Revision: Feb. 9, 2021, 10:50 a.m.
SB 149-FN - AS INTRODUCED
2021 SESSION
21-1074
10/04
SENATE BILL 149-FN
AN ACT adopting omnibus legislation on health and human services.
SPONSORS: Sen. Sherman, Dist 24
COMMITTEE: Health and Human Services
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ANALYSIS
This bill adopts legislation relative to:
I. Nursing home standards.
II. Clarifying Medicaid spend-down requirements and requiring a report to the oversight committee on health and human services.
III. Establishing a harm reduction and overdose prevention program in the department of health and human services.
IV. Automated pharmacy systems.
V. Establishing a rehabilitation bed pilot program.
VI. Health facilities providing care in the declared emergency.
VII. Confidential sharing of information under the controlled drug prescription health and safety program.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
21-1074
10/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT adopting omnibus legislation on health and human services.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Sponsorship. This act consists of the following proposed legislation:
Part I. LSR 21-0208, relative to nursing home standards, sponsored by Sen. Ward, Prime/Dist 8.
Part II. LSR 21-0427, clarifying Medicaid spend-down requirements and requiring a report to the oversight committee on health and human services, sponsored by Sen. Rosenwald, Prime/Dist 13; Sen. Hennessey, Dist 1; Sen. Whitley, Dist 15; Sen. Sherman, Dist 24; Sen. Bradley, Dist 3; Rep. Guthrie, Rock. 13; Rep. McMahon, Rock. 7; Rep. Marsh, Carr. 8; Rep. Knirk, Carr. 3; Rep. Mullen, Hills. 7.
Part III. LSR 21-0837, establishing a harm reduction and overdose prevention program in the department of health and human services, sponsored by Sen. Watters, Prime/Dist 4; Sen. Sherman, Dist 24; Sen. Whitley, Dist 15; Sen. D'Allesandro, Dist 20; Rep. Amanda Bouldin, Hills 12; Rep. Woods, Merr. 23; Rep. Conley, Straf. 13.
Part IV. LSR 21-0936, relative to automated pharmacy systems, sponsored by Sen. Carson, Prime/Dist 14.
Part V. LSR 21-0997, establishing a rehabilitation bed pilot program, sponsored by Sen. Bradley, Prime/Dist 3.
Part VI. LSR 21-1006, relative to health facilities providing care in the declared emergency, sponsored by Sen. Gray, Prime/Dist 6.
Part VII. LSR 21-0833, relative to confidential sharing of information under the controlled drug prescription health and safety program, sponsored by Sen. Giuda, Prime/Dist 2; Sen. Rosenwald, Dist 13; Sen. Carson, Dist 14; Sen. Prentiss, Dist 5; Sen. D'Allesandro, Dist 20; Sen. Soucy, Dist 18; Rep. M. Pearson, Rock. 34; Rep. Marsh, Carr. 8; Rep. Merchant, Sull. 4.
2 Legislation Enacted. The general court hereby enacts the following legislation:
PART I
Relative to nursing home standards.
1 New Section; Nursing Home Facilities. Amend RSA 151 by inserting after section 12-b the following new section:
151:12-c Placement in Nursing Home Facilities. A resident of New Hampshire who receives Medicaid and who requires nursing home care shall not be placed in any out-of-state facility which does not meet the requirements of this chapter and other standards of care under New Hampshire
2 Effective Date. Part I of this act shall take effect January 1, 2022.
PART II
Clarifying Medicaid spend-down requirements
and requiring a report to the oversight committee on health and human services.
1 New Section; Spend-Down Requirements for Medical Expenses. Amend RSA 167 by inserting after section 4-d the following new section:
167:4-e Spend-down Requirements for Medical Expenses. For the purposes of off-setting the Medicaid spend-down requirements, mental health expenses shall be included as medical expenses.
2 Report to Oversight Committee on Health and Human Services.
I. The department of health and human services shall submit an interim report on or before October 1, 2021, to the oversight committee on health and human services, established pursuant to RSA 126-A:13, relative to actions taken to ensure the uniform application of spend-down requirements. The report shall include a description of how spend-down requirements were addressed in remedial staff training programs, updates to the policy manual, and updates to the brochure and any other department publications.
