” or
intermediary for the purpose of having prescriptions filled or
delivered, whether for profit or gratuitously. Nor may the owner of
any pharmacy or drug store authorize any person, firm or business
establishment to act for them in this manner with these exceptions:
a. patient-specific filled prescriptions may be delivered
or shipped to a prescriber’s clinic for pick -up by
those patients whom the prescriber has individually
determined and documented do not have a permanent or
secure mailing address,
b. patient-specific filled prescriptions for drugs which
require special handling written by a prescriber may
be delivered or shipped to the prescriber’s clinic for
administration or pick -up at the prescriber’s office,
c. patient-specific filled pres criptions, including
sterile compounded drugs, may be delivered or shipped
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to a prescriber’s clinic where they shall be
administered,
d. patient-specific filled prescriptions for patients
with End Stage Renal Disease end-stage renal disease
(ESRD) may be delivered or shipped to a prescriber’s
clinic for administration or final delivery to the
patient,
e. patient-specific filled prescriptions for
radiopharmaceuticals may be delivered or shipped to a
prescriber’s clinic for administration or pick -up, or
f. patient-specific filled prescriptions may be delivered
or shipped by an Indian Health Services (IHS) or
federally recognized tribal health organization
operating under the IHS in the delivery of the
prescriptions to a pharmacy operated by the IHS or a
federally recognized tribal health organization for
pick-up by an IHS or tribal patient.
However, nothing in this paragraph shall prevent a pharmacist or
an employee of the pharmacy from personally receiving a prescription
or delivering a legally filled prescrip tion to a residence, office
or place of employment of the patient for whom the prescription was
written. Provided further, the provisions of this paragraph shall
not apply to any Department of Mental Health and Substance Abuse
Services employee or any per son whose facility contracts with the
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Department of Mental Health and Substance Abuse Services whose
possession of any dangerous drug, as defined in Section 353.1 of
this title, is for the purpose of delivery of a mental health
consumer’s medicine to the c onsumer’s home or residence. Nothing in
this paragraph shall prevent veterinary prescription drugs from
being shipped directly from an Oklahoma licensed wholesaler or
distributor registered with the Oklahoma Board of Veterinary Medical
Examiners to a client; provided, such drugs may be dispensed only on
prescription of a licensed veterinarian and only when an existing
veterinary-client-patient relationship exists . Nothing in this
paragraph shall prevent dialysate and peritoneal dialysis devices
from being shipped directly from an Oklahoma licensed manufacturer,
wholesaler or distributor to an ESRD patient or patient’s designee,
consistent with subsection F of Section 353.18 of this title ;
5. Sell, offer for sale or barter or buy any professional
samples except through a program pursuant to the Utilization of
Unused Prescription Medications Act;
6. Refuse to permit or otherwise prevent members of the Board
or such representatives thereof from entering and inspecting any and
all places, including premises, vehicles, equipment, contents, and
records, where drugs, medicine, chemicals or poisons are stored,
sold, vended, given away, compounded, dispensed, repackaged,
transported, or manufactured;
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7. Interfere, refuse to participate in, impede or otherwise
obstruct any inspection, investigation or disciplinary proceeding
authorized by the Oklahoma Pharmacy Act;
8. Possess dangerous drugs without a valid prescription or a
valid license to possess such drugs; provided, however, this
provision shall not apply to a ny Department of Mental Health and
Substance Abuse Services employee or any person whose facility
contracts with the Department of Mental Health and Substance Abuse
Services whose possession of any dangerous drug, as defined in
Section 353.1 of this title, is for the purpose of delivery of a
mental health consumer’s medicine to the consumer’s home or
residence;
9. Fail to establish and maintain effective controls against
the diversion of drugs for any other purpose than legitimate
medical, scientific or in dustrial uses as provided by state, federal
and local law;
10. Fail to have a written drug diversion detection and
prevention policy;
11. Possess, sell, offer for sale, barter or give away any
quantity of dangerous drugs not listed as a scheduled drug pu rsuant
to Sections 2-201 through 2-212 of Title 63 of the Oklahoma Statutes
when obtained by prescription bearing forged, fictitious or altered
information.
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a. A first violation of this section shall constitute a
misdemeanor and upon conviction shall be pu nishable by
imprisonment in the county jail for a term not more
than one (1) year and a fine in an amount not more
than One Thousand Dollars ($1,000.00).
b. A second violation of this section shall constitute a
felony and upon conviction shall be punishabl e by
imprisonment in the Department of Corrections for a
term not exceeding five (5) years and a fine in an
amount not more than Two Thousand Dollars ($2,000.00);
12. Violate a Board order or agreed order;
13. Compromise the security of licensure examina tion materials;
or
14. Fail to notify the Board, in writing, within ten (10) days
of a licensee or permit holder’s address change.
