[Federal Register: June 27, 2008 (Volume 73, Number 125)] [Proposed Rules] [Page 36721-36782] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr27jn08-29] [[Page 36721]] ----------------------------------------------------------------------- Part IV Department of Justice ----------------------------------------------------------------------- Drug Enforcement Administration ----------------------------------------------------------------------- 21 CFR Parts 1300, 1304, et al. Electronic Prescriptions for Controlled Substances; Proposed Rule [[Page 36722]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Parts 1300, 1304, 1306 and 1311 [Docket No. DEA-218P] RIN 1117-AA61 Electronic Prescriptions for Controlled Substances AGENCY: Drug Enforcement Administration (DEA), Department of Justice. ACTION: Notice of Proposed Rulemaking. ----------------------------------------------------------------------- SUMMARY: DEA is proposing to revise its regulations to provide practitioners with the option of writing prescriptions for controlled substances electronically. These regulations would also permit pharmacies to receive, dispense, and archive these electronic prescriptions. These proposed regulations would be an addition to, not a replacement of, the existing rules. These regulations provide pharmacies, hospitals, and practitioners with the ability to use modern technology for controlled substance prescriptions while maintaining the closed system of controls on controlled substances dispensing; additionally, the proposed regulations would reduce paperwork for DEA registrants who dispense or prescribe controlled substances and have the potential to reduce prescription forgery. The proposed regulations would also have the potential to reduce the number of prescription errors caused by illegible handwriting and misunderstood oral prescriptions. Moreover, they would help both pharmacies and hospitals to integrate prescription records into other medical records more directly, which would increase efficiency, and would reduce the amount of time patients spend waiting to have their prescriptions filled. DATES: Written comments must be postmarked, and electronic comments must be sent, on or before September 25, 2008. ADDRESSES: To ensure proper handling of comments, please reference ``Docket No. DEA-218'' on all written and electronic correspondence. Written comments sent via regular or express mail should be sent to Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODL, 8701 Morrissette Drive, Springfield, VA 22152. Comments may be directly sent to DEA electronically by sending an electronic message to dea.diversion.policy@usdoj.gov. Comments may also be sent electronically through http://www.regulations.gov using the electronic comment form provided on that site. An electronic copy of this document is also available at the http://www.regulations.gov Web site. DEA will accept electronic comments containing MS word, WordPerfect, Adobe PDF, or Excel files only. DEA will not accept any file formats other than those specifically listed here. FOR FURTHER INFORMATION CONTACT: Mark W. Caverly, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152, Telephone (202) 307-7297. SUPPLEMENTARY INFORMATION: Posting of Public Comments: Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov and in the Drug Enforcement Administration's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket. Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Drug Enforcement Administration's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph. I. Background Legal Authority DEA implements the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA) and the Controlled Substances Import and Export Act (21 U.S.C. 801- 971), as amended. DEA publishes the implementing regulations for these statutes in Title 21 of the Code of Federal Regulations (CFR), Parts 1300 to 1399. These regulations are designed to ensure an adequate supply of controlled substances for legitimate medical, scientific, research, and industrial purposes, and to deter the diversion of controlled substances to illegal purposes. The CSA mandates that DEA establish a closed system of control for manufacturing, distributing, and dispensing controlled substances. Any person who manufactures, distributes, dispenses, imports, exports, or conducts research or chemical analysis with controlled substances must register with DEA (unless exempt) and comply with the applicable requirements for the activity. Controlled Substances Controlled substances are drugs that have a potential for abuse and psychological and physical dependence; these include opiates, stimulants, depressants, hallucinogens, anabolic steroids, and drugs that are immediate precursors of these classes of substances. DEA lists controlled substances in 21 CFR part 1308. The substances are divided into five schedules: Schedule I substances have a high potential for abuse and have no accepted medical use in treatment in the United States. These substances may only be used for research, chemical analysis, or manufacture of other drugs. Schedule II-V substances have accepted medical uses and also have potential for abuse and psychological and physical dependence. Virtually all Schedule II-V controlled substances are available only under a prescription written by a practitioner licensed by the State and registered with DEA to dispense the substances. Overall, controlled substances constitute between 10 percent and 11 percent of all prescriptions written in the United States. [[Page 36723]] History The CSA and DEA's regulations were originally adopted at a time when most transactions and particularly prescriptions were done on paper. The CSA mandates that some records must be created and kept on forms that DEA provides and that many controlled substance prescriptions must be manually signed. In 1999, in response to requests from the regulated community, DEA began to examine how to revise its regulations to allow the use of electronic systems within the limits imposed by the statute and mindful that the records had to be usable in legal actions. On April 1, 2005, after extensive consultation with the regulated community, DEA published a final rule that allowed the electronic creation, signature, transmission, and retention of records of orders for Schedule I and II controlled substances, orders that prior to that time had to be created on preprinted forms that DEA issued (70 FR 16901, April 1, 2005). At the same time, DEA began to examine how to revise its rules to allow electronic prescriptions for controlled substances. In addition to complying with the mandates of the CSA, regulations on electronic prescriptions must be consistent with other statutory mandates and Federal regulations. The Electronic Signatures in Global and National Commerce Act of 2000, commonly known as E-Sign, was signed into law on June 30, 2000 (Pub. L. 106-229). It establishes the basic rules for using electronic signatures and records in commerce. E-Sign was enacted to encourage electronic commerce by giving legal effect to electronic signatures and