II. The department shall submit a final report by October 1, 2022, on the application of spend-down requirements. The report shall include data indicating how spend-down requirements have been applied since the interim report was filed.
3 Effective date. Part II of this act shall take effect upon its passage.
PART III
Establishing a harm reduction and overdose prevention program
in the department of health and human services.
1 Findings. The legislature finds and declares all of the following:
I. Overdose deaths in New Hampshire are an urgent public health crisis. For many years, overdose has been the leading cause of accidental death in the United States and in New Hampshire.
II. Harm reduction and overdose prevention programs (OPPs) are an evidence-based harm reduction strategy that allow individuals to consume drugs in a hygienic environment under the supervision of trained staff, who are able to intervene if the patient overdoses. OPPs also provide sterile consumption equipment and offer general medical advice and referrals to drug treatment and other community social services.
III. There are approximately 165 overdose prevention programs operating in 10 countries around the world, and numerous peer-reviewed studies have confirmed that those programs are effective in reducing overdose deaths and HIV transmission, and in increasing access to counseling, treatment, and other risk reduction services. Research has also demonstrated that those programs decrease use of emergency medical services, reduce public drug use, reduce syringe debris, and do not increase crime or drug use.
IV. An analysis published in the Journal of Drug Issues in 2016, OPPs in New Hampshire would save the state and municipalities substantial funds by reducing other costs due to opioid use and overdose.
V. An increase in overdose deaths was observed nationwide in 2020 according to the Office of National Drug Control Policy, rising 16.6 percent, based on a comparison of January to April, inclusive, of 2019 with the same time frame of 2020.
VI. As demands for reform of the criminal legal system reverberate around the country, OPPs offer an alternative framework for addressing both drug use as well as the enforcement of drug laws. OPPs bring people inside to a safe and therapeutic space, instead of leaving them vulnerable to police intervention, arrest, and incarceration.
VII. It is the intent of the legislature to promote the health and safety of communities by evaluating the health impacts of OPPs. It is the intent of the legislature to prevent fatal and nonfatal drug overdoses, reduce drug use by providing a pathway to drug treatment, as well as medical and social services for high-risk drug users, many of whom are homeless or uninsured or very low income, prevent the transmission of HIV and hepatitis C, reduce nuisance and public safety problems related to public use of controlled substances, reduce emergency room use and hospital utilization related to drug use, reserving precious space, including intensive care beds, for treatment of COVID-19, and other life-threatening conditions.
VIII. Further, it is the intent of the legislature that OPPs should be evaluated in New Hampshire municipalities that authorize them, as OPPs show great promise to save lives, enhance public safety, improve access to drug treatment, medical care, and related services, reduce emergency department and hospital utilization related to drug overdose, and reduce the human, social, and financial costs of epidemics of drug misuse, homelessness, and COVID-19.
2 New Subdivision; Harm Reduction and Overdose Prevention Programs. Amend RSA 318-B by inserting after section 45 the following new subdivision:
Harm Reduction and Overdose Prevention Programs
318-B:45-a Harm Reduction and Overdose Prevention Programs
I.(a) Notwithstanding any other law, a New Hampshire municipality may approve entities within its jurisdiction to establish and operate overdose prevention programs for persons 18 years of age or older that satisfy the requirements set forth in paragraph IV.
II. Prior to approving an entity within its jurisdiction pursuant to paragraph I, a municipality shall provide local law enforcement officials, local public health officials, and the public with an opportunity to comment in a public meeting. The notice of the meeting to the public shall be sufficient to ensure adequate participation in the meeting by the public. The meeting shall be noticed in accordance with all state laws and local ordinances, and as local officials deem appropriate.
III.(a) The following entities, if self-funded, may operate an OPP upon approval of the municipality’s governing body in New Hampshire to prevent the transmission of disease and reduce morbidity and mortality among individuals who inject drugs:
(1) Federally qualified health centers.
(2) Community health centers.
(3) Public health networks.