B. 1. It shall be unlawful for any person other than a
licensed pharmacist or physician to certify a prescription before
delivery to the patient or the patient’s representative or
caregiver. Dialysate and peritoneal dialysis devices supplied
pursuant to the provisions of subsection F of Section 353.18 of this
title shall not be required to be certified by a pharmacist prior to
being supplied by a manufacturer, wholesaler or distributor.
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2. It shall be unlawful for any person to institute or manage a
pharmacy unless such person is a licensed pharmacist or has placed a
licensed pharmacist in charge of such pharmacy.
3. No licensed pharmacist shall manage, supervise or be in
charge of more than one pharmacy.
4. No pharmacist being requested to sell, furnish or compound
any drug, medicine, chemical or other pharmaceutical preparation, by
prescription or otherwise, shall substit ute or cause to be
substituted for it, without authority of the prescriber or
purchaser, any like drug, medicine, chemical or pharmaceutical
preparation.
5. No pharmacy, pharmacist -in-charge or other person shall
permit the practice of pharmacy except by a licensed pharmacist or
assistant pharmacist.
6. No person shall subvert the authority of the pharmacist -in-
charge of the pharmacy by impeding the management of the
prescription department to act in compliance with federal and state
law.
C. 1. It shall be unlawful for a pharmacy to resell dangerous
drugs to any wholesale distributor.
2. It shall be unlawful for a wholesale distributor to purchase
drugs from a pharmacy.
SECTION 3. This act shall become effective November 1, 2021. "
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Passed the House of Representatives the 21st day of April, 2021.
Presiding Officer of the House of
Representatives
Passed the Senate the ____ day of _____, 2021.
Presiding Officer of the Senate
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ENGROSSED SENATE
BILL NO. 718 By: McCortney of the Senate
and
Mize of the House
An Act relating to allopathic medicine; amending 59
O.S. 2011, Section 492, as amended by Section 1,
Chapter 40, O.S.L. 2016 (59 O.S. Supp. 2020, Section
492), which relates to definition of the practice of
medicine; adding certain exclusion; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 4. AMENDATORY 59 O.S. 2011, Section 492, as
amended by Section 1, Chapter 40, O.S.L. 2016 (59 O.S. Sup p. 2020,
Section 492), is amended to read as follows:
Section 492. A. Every person shall be regarded as practicing
allopathic medicine within the meaning and provisions of this act
the Oklahoma Allopathic Medical and Surgical Licensure and
Supervision Act, who shall append to his or her name the letters
“M.D.”, “Physician” or any other title, letters or designation which
represent that such person is a physician, or who shall for a fee or
any form of compensation diagnose and/or treat disease, injury or
deformity of persons in this state by any allopathic legend drugs,
surgery, manual, or mechanical treatment unless otherwise authorized
by law.
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B. A hospital or related institution as such terms are defined
in Section 1-701 of Title 63 of the Oklahoma Stat utes, which has the
principal purpose or function of providing hospital or medical care,
including but not limited to any corporation, association, trust , or
other organization organized and operated for such purpose, may
employ one or more persons who are duly licensed to practice
medicine in this state without being regarded as itself practicing
medicine within the meaning and provisions of this section. The
employment by the hospital or related institution of any person who
is duly licensed to practice medicine in this state shall not, in
and of itself, be considered as an act of unprofessional conduct by
the person so employed. Nothing provided herein shall eliminate,
limit, or restrict the liability for any act or failure to act of
any hospital, any hospital’s employees, or persons duly licensed to
practice medicine.