records and to protect consumers. E-Sign provides that, with respect to any transaction in or affecting interstate or foreign commerce, a signature may not be denied legal effect solely because it is in electronic form (15 U.S.C. 7001(a)). However, E-Sign further provides that, where a statute or regulation requires retention of a record, and an electronic record is used to meet such requirement, Federal, State, and local agencies may set performance standards to ensure accuracy, record integrity, and accessibility of records (15 U.S.C. 7004(b)(3)(A)). Such performance standards may be specified in a manner that requires the implementation of a specific technology if such requirement serves an important governmental objective and is substantially related to that objective interest (Id.). In 2003, Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) (Pub. L. 108-173). Section 1860D-4(e) (codified at 42 U.S.C. 1395w-104(e)) contains the requirement that the electronic transmission of prescriptions and prescription-related information for covered Part D drugs prescribed for Part D eligible individuals comply with final uniform standards adopted by the Secretary of the Department of Health and Human Services (HHS). One of the considerations in support of this move to electronic prescriptions was the view that using electronic prescriptions in lieu of written or oral prescriptions could reduce medical errors that occur because handwriting is illegible or phoned in prescriptions are misunderstood as a result of similar sounding medication names. Another consideration is that, if prescription records are linked to other medical records, practitioners can be alerted at the time of prescribing to possible interactions with other drugs the patient is taking or allergies a patient might have. Electronic prescribing systems also can link to insurance formulary lists to inform the practitioner prior to prescribing whether a drug is covered by a patient's insurance. HHS adopted a rule on the transmission standard for electronic prescriptions in November 2005 (70 FR 67593, November 7, 2005) and revised it on June 23, 2006 (71 FR 36023). The standard focuses on the format for the transmitted information, not with the process of creating the prescription or maintaining the record at the pharmacy. HHS adopted the National Council of Prescription Drug Programs (NCPDP) SCRIPT Standard, Implementation Guide, Version 8.1. The standard specifies fields (name, date, address, etc.) and field lengths for certain transactions including issuing new prescriptions and refills. The rule applies to prescriptions issued to patients under Part D (the prescription drug program for Medicare patients). The rule does not require practitioners or pharmacies to use electronic prescriptions, but rather requires that companies that sponsor Part D coverage establish and maintain an electronic prescription program that meets the standard. The purpose of the standard is to ensure that electronic prescriptions are created and transmitted in a format that can be read by the receiving pharmacy (i.e., that the systems creating, transmitting, and receiving the prescriptions are interoperable). The rule DEA is hereby proposing has been written to be consistent with the foregoing HHS standard. However, it bears emphasis that the context in which the HHS standard was issued was not specific to controlled substances and therefore not designed to provide safeguards against the diversion of controlled substances. The responsibility for establishing regulatory safeguards against diversion of controlled substances falls upon DEA as the agency charged with administering and enforcing the CSA. Accordingly, while the rule being proposed here by DEA is designed to work in tandem with the HHS standard, its scope is necessarily distinct from the HHS standard. Prescription records and transmission are also subject to the Health Insurance Portability and Accountability Act (HIPAA), which establishes protection for health information. Any party to the creation, transmission, and storage of prescriptions must meet standards to ensure that the information is protected and not revealed to persons who are not authorized to see it. Health Plans, Health Care Clearinghouses, and covered Health Care Providers that are involved in the transmission of prescriptions must comply with HIPAA standards, which are codified at 45 CFR parts 160, 162 and 164. Because of the wide variety of healthcare providers subject to HIPAA, the requirements are general to allow the providers to adopt protections that are appropriate for their situations. For example, the security steps needed at a one-practitioner office will be very different from those needed at a large hospital system or chain pharmacy system. The DEA rule being issued here is consistent with HIPAA security guidance issued by HHS, as explained later in this document. Because both DEA and HHS are involved in addressing electronic prescriptions, they held a joint public meeting on July 11 and 12, 2006, to gather information from the regulated community (practitioners and pharmacies) as well as from the prescription and pharmacy service providers, technical experts, and Federal, State, and local law enforcement. The meeting record is available at http:// www.deadiversion.usdoj.gov/ecomm/e_rx/mtgs/july2006/index.html. Based on the meeting and on the requirements of the CSA and the other applicable provisions of law outlined above, DEA has developed this proposed rule. As the proposed rule illustrates, DEA supports the adoption of electronic prescriptions for controlled substances in a manner that will minimize the risk of diversion. In the absence of appropriate controls, allowing electronic prescriptions for controlled substances could exacerbate the already increasing problem of prescription controlled substance abuse [[Page 36724]] in the United States, as discussed further below. It is also essential that the rules governing the electronic prescribing of controlled substances do not undermine the ability of DEA, State, and local law enforcement to identify and prosecute those who engage in diversion. The remainder of this preamble for the rule is organized as follows: Section II discusses the framework of pertinent provisions of the CSA and DEA regulations to provide a context for this proposed rule. Section III describes the current requirements for controlled substance prescriptions. Section IV discusses the existing electronic prescription and pharmacy systems. Section V discusses potential vulnerabilities that need to be addressed to prevent electronic prescribing from contributing to the diversion of controlled substances. Section VI discusses alternatives considered. Section VII discusses the risk assessment DEA conducted regarding electronic prescriptions for controlled substances. Section VIII describes the proposed rule and the rationale for the requirements DEA is proposing to impose on prescription and pharmacy systems that create, process, and archive controlled substance prescriptions. Section IX provides a summary