(4) AIDS service organizations.
(5) Substance misuse support or treatment organizations.
(6) Community based organizations.
(b) The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, further defining the entities which may operate an overdose prevention program.
IV. Any entity operating an OPP in New Hampshire shall:
(a) Provide a hygienic space supervised by health care professionals where people who use drugs can consume pre-obtained drugs. For purposes of this paragraph, “health care professional” includes, but is not limited to, a physician, physician assistant, nurse practitioner, licensed vocational nurse, registered nurse, psychiatrist, psychologist, licensed clinical social worker, licensed professional clinical counselor, mental health provider, social service provider, or substance use disorder provider, trained in overdose recognition and reversal.
(b) Provide sterile consumption supplies, collect used hypodermic needles and syringes, and provide secure hypodermic needle and syringe disposal services.
(d) Administer first aid, if needed, monitor participants for potential overdose, and provide treatment as necessary to prevent fatal overdose.
(e) Provide referral and linkage to HIV, viral hepatitis, and substance use disorder prevention, care, and treatment services, as appropriate.
(f) Coordinate and collaborate with other local agencies, organizations, and providers involved in comprehensive prevention programs for people who inject drugs to minimize duplication of effort.
(g) Attempt to be a part of a comprehensive service program that may include, as appropriate:
(1) Providing sterile needles, syringes, and other drug preparation equipment and disposal services.
(2) Educating and counseling to reduce sexual, injection, and overdose risks.
(3) Providing condoms to reduce risk of sexual transmission of viral hepatitis, HIV, or other STDs.
(4) Screening for HIV, viral hepatitis, STDs, and tuberculosis.
(5) Providing naloxone to reverse opioid overdoses.
(6) Providing referral and linkage to HIV, viral hepatitis, STD and tuberculosis prevention, treatment, and care services, including antiretroviral therapy for hepatitis C virus (HCV) and HIV, pre-exposure prophylaxis (PrEP), post-exposure prophylaxis (PEP), prevention of mother-to-child transmission, and partner services.
(7) Providing referral and linkage to hepatitis A virus (HAV) and hepatitis B virus (HBV) vaccination.
(8) Providing referral and linkage to and provision of substance use disorder treatment including medication assisted treatment for opioid use disorder which combines drug therapy such as methadone, buprenorphine, or naltrexone with counseling and behavioral therapy.
(9) Providing referral to medical care, mental health services, and other support services.
(h) Post its address, phone number, program contact information, if appropriate, hours of operation, and services offered on its Internet website.
(i) Provide reasonable security of the program site.
(j) Establish operating procedures for the program, made available to the public either through an Internet website or upon request, that are publicly noticed, including, but not limited to, standard hours of operation, a minimum number of personnel required to be on site during those hours of operation, the licensing and training standards for staff present, an established maximum number of individuals who can be served at one time, and an established relationship with the nearest emergency department of a general acute care hospital, as well as eligibility criteria for program participants.
(k) Train staff members to deliver services offered by the program.
(l) Establish a good neighbor policy that facilitates communication from and to local businesses and residences, to the extent they exist, to address any neighborhood concerns and complaints.
(m) Establish a policy for informing local government officials and neighbors about the approved entity’s complaint procedures, and the contact number of the director, manager, or operator of the approved entity.
(n) Register with the department of health and human services and confirm registration annually on or before November 1 of each subsequent year; provided however, the registration process shall be limited to notification to the department for data collection purposes only.
(o) Report quarterly to the department, which report shall include the following information regarding the program's activities:
(1) The number of program participants.
(2) Aggregate information regarding the characteristics of program participants.
(3) The number of hypodermic needles and syringes distributed for use on site.
(4) The number of overdoses experienced and the number of overdoses reversed on site.
(5) The number of persons referred to substance misuse treatment/services.
(6) The number of individuals directly and formally referred to other services and the type of service.