C. The definition of the practice of medicine and surgery shall
include, but is not limited to:
1. Advertising, holding out to the public , or representing in
any manner that one is autho rized to practice medicine and surgery
in this state;
2. Any offer or attempt to prescribe, order, give, or
administer any drug or medicine and surgery for the use of any other
person, except as otherwise authorized by law;
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3. a. any offer or attempt, exc ept as otherwise authorized
by law, to prevent, diagnose, correct , or treat in any
manner or by any means, methods, devises , or
instrumentalities except for manual manipulation any
disease, illness, pain, wound, fracture, infirmity,
defect, or abnormal physical or mental condition of
any person, including the management of pregnancy and
parturition, except as otherwise authorized by law,
b. except as provided in subsection D of this section,
performance by a person within or outside of this
state, through an ongoing regular arrangement, of
diagnostic or treatment services , including, but not
limited to, stroke prevention and treatment, through
electronic communications for any patient whose
condition is being diagnosed or treated within this
state by a physician duly licensed and practicing in
this state. A person who performs any of the
functions covered by this subparagraph submits himself
or herself to the jurisdiction of the courts of this
state for the purposes of any cause of action
resulting from the functions performed, and
c. nothing in the Oklahoma Allopathic Medical and
Surgical Licensure and Supervision Act shall be
construed to affect or give jurisdiction to the Board
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over any person other than medical doctors or persons
holding themselves out as medical doctors;
4. Any offer or attempt to perform any surgical operation upon
any person, except as otherwise authorized by law; and
5. The use of the title Doctor of Medicine, Physician, Surgeon,
Physician and Surgeon, Dr., M.D. or any combination th ereof in the
conduct of any occupation or profession pertaining to the
prevention, diagnosis, or treatment of human disease or condition
unless, where appropriate, such a designation additionally contains
the description of another branch of the healing ar ts for which one
holds a valid license in this state.
D. The practice of medicine and surgery, as defined in this
section, shall not include:
1. A student while engaged in training in a medical school
approved by the Board or while engaged in graduate me dical training
under the supervision of the medical staff of a hospital or other
health care facility approved by the state medical board for such
training, except that a student engaged in graduate medical training
shall hold a license issued by the Board for such training;
2. Any person who provides medical treatment in cases of
emergency where no fee or other consideration is contemplated,
charged or received;
3. A commissioned medical officer of the armed forces of the
United States or medical officer of the United States Public Health
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Service or the Department of Veterans Affairs of the United States
in the discharge of official duties and/or within federally
controlled facilities; and provided that such person shall be fully
licensed to practice medi cine and surgery in one or more
jurisdictions of the United States; provided further that such
person who holds a medical license in this state shall be subject to
the provisions of the Oklahoma Allopathic Medical and Surgical
Licensure and Supervision Act ;
4. Any person licensed under any other act when properly
practicing in the healing art for which that person is duly
licensed;
5. The practice of those who endeavor to prevent or cure
disease or suffering by spiritual means or prayer;
6. Any person administering a domestic or family remedy to a
member of such person’s own family;
7. Any person licensed to practice medicine and surgery in
another state or territory of the United States who renders
emergency medical treatment or briefly provides critica l medical
service at the specific lawful direction of a medical institution or
federal agency that assumes full responsibility for that treatment
or service and is approved by the Board;
8. Any person who is licensed to practice medicine and surgery
in another state or territory of the United States whose sole
purpose and activity is limited to brief actual consultation with a
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specific physician who is licensed to practice medicine and surgery
by the Board, other than a person with a special or restricted
license; or
9. Any person who is licensed to practice medicine and surgery
in another state or territory of the United States who engages in
consultation through telehealth with a patient physically located in
this state for the sole purpose of providing an expert second
opinion; or
10. The practice of any other person as licensed by appropriate
agencies of this state, provided that such duties are consistent
with the accepted standards of the person’s profession and the
person does not represent himself or herself as a Doctor of
Medicine, Physician, Surgeon, Physician and Surgeon, Dr., M.D. , or
any combination thereof.
E. Nothing in the Oklahoma Allopathic Medical and Surgical
Licensure and Supervision Act shall prohibit:
1. The service rendered by a ph ysician’s unlicensed trained
assistant, if such service is rendered under the supervision and
control of a licensed physician pursuant to Board rules, provided
such rules are not in conflict with the provisions of any other
healing arts licensure act or ru les promulgated pursuant to such
act; or
2. The service of any other person duly licensed or certified
by the state to practice the healing arts.
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F. Nothing in the Oklahoma Allopathic Medical and Surgical
Licensure and Supervision Act shall prohibit serv ices rendered by
any person not licensed by the Board and practicing any
nonallopathic healing practice.
G. Nothing in the Oklahoma Allopathic Medical and Surgical
Licensure and Supervision Act shall be construed as to require a
physician to secure a Main tenance of Certification (MOC) as a
condition of licensure, reimbursement, employment or admitting
privileges at a hospital in this state. For the purposes of this
subsection, “Maintenance of Certification (MOC)” shall mean a
continuing education program measuring core competencies in the
practice of medicine and surgery and approved by a nationally -
recognized accrediting organization.
SECTION 5. This act shall become effective November 1, 2021.
Passed the Senate the 10th day of March, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2021.
Presiding Officer of the House
of Representatives
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