of the proposed rule requirements and their current implementation status. Section X is a section-by-section analysis of the proposed rule. Section XI describes a system for the electronic prescribing of controlled substances that DEA is proposing specifically for use by Federal health care agencies (including the United States Army, Navy, Marine Corps, Air Force, Coast Guard, Department of Veterans Affairs, Public Health Service, and Bureau of Prisons). These agencies would be permitted to use either system for controlled substances prescribing and dispensing. Section XII discusses the incorporation by reference of one standard published by the National Institute of Standards and Technology. Section XIII presents the required analyses on the economic and other impacts of the proposed rule. II. Framework of the Pertinent Provisions of the CSA and DEA Regulations In enacting the CSA, Congress sought to control the diversion of pharmaceutical controlled substances into illicit markets by establishing a ``closed system'' of drug distribution governing the legitimate handlers of controlled substances. H. Rep. No. 91-1444, reprinted in 1970 U.S.C.C.A.N. 4566, 4571-72. Under this closed system, all legitimate manufacturers, distributors, and dispensers of controlled substances must register with DEA and maintain strict accounting for all controlled substance transactions (Id.). The CSA defines ``dispense'' to include, among other things, the issuance of a prescription by a practitioner as well as the delivery of a controlled substance to a patient by a pharmacy pursuant to a prescription (21 U.S.C. 802(10)). Thus, both practitioners who prescribe controlled substances and pharmacies that fill such prescriptions must obtain a DEA registration (21 U.S.C. 822(a)(2)). The CSA definition of practitioner (21 U.S.C. 802(21)) includes, among others, physicians, dentists, veterinarians, pharmacies, and, where authorized by an appropriate State authority, physician assistants and advance practice nurses. It is important to reiterate here that DEA registers pharmacies, as opposed to pharmacists. As a rule, pharmacists themselves do not have the authority to independently prescribe controlled substances. Rather, pharmacists rely on the prescription, as written by the individual practitioner, for authority to conduct the dispensing. Under longstanding Federal law, for a prescription for a controlled substance to be valid, it must be issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice (United States v. Moore, 423 U.S. 122 (1975); 21 CFR 1306.04(a)). As the DEA regulations state: ``The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.'' (21 CFR 1306.04(a)). The CSA provides that a controlled substance in Schedule II may only be dispensed by a pharmacy pursuant to a ``written prescription,'' except in emergency situations (21 U.S.C. 829(a)). In contrast, for controlled substances in Schedules III and IV, the CSA provides that a pharmacy may dispense pursuant to a ``written or oral prescription.'' (21 U.S.C. 829(b)). Where an oral prescription is permitted by the CSA, the DEA regulations further provide that a practitioner may transmit to the pharmacy a facsimile of a written prescription in lieu of an oral prescription (21 CFR 1306.21(a)). Enforcement of the Controlled Substances Act The Controlled Substances Act is unique among criminal laws in that it stipulates acts pertaining to controlled substances that are permissible. That is, if the CSA does not explicitly permit an action pertaining to a controlled substance, then by its lack of explicit permissibility the act is prohibited. Violations of the Act can be civil or criminal in nature, which may result in administrative, civil, or criminal proceedings. Remedies under the Act can range from modification or revocation of DEA registration, to civil monetary penalties or imprisonment, depending on the nature, scope, and extent of the violation. Specifically, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, a controlled substance or to possess a controlled substance with the intent of manufacturing, distributing, or dispensing that controlled substance, except as authorized by the Controlled Substances Act (21 U.S.C. 841(a)(1)). Further, it is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, issued for a legitimate medical purpose, from a practitioner, while acting in the course of the practitioner's professional practice, or except as otherwise authorized by the CSA (21 U.S.C. 844(a)). It is unlawful for any person to knowingly or intentionally acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge (21 U.S.C. 843(a)(3)). It is unlawful for any person knowingly or intentionally to use a DEA registration number that is fictitious, revoked, suspended, expired, or issued to another person in the course of dispensing a controlled substance, or for the purpose of acquiring or obtaining a controlled substance (21 U.S.C. 843(a)(2)). Beyond these possession and dispensing requirements, it is unlawful for any person to refuse or negligently fail to make, keep, or furnish any record (including any record of dispensing) that is required by the CSA (21 U.S.C. 842(a)(5)). It is also unlawful to furnish any false or fraudulent material information in, or omit any information from, any record required to be made or kept (21 U.S.C. 843(a)(4)(A)). Within the CSA's system of controls, it is the individual practitioner (e.g., physician, dentist, veterinarian, nurse [[Page 36725]] practitioner) who issues the prescription authorizing the dispensing of the controlled substance. This prescription must be issued for a legitimate medical purpose and must be issued in the usual course of professional practice. The individual practitioner is responsible for ensuring that the prescription conforms to all legal requirements. The pharmacist, acting under the authority of the DEA-registered pharmacy, has a corresponding responsibility to ensure that the prescription is valid and meets all legal requirements. The DEA-registered pharmacy does not order the dispensing. Rather, the pharmacy, and the dispensing pharmacist, merely rely on the prescription as written by the DEA- registered individual practitioner to conduct the dispensing. Thus, a prescription is much more than the mere method of transmitting dispensing information from a practitioner to a pharmacy. The prescription serves both as a record of the practitioner's determination of the legitimate medical need for the drug to be dispensed, and as a record of the dispensing, providing the pharmacy with the legal justification and authority to dispense the medication prescribed by the practitioner. The prescription also provides a record of the actual dispensing of the controlled substance to the ultimate user (the patient) and, therefore, is critical to documenting that controlled substances held by a pharmacy have been dispensed legally. The maintenance by pharmacies of complete and accurate prescription records is an essential part of the overall CSA regulatory scheme established by Congress, wherein all those within