V. Notwithstanding any other law, a person or entity, including, but not limited to, property owners, managers, employees, volunteers, clients or participants, and employees of the New Hampshire municipalities, state agencies, hospitals, or overdose prevention programs, acting in the course and scope of employment, shall not be arrested, charged, or prosecuted under RSA 318-B:2 for possession of controlled substances, possession of drug paraphernalia, or allowing drug use on premises, including for attempt, aiding and abetting, or conspiracy to commit a violation of any of those offenses, or otherwise be penalized solely for actions, conduct, or omissions on the site of a harm reduction and overdose prevention program approved under this section, or for conduct relating to the approval of an entity to operate an OPP, or the inspection, licensing, or other regulation of an OPP approved under this section.
VI. Notwithstanding any other law, a person or entity, including, but not limited to, property owners, managers, employees, volunteers, clients or participants, and employees of overdose prevention programs acting in the course and scope of employment shall not be subject to civil, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, or penalty or other liability, or have their property subject to forfeiture, solely for actions, conduct, or omissions in compliance with an OPP approved under this section or for conduct relating to the approval of an entity to operate an OPP, or the inspection, licensing, or other regulation of an OPP approved pursuant to this section.
VII. Nothing in this section shall be construed to prohibit the department of health and human services from administering and/or disbursing federal or other funds to harm reduction and overdose prevention programs authorized under this section. The use of state general funds shall be prohibited unless otherwise appropriated by the general court.
VIII. No overdose prevention program shall be located within a drug-free school zone as defined in RSA 193-B:1, II. Exceptions to this prohibition may be granted by the applicable district school board when a request is initiated by a overdose prevention program administrator.
3 Syringe Service Programs; reference Added. Amend RSA 318-B:44 to read as follows:
318-B:44 Syringe Service Programs; Affirmative Defense. It is an affirmative defense, as provided in RSA 626:7, to prosecution for possession of a hypodermic syringe or needle that the item was obtained through participation in a syringe service program or an overdose prevention program under RSA 318-B:45-a. Nothing in this section shall be construed as an affirmative defense for any offense other than as set forth under RSA 318-B:26, [II(f)] II(e).
4 Effective Date. Part III of this act shall take effect 60 days after its passage.
PART IV
Relative to automated pharmacy systems.
1 Pharmacies; Definitions; Automated Pharmacy System. Amend RSA 318:1, XXII to read as follows:
XXII. "Automated pharmacy system" means mechanical systems that perform operations or activities, other than compounding or administration, relative to the storage, packaging, dispensing, [or] distribution, counting, labeling, and delivery of medications, and which collects, controls, and maintains all transaction information.
2 New Section; Pharmacies; Automated Pharmacy Systems. Amend RSA 318 by inserting after section 42 the following new section:
318:42-a Automated Pharmacy Systems.
I. In this section:
(a) “Provider pharmacy” means a pharmacy that provides pharmacy services by using an automated pharmacy system at a remote site.
(b) “Remote site” means a long term care facility, hospice, or state or county correctional institution, that is not located at the same location as the provider pharmacy, at which pharmacy services are provided using an automated pharmacy system.
II.(a) A provider pharmacy may provide pharmacy services to a long term care facility, hospice, or state or county correctional institution through the use of an automated pharmacy system.
(b) An automated pharmacy system shall only be used to provide pharmacy services to an inpatient or a resident of the remote site.
(c) Supervision of the automated pharmacy system shall be the responsibility of a licensed pharmacist employed by the provider pharmacy.
(d) Every medicinal drug stored in the automated pharmacy system shall be owned by the provider pharmacy.
(e) An automated pharmacy system shall be under the supervision of a pharmacist employed by the provider pharmacy. The pharmacist need not be physically present at the remote site if the system is supervised electronically.
(f) A provider pharmacy shall have policies and procedures to ensure adequate security.
III.(a) The pharmacist shall ensure that the automated pharmacy system complies with state and federal laws relating to the regulation of controlled substances, for each automated pharmacy system that contains a controlled substance.
(b) The pharmacist shall ensure that the use of an automated pharmacy system does not compromise patient confidentiality.
(c) The pharmacist or a designee shall:
(1) Authorize or deny access to the data from an automated pharmacy system or to a drug stored inside the automated pharmacy system.