the legitimate distribution chain must strictly account for all controlled substances on hand, as well as those received, sold, delivered, or otherwise disposed of (21 U.S.C. 827). The CSA recordkeeping requirements for prescriptions are somewhat unusual in that the practitioner is not required to maintain a record of prescriptions written; instead, the record is held only by the pharmacy. Abuse of Controlled Substances The level of control mandated by Congress for controlled substances far exceeds that for other prescription drugs commensurate with the facts that controlled substances can cause physical and psychological dependence and have historically been abused. Several studies of drug abuse patterns indicate that nonmedical use of prescription controlled substances (those in Schedules II through V) is an increasing problem even as the use of certain Schedule I substances appears to have declined somewhat in recent years. The National Survey on Drug Use and Health (NSDUH) (formerly the National Household Survey on Drug Abuse) is an annual survey of the civilian, non-institutionalized, population of the United States aged 12 or older. The survey is conducted by the Office of Applied Studies, Substance Abuse and Mental Health Services Administration, of the Department of Health and Human Services. Findings from the 2006 NSDUH were released in September 2007 and are the latest year for which information is currently available. The 2006 NSDUH \1\ estimated that 20.4 million Americans were classified with substance dependence or abuse (8.3 percent of the total population aged 12 or older). Further, the 2006 NSDUH estimated that 6.7 million persons were current users, i.e., past 30 days, of psychotherapeutic drugs--pain relievers, anti-anxiety medications, stimulants, and sedatives--taken nonmedically. This represents 2.8 percent of the population aged 12 or older. Specifically, the NSDUH estimated that 5.2 million persons used pain relievers, 1.8 million used tranquilizers, 1.2 million used stimulants, and 0.4 million used sedatives. Except for tranquilizers, these estimates are increases from the corresponding estimates for 2005. --------------------------------------------------------------------------- \1\ Substance Abuse and Mental Health Services Administration. (2007). Results From the 2006 National Survey on Drug Use and Health: National Findings (Office of Applied Studies, NSDUH Series H-32, DHHS Publication No. SMA 07-4293). Rockville, MD. http:// www.oas.samhsa.gov/nhsda.htm. --------------------------------------------------------------------------- According to the NSDUH, more than 20 percent of persons age 12 or older have used psychotherapeutic drugs nonmedically in their lifetime. Overall, 33 million Americans are estimated to have used prescription pain killers for nonmedical reasons in their lifetime. Specific pain relievers with statistically significant increases in lifetime use for 18 to 25 year olds between 2003 and 2006 were the Schedule III controlled substances Vicodin[supreg], Lortab[supreg], or Lorcet[supreg] (from 15.0 percent to 18 percent); Schedule III controlled substances containing hydrocodone (from 16.3 percent to 19.2 percent); the Schedule II controlled substance OxyContin[supreg] (from 3.6 percent to 5.1 percent); and the Schedule II controlled substances containing oxycodone (from 8.9 percent to 10.8 percent). Results of a separate study of seventh through twelfth grade students were released April 21, 2005, by the Partnership for a Drug- Free America. The Partnership Attitude Tracking Study \2\ tracks consumers' exposure to and attitudes about drugs. The study focuses on perceived risk and social attitudes. For the first time in its seventeen-year history, the study found that teenagers are more likely to have abused a prescription pain medication to get high than they are to have experimented with a variety of illicit drugs including Ecstasy, cocaine, crack and LSD. In 2004, the study reported that nearly one in five teenagers, 18 percent, or 4.3 million teenagers nationally, indicated they have used the Schedule III controlled substance Vicodin[supreg] without a prescription. Approximately ten percent of teens, or 2.3 million teens nationally, reported using the Schedule II controlled substance OxyContin[supreg] without a prescription. Further, the study reported that ten percent, or 2.3 million teenagers nationally, reported having used prescription stimulants, Ritalin[supreg] and/or Adderall[supreg], without a prescription. The 2005 survey indicated that 50 percent of the teenagers surveyed indicated that prescription drugs are widely available; a third indicated that they were easy to purchase over the Internet. --------------------------------------------------------------------------- \2\ Partnership for a Drug-Free America; Partnership Attitude Tracking study, 2005; http://www.drugfree.org/Portal/DrugIssue/ Research/. --------------------------------------------------------------------------- The 2006 National Institute of Drug Abuse survey of drug use by teens in the eighth, tenth, and twelfth grades, Monitoring the Future: National Results on Adolescent Drug Use \3\, found that past-year nonmedical use of Vicodin[supreg] (Schedule III) remained high among all three grades, with nearly one in ten high school seniors using it in the past year. Despite a drop from 2005 to 2006 in past-year abuse of OxyContin[supreg] among twelfth graders (from 5.5 percent to 4.3 percent), there has been no such decline among the eighth and tenth grade students, and the rate of use among the youngest students has increased significantly since it was included in the survey in 2002. --------------------------------------------------------------------------- \3\ Johnston, L. D., O'Malley, P. M., Bachman, J. G., and Schulenberg, J. E. (2007). Monitoring the Future national results on adolescent drug use: Overview of key findings, 2006. (NIH Publication No. 07-6202). Bethesda, MD: National Institute on Drug Abuse; http://www.monitoringthefuture.org/pubs.html. --------------------------------------------------------------------------- The consequences of prescription drug abuse are seen in the data collected by the Substance Abuse and Mental Health Services Administration on emergency room visits. In the latest data, Drug Abuse Warning Network (DAWN), 2005: National Estimates of Drug-Related Emergency Department Visits,\4\ SAMHSA estimates that about [[Page 36726]] 599,000 emergency department visits involved nonmedical use of prescription or over-the-counter drugs or dietary supplements, a 21 percent increase over 2004. Of the 599,000 visits, 172,000 involved benzodiazepines (Schedule IV) and 196,000 involved opiates (Schedule II and III). Overall, controlled substances represented 66 percent of the estimated emergency department visits. Between 2004 and 2005, the number of visits involving opiates increased 24 percent and the number involving benzodiazepines increased 19 percent. About a third (200,000) of all visits involving nonmedical use of pharmaceuticals resulted in