(2) Document the training of each person who has access to the data from an automated pharmacy system or to a drug stored inside the automated pharmacy system.
IV.(a) A medicinal drug stored in bulk or unit-of-use in an automated pharmacy system is part of the inventory of the provider pharmacy and is not part of the inventory of any other pharmacy permit for the facility.
(b) A medicinal drug may be removed from an automated pharmacy system for administration to a patient only after a prescription or order has been received and approved by a pharmacist at the provider pharmacy.
(c) A pharmacist at the provider pharmacy shall control all operations of the automated pharmacy system and approve release of the initial dose of a prescription or order. A subsequent dose from an approved prescription or order may be released without additional approval of a pharmacist. However, any change made in a prescription or order shall require a new approval by a pharmacist to release the drug.
(d) A pharmacist at the provider pharmacy shall comply with the patient record requirements in this chapter and in rules of the board and RSA 318-B for every medicinal drug delivered through an automated pharmacy system.
(e) If the facility where pharmacy services are being provided maintains a medication administration record that includes directions for use of the medication, a unit dose medication may be utilized if the provider pharmacy or the automated pharmacy system identifies and records the dispensing pharmacy, the prescription or order number, the name of the patient, and the name of the prescribing practitioner for each medicinal drug delivered.
(f)(1) The stocking or restocking of a medicinal drug in an automated pharmacy system at the remote site shall be completed by a pharmacist or other licensed personnel, except as provided in subparagraph (2).
(2) If the automated pharmacy system uses removable cartridges or containers to store the drug, the stocking or restocking of the cartridges or containers may occur at the provider pharmacy and be sent to the remote site to be loaded by personnel designated by the pharmacist if:
A. A pharmacist verifies the cartridge or container has been properly filled and labeled.
B. The individual cartridge or container is transported to the remote site in a secure, tamper-evident container.
C. The automated pharmacy system uses bar code verification, electronic verification, or similar process to assure that the cartridge or container is accurately loaded into the automated pharmacy system.
(g) A medicinal drug that has been removed from the automated pharmacy system shall not be replaced into the system unless a pharmacist has examined the medication, the packaging, and the labeling and determined that reuse of the medication is appropriate.
(h) Medication to be returned to the provider pharmacy’s stock shall meet the requirements in rules adopted by the board.
V.(a) If a provider pharmacy intends to store a controlled substance in an automated pharmacy system:
(1) It shall maintain a separate DEA registration for each remote site at which a controlled substance is stored.
(2) It may utilize one DEA registration to include multiple automated pharmacy systems located at a single address.
(b) A provider pharmacy shall only store a medicinal drug at a remote site within an automated pharmacy system which is locked by a mechanism that prevents access to a drug or to data by unauthorized personnel.
(c) Access to the drugs shall be limited to a pharmacist, authorized technician, or licensed advanced pharmacy technician, employed by the provider pharmacy or licensed personnel in the facility or institution who are authorized to administer medication.
(d) An automated pharmacy system that contains a controlled substance shall prohibit simultaneous access to multiple drug entities, drug strengths, or dosage forms of controlled substances.
VI.(a) The record of transactions with the automated pharmacy system shall be maintained in a readily retrievable manner.
(b) The record shall be available to the board or the board's authorized agent.
(c) The record shall include:
(1) Name or identification of the patient or resident.
(2) Name, strength and dosage form of the drug product released.
(3) Quantity of drug released.
(4) Date and time of each release of a drug.
(5) Name of provider pharmacy.
(6) Prescription number or order number.
(7) Name of prescribing practitioner.
(8) Identity of the pharmacist who approved the prescription or order.
(9) Identity of the person to whom the drug was released.
(d) A record of every transaction with the automated pharmacy system shall be maintained for 4 years.
3 Effective Date. Part IV of this act shall take effect 60 days after its passage.
PART V
Establishing a rehabilitation bed pilot program.
1 New Paragraph; Rehabilitation Bed Program. Amend RSA 151:2 by inserting after paragraph VI the following new paragraph:
VII.(a) Notwithstanding the provisions of paragraph VI, any acute care or critical access hospital shall be permitted to apply for a license to operate rehabilitation care services. Such application shall be made on or before June 30, 2023; provided, however, that the hospital shall demonstrate in advance that its geometric mean length of stay as determined by the Centers for Medicare and Medicaid Services has remained no less than 110 percent during a consecutive 6 month period in the 12 months prior to the hospital’s demonstration.
(b) Upon receipt of a hospital’s geometric mean length of stay percentage, the department within 15 days shall certify through inquiry to the Center for Medicare and Medicaid Services the accuracy of such percentage and shall inform the applicant of the results of the inquiry.
(c) Upon receipt of confirmation from the department of the geometric mean length of stay percentage, a hospital may file its license application.
(d) The initial term of the pilot program shall end June 30, 2023 and the program will automatically renew.
2 Repeal. RSA 151:2, VII, relative to the rehabilitation program, is repealed.
I. Section 2 of this part shall take effect December 31, 2024.
II. The remainder of this part shall take effect 60 days after its passage.
PART VI
Relative to health facilities providing care in the declared emergency.
1 New Section; Novel Coronavirus Disease (COVID-19) Outbreak; Health Facilities. Amend RSA 21-P by inserting after section 42 the following new section:
21-P:42-a Novel Coronavirus Disease (COVID-19) Outbreak; Health Facilities. Acute care hospitals, assisted living facilities, long-term care facilities, nursing facilities, residential care facilities, ambulatory care clinics (as defined in RSA 151, RSA 151-A, RSA 151-D, RSA 151-E and RSA 151-H), and any other similar facilities providing care to elderly or infirm patients, referred to in this section as "health facilities," and the employees, agents and volunteers of such health facilities, are deemed to have been engaged in preparing for and carrying out emergency management functions for the purposes of RSA 21-P:35 when taking actions to comply, or reasonably attempting to comply, with any executive order, agency order or rule (including but not limited to waivers from the Centers for Medicare and Medicaid Services (CMS)) both issued as blanket waivers by CMS and as requested the department of health and human services pertaining to the state of emergency declared under state or federal law in response to the Novel Coronavirus Disease (COVID-19) Outbreak. All such orders and rules are deemed to constitute orders, rules, or regulations adopted pursuant to RSA 21-P.
2 Effective Date. Part VI of this act shall take effect upon its passage.
PART VII
Relative to confidential sharing of information
under the controlled drug prescription health and safety program.
1 New Paragraph; Controlled Drug Prescription Health and Safety Program Established. Amend RSA 318-B:32 by inserting after paragraph I the following new paragraph:
I-a. The office may enter into agreements or contracts to facilitate the confidential sharing of information relating to the prescribing and dispensing of schedule II-IV controlled substances, by practitioners within the state and to establish secure connections between the program and a practitioner’s electronic health record keeping system. The electronic health record keeping system may allow for the query and retrieval of program information for display and retention in the patient’s medical information; provided that nothing in this section shall allow the electronic health record keeping system owner or license holder to perform data queries unrelated to individuals under the practitioner's care. The electronic health record keeping system owner or license holder shall be responsible for ensuring that only authorized individuals have access to program information.
2 New Paragraph; Controlled Drug Prescription Health and Safety Program; Confidentiality. Amend RSA 318-B:34 by inserting after paragraph II the following new paragraph:
II-a. A practitioner who intends to request and use information from the program about a patient shall post a sign that can be easily viewed by the public that discloses to the public that the practitioner may access and use information contained in the program. In lieu of posting a sign, the practitioner may provide such notice in written material provided to the patient.
3 Effective Date. Part VII of this act shall take effect upon its passage.
21-1074
2/8/21
SB 149-FN- FISCAL NOTE
AS INTRODUCED
AN ACT adopting omnibus legislation on health and human services
FISCAL IMPACT:
The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill, as introduced, as it is awaiting information from the Department of Health and Human Services and Office of Professional Licensure and Certification. When completed, the fiscal note will be forwarded to the Senate Clerk's Office.
AGENCIES CONTACTED:
Department of Health and Human Services and Office of Professional Licensure and Certification