admission to the hospital; about 66,000 of those individuals were admitted to critical care units; 1,365 of the visits ended with the death of the patient. More than half of the visits involved patients 35 and older. --------------------------------------------------------------------------- \4\ Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Drug Abuse Warning Network, 2005: National Estimates of Drug-Related Emergency Department Visits. DAWN Series D-29, DHHS Publication No. (SMA) 07-4256, Rockville, MD, 2007; http://dawninfo.samhsa.gov/pubs/edpubs/default.asp. --------------------------------------------------------------------------- Means by Which Controlled Substances Are Diverted Understanding the means by which controlled substances are diverted is critical to determining appropriate regulatory controls. Diversion of prescription controlled substances can occur in a number of ways, including, but not limited to, the following: Prescription pads are stolen from practitioners' offices by patients, staff, or others and illegitimate prescriptions are written. Legitimate prescriptions are altered to obtain additional amounts of legitimately prescribed controlled substances. Drug-seeking patients may falsify symptoms and/or obtain multiple prescriptions from different practitioners for their own use or for resale. In some cases, organized groups visit practitioners with fake symptoms to obtain prescriptions, which are filled and resold. Some patients resell their legitimately obtained drugs to earn extra money. Prescription pads containing legitimate practitioner information (e.g., name, address, DEA registration number) are printed with a different call back number that is answered by an accomplice to verify the prescription. Computers and scanning or copying equipment are used to create prescriptions for nonexistent practitioners or to copy legitimate practitioners' prescriptions. Pharmacies and other locations where controlled substances are stored are robbed or burglarized. Diversion from within the practitioner's practice or pharmacy may also occur, such as in the following situations: Prescriptions are written for other than a legitimate medical purpose. Some practitioners knowingly write prescriptions for nonmedical purposes. Criminal organizations commonly referred to as ``rogue Internet pharmacies'' often employ practitioners to issue prescriptions based on online questionnaires from patients with whom the practitioner has no legitimate medical relationship. Controlled substances are stolen from a pharmacy by pharmacy personnel. Legitimately dispensed prescriptions may be altered to make the thefts less detectable. Legitimate prescriptions may be stolen from legitimate patients. The stolen legitimate prescriptions may be filled by persons addicted to or abusing controlled substances. Given these common methods of diversion, as well as the alarmingly increasing extent of prescription controlled substance abuse in the United States, many of those at the DEA/HHS public meeting in 2006, particularly representatives of Federal and state law enforcement and regulatory agencies, emphasized that any system allowing the electronic prescribing of controlled substances must have sufficient safeguards to prevent contributing further to the diversion problem in this country. Indeed, this is true regardless of the means used to divert controlled substances in the paper-based system, because electronic prescribing of controlled substances could, if not properly implemented, present another means of diversion in addition to those listed above. However, with proper controls, the risk of diversion can actually be reduced through the use of electronic prescriptions. Among the essential elements of such a system are ensuring that only DEA registrants electronically sign and authorize controlled substance prescriptions and that the prescription record cannot be altered without the alteration being detectable. A system that fails to provide verification of the signer's identity and authority to issue controlled substance prescriptions, and/or fails to ensure that alteration of the record is detectable, would create new routes of diversion that could be even harder to prevent and detect. III. Current Requirements for Prescriptions for Controlled Substances As noted above, the CSA requires that, except in limited emergency circumstances, a pharmacist may only dispense a Schedule II controlled substance pursuant to a written prescription from a practitioner (21 U.S.C. 829(a)). For Schedule III and IV controlled substances, a pharmacist may dispense the controlled substance pursuant to a written or oral prescription from a practitioner (21 U.S.C. 829(b)). Every written prescription must be signed by the practitioner in the same way the practitioner would sign a check or other legal document, e.g., ``John H. Smith'' or ``J.H. Smith'' (21 CFR 1306.05). A prescription for a controlled substance may be issued only by an individual practitioner who is authorized to prescribe by the State in which he is licensed to practice and is registered, or exempted from registration, with DEA (21 U.S.C. 822, 823). To be valid, a prescription must be written for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice; a corresponding responsibility rests with the pharmacist who fills the prescription (21 CFR 1306.04). An order purporting to be a prescription issued not in the usual course of professional treatment is not a prescription within the meaning and intent of the Controlled Substances Act, and the person knowingly filling such a purported prescription, as well as the person issuing it, is subject to the penalties provided for violations of the provisions of law relating to controlled substances. Longstanding DEA regulations specify that each controlled substance prescription contain certain information including the practitioner's manual signature (21 CFR 1306.05). The manual signature affixed to the controlled substance prescription by the practitioner serves as formal attestation by the practitioner that the prescription has been written for a legitimate medical purpose and affirms the practitioner's authority to prescribe the controlled substance in question. The prescribing practitioner is responsible in case the prescription does not conform in all essential respects to the law and regulations. Further, a corresponding liability rests upon the pharmacist who fills a prescription not prepared in the form prescribed by DEA regulations (21 CFR 1306.05). A prescription may be filled only by a pharmacist acting in the usual course of professional practice who is [[Page 36727]] employed in a registered pharmacy (21 CFR 1306.06). Except under limited circumstances, a pharmacist may dispense a Schedule II controlled substance only upon receipt of the original written prescription manually signed by the practitioner (21 U.S.C. 829, 21 CFR 1306.11). A pharmacist may dispense a Schedule III or IV controlled substance only pursuant to a written and manually signed prescription from an individual practitioner, which is presented directly or transmitted via facsimile to the pharmacist, or an oral prescription, which the pharmacist promptly reduces to writing containing all of the information required to be in a prescription, except the signature of the practitioner (21 U.S.C. 829, 21 CFR 1306.21). Every prescription must be initialed and dated by the pharmacist filling the prescription (21 CFR 1304.22(c)). Under many circumstances, pharmacists are required to note certain specific information regarding dispensing on the prescription or recorded in a separate document referencing the prescription before the prescription is placed in the pharmacy's prescription records. DEA requires the registered pharmacy to maintain records of each dispensing for two years from the date of dispensing of the controlled substance (21 U.S.C. 827(b), 21 CFR 1304.04). However, many States require that these records be maintained for longer periods of time. These records must be made available for inspection and copying by authorized employees of DEA (21 U.S.C. 827(b)). This system of records is unique in that the prescribing practitioner creates the prescription, but the dispensing pharmacy retains the record. The signature requirement for written prescriptions for controlled substances provides DEA with reliable evidence needed to enforce the CSA in administrative, civil, and criminal legal proceedings. In criminal proceedings for violations of the CSA, the Government must prove the violation beyond a reasonable doubt. As the agency responsible for monitoring compliance with the regulatory requirements of the CSA, it is essential that DEA have the ability to determine whether a given prescription for a controlled substance was, in fact, signed by the practitioner whose name appears on the prescription. It is likewise essential that DEA have the ability to determine that a prescription that has been filled by a pharmacy was not altered after it was prepared by the practitioner. Further, because DEA relies on the records of these prescriptions in the conduct of investigations, DEA must also know that the prescription has not been altered after receipt by the pharmacy. The elements of the prescription that identify the practitioner (the practitioner's name, address, DEA registration number, and signature) also serve to enable the pharmacy to authenticate the prescription. If a pharmacy is unfamiliar with the practitioner, it can use the registration number to verify the identity of the practitioner through publicly available records. Those same records would indicate to the pharmacy whether the practitioner has the authority to prescribe the schedule of the controlled substance in question. Requiring that the original documents be maintained in paper form serves to support both the accuracy and integrity of each record and, thus, the accuracy and integrity of the system of records as a whole. The availability of the original written and manually signed prescription provides a level of document integrity and provides physical evidence if the record has been altered: alterations of a hard-copy record are usually apparent upon close examination. A forensic examination of a prescription can prove that a practitioner signed it or, equally important, that the practitioner did not sign it. The maintenance of the paper record at a pharmacy also ensures that State and local law enforcement agencies have access to records they need for investigations. In addition, there will be a limited number of pharmacy employees who will have annotated the record and can testify that the prescription is, in fact, the prescription they received and dispensed. IV. Existing Electronic Prescription Systems At present, there are more than 110 service providers that offer systems to generate electronic prescriptions and approximately 20 that handle the receipt of prescriptions at pharmacies.\5\ The electronic capabilities of practitioners' offices and pharmacies and the systems used are considerably different. Both types of systems, however, can be classified in the same ways. Systems may be stand-alone software that only handle prescriptions or integrated into larger management systems. In general, pharmacy systems are part of larger pharmacy management systems. Most electronic prescription systems are now integrated into larger electronic health records (EHR) systems; existing stand-alone systems may be integrated into EHR systems in the future.6 7 --------------------------------------------------------------------------- \5\ Estimates are based on the number of systems certified by SureScripts plus the number of electronic medical record systems certified by the Certification Commission for Health Information Technology. \6\ National Alliance on Health Information Technology, ``Report to the office of the National Coordinator on Health Information Technology on Defining Key Health Information Technology Terms'', April 28, 2008. http://www.nahit.org/cms/images/docs/ hittermsfinalreport_051508.pdf. \7\ The National Alliance for Health Information Technology has defined the terms ``electronic Medical record (EMR),'' ``electronic health record (EHR),'' and ``personal health record (PHR).'' Both EMRs and EHRs are defined to be maintained by practitioners, whereas a PHR is defined to be maintained by the individual patient. The main distinction between an EMR and an EHR is the EHR's ability to exchange information interoperably. DEA's use of the term EHR in this rule relates to those records maintained by practitioners, as opposed to a PHR maintained by an individual patient, regardless of how those records are maintained. --------------------------------------------------------------------------- Systems may also be installed on a practice or pharmacy computers or may be operated by application service providers (ASPs). In the ASP model, the program is retained on the ASP servers and the user accesses the system using leased lines or over the Internet. The ASP retains the records generated. Many pharmacy systems are installed at the pharmacy, but larger chains often operate like an ASP, holding the records on a central server that any pharmacy in the chain may access. Many practitioner stand-alone electronic prescription systems are ASPs. Because practitioners want to be able to access the system when they are out of the office, access is usually over the Internet. Practitioners log on to the system using the same kinds of identification mechanisms as other online business sites (passwords, user IDs). Pharmacy Systems. Almost all pharmacies have computerized prescription records, which are integrated into overall pharmacy management systems that process insurance claims and billings. When a pharmacy receives a prescription on paper or by phone, the pharmacist or technician keys the information on the prescription into the system; if the patient has had other prescriptions filled at that pharmacy, the patient's personal identifying information is already in the system and does not have to be rekeyed. Many pharmacy systems have been reprogrammed to be able to capture the data from electronic prescriptions directly. Although many pharmacies have the ability to accept electronic prescriptions, few such prescriptions are sent currently. Many of the ``electronic prescriptions'' generated are in fact transmitted to the pharmacy as faxes or simply printed out and given to [[Page 36728]] the patient. Renewals are more likely to be handled electronically than original prescriptions. Nonetheless, the capability to accept electronic prescriptions is widespread in the pharmacy sector. Practitioner Electronic Prescription Systems. Electronic prescription systems for practitioners have existed for a number of years, but are still not widely used. A Centers for Disease Control and Prevention (CDC) study of electronic medical record (EMR) system use in 2006 found that about 12 percent of physicians have the ability to send prescriptions electronically using their EMR system.\8\ The number of those systems that are used or that generate true electronic prescriptions is unclear. A Rand Health study of 58 electronic prescribing systems found that only 58 percent allowed electronic transmission of the prescriptions (as a data file), while almost all produced printed prescriptions and most could generate faxes.\9\ The CDC study indicated that the electronic prescribing function is one of the less used functions of EMRs. --------------------------------------------------------------------------- \8\ Centers for Disease Control and Prevention, ``Electronic Medical Record Use by Office-Based Physicians and Their Practices: United States 2006.'' Advance Data from Vital and Health Statistics, Number 393, October 26, 2007. \9\ Wang, C. Jason et al., ``Functional Characteristics of Commercial Ambulatory Electronic Prescribing Systems: A Field Study,'' Journal of the American Medical Informatics Association, 2005; 12:346-356. --------------------------------------------------------------------------- As noted above, many electronic prescription systems are Web-based ASPs. The ASP maintains the records, which reduces the initial cost to the practice by limiting the investment in hardware and connections. The ASP enrolls a practice, issues keys or sets up other authentication mechanisms, which allow the practitioner to log onto the system from any location. Most ASP systems and some installed systems can be accessed using PDAs and other handheld devices. Because many office staff may need to access the systems, many service providers also set different levels of authority so that only practitioners may sign prescriptions; the ability to support varying access levels is a requirement for EHR certification for systems certified by the Certification Commission for Healthcare Information Technology (CCHIT). Over the long term, it is generally assumed that stand-alone electronic prescription systems will be integrated into or replaced by electronic health record (EHR) systems. In this way, data on prescriptions will be automatically added to a patient's records. This shift to EHRs is occurring rapidly. Of the 119 systems certified by SureScripts or CCHIT at the end of 2007, 103 were EHRs. DEA welcomes comments on the protections currently implemented in the systems referenced above to protect against noncontrolled substance prescription forgery, fraud, and other related crimes, and what risk-mitigating controls are in place. DEA also seeks comment as to whether up-to-date information or statistics are available regarding physicians' ability to send noncontrolled substance prescriptions electronically using their EHR systems and usage of such system functionality. When providing comments regarding this or any other request in this NPRM, commenters should clearly cite the source of the information, the origin of the data, the methodology or analytical techniques used to derive the information, and the limitations of the information, so that DEA may determine the quality, objectivity, utility, and integrity of any data or information provided. Intermediaries. With so many electronic prescription systems and pharmacy systems, the issue of interoperability is critical. Electronic prescriptions will be of limited value to pharmacies if their systems cannot read the prescription and translate the data directly into their databases. To deal with this issue, the National Council for Prescription Drug Programs (NCPDP) has established a standard format for prescriptions, NCPDP SCRIPT standard in XML (current version is 10, but version 8.1 is the standard that Medicare specifies). Despite the standard, interoperability problems are likely to continue as both practitioner and pharmacy systems may be using different platforms and different versions of SCRIPT. At present, the interoperability problem is solved by using intermediaries that reformat the prescription so that the receiving pharmacy will be able to process it electronically. Electronic prescriptions are transmitted through not one, but a series of intermediaries. The first recipient, once the prescription is signed, may be the ASP or an aggregator that the electronic prescription system uses. This recipient assigns a trace number to the electronic prescription that becomes part of the prescription record. The ASP or aggregator generally will transmit it to SureScripts or a similar intermediary. SureScripts is a service established by the pharmacy industry to reformat the prescriptions so the receiving pharmacy's system can process them without rekeying the information. SureScripts certifies both pharmacy and practitioner service providers, to ensure that the data it receives will be translatable into other formats. SureScripts may transmit the reformatted electronic prescription directly to a pharmacy, the central server of a chain pharmacy, or the ASP pharmacy management system, which then routes the prescription to the pharmacy for ultimate dispensing. DEA welcomes comments on the protections currently implemented by intermediaries to protect against noncontrolled substance prescription forgery, fraud, and other related crimes, and what risk-mitigating controls are in place. DEA also welcomes comments regarding the current standards and practices used by network intermediaries to route noncontrolled substance electronic prescriptions and whether such networks allow or provide the capability to ``open'' an electronic prescription that is en route. Hospitals. A final complexity to the electronic prescription network arises from practitioners who serve on the staff of hospitals. Two technical issues exist with any electronic prescriptions these practitioners may write. First, hospital electronic record systems are written in computer languages other than SCRIPT, often HL7. If a staff practitioner writes an electronic prescription for a patient to fill at a pharmacy outside of the hospital, the intermediaries or pharmacies have to be able to translate the electronic prescriptions from HL7 to their own computer system language. Second, staff practitioners are not required to register with DEA. They are allowed to issue prescriptions under the hospital DEA registration number with a hospital-assigned extension that identifies the specific person issuing the prescription. DEA does not dictate the format of the extension. In at least some cases, pharmacy computer systems have not been able to handle the extensions. V. Potential Vulnerabilities That Need To Be Addressed To Prevent Electronic Prescribing From Contributing to the Diversion of Controlled Substances Many parties in the healthcare industry are encouraging the adoption of electronic prescriptions because such prescriptions have the potential to improve patient safety by eliminating medical errors that arise from misread or misunderstood prescriptions and eliminating adverse events that result from drug interactions. They can also control costs by ensuring that more drugs prescribed are covered by formularies or are generic versions. Although DEA also supports electronic prescribing, the Administration faces some challenges as it moves into an electronic world. A recent study conducted for HHS by the [[Page 36729]] American Health Information Management Association \10\ noted that ``e- prescribing presents a new vulnerability because of the increased velocity of authenticated automated transactions.'' Unless an electronic prescription system is properly designed, DEA's ability to prevent diversion and take legal action against those who violate the CSA could be seriously undermined. --------------------------------------------------------------------------- \10\ American Health Information Management Association, ``Report on the Use of Health Information Technology to Enhance and Expand Health Care Anti-Fraud Activities,'' [September 2005] p. 45. --------------------------------------------------------------------------- As discussed above, with the paper-based system, the paper records provide DEA and other law enforcement agencies with documents that can be used in legal actions to prove that a practitioner has issued prescriptions for other than legitimate medical purposes, that others have forged prescriptions, or that pharmacy records or inventories are inconsistent with prescriptions received. The necessity for presenting prescriptions to pharmacies and picking up the drugs also limits the scope of diversion when it occurs. In contrast, electronic prescriptions can be easy to create, transmit, and alter, often without leaving a trail that links the person forging or altering a prescription to the record. Not only practice and pharmacy staff, but also staff at any of the systems involved in creating, transmitting, and processing prescriptions could generate or alter prescriptions. With the Internet and mail order pharmacies, those bent on diversion gain the ability to send prescriptions to a large number of pharmacies with a few keystrokes. DEA's concerns with the existing electronic prescription system are the following: Service providers do not always determine whether the people enrolling are legally permitted to issue prescriptions, let alone controlled substance prescriptions. Some service providers appear to enroll practices over the Internet; some require submission of copies of the person's DEA registration and State license. Such procedures provide no assurance that authority to issue controlled substance electronic prescriptions will not be granted to people who are not DEA registrants. The DEA registrant list, including DEA registration numbers, is publicly available. The DEA number also appears on each controlled substance prescription and in many cases is preprinted on prescription pads so that any patient receiving a prescription for any drug, regardless of whether it is a controlled substance, will have access to the number. State license information is readily accessible from online State databases. Office staff may have access to the originals to copy. Copies of registration and license certificates would be easy to generate and submit. Present service provider procedures do not protect a practitioner from someone inside or outside the practitioner's practice setting up an account and creating fraudulent prescriptions in the practitioner's name. Moreover, current system designs could also allow a practitioner to repudiate prescriptions written for the purpose of diversion. Some systems may not limit who within a medical practice can ``sign'' prescriptions. Many staff at practices may have legitimate needs to access the system; only some have a legal right to sign prescriptions. Unless systems limit the ``signing'' function to practitioners with a legal right to issue prescriptions and provide unique identifiers that make it possible to determine who signed the prescription, taking enforcement action against practitioners who issue illegal prescriptions will be impossible because DEA will not be able to prove beyond a reasonable doubt who signed the prescription. This problem is exacerbated because ``signing'' in an electronic prescription system is a function that is usually nothing more than a keystroke that indicates that the prescription is complete; there is no ``signature'' applied to the prescription. In some cases, there may not be a ``signing'' function, but simply a command to transmit. (The SCRIPT standard does not currently provide a field for an electronic signature or an indication that the prescription has been signed.) Access to systems is usually by means of easily shared or stolen information (passwords, user IDs). As William Winsley, Executive Director of the Ohio Board of Pharmacy testified at the DEA/HHS July 2006 public meeting, ``Passwords are useless as a means of computer security in a healthcare setting.'' Too many people are in the vicinity of computers in practice offices to be certain that a password has not been compromised. If passwords or PINs are the only means of authentication for an electronic prescription system, law enforcement agencies will not be able to prove beyond a reasonable doubt who signed an electronic prescription. Practitioners will be able to repudiate prescriptions by saying that someone must have used their passwords. Once created and signed, electronic prescriptions pass through several intermediaries, all of which may open the record. Although this process is usually handled without individuals accessing the record, there is no guarantee that they could not do so. Most identity theft occurs not from people hacking into systems, but rather from insiders who know how to manipulate the system. Paul Donfried of SAFE BioPharma \11\ and Strategic Identity Group noted at the July 2006, DEA/HHS public meeting: ``It generally is not the cryptography or the firewalls or the audit logs or the data centers that people attack. It is whatever the weak link in the chain is, which normally is the human beings who are responsible for keeping the stuff running and operating correctly.'' --------------------------------------------------------------------------- \11\ SAFE BioPharma is an organization ``that created and manages the SAFE digital identity and signature standard for the pharmaceutical and healthcare industries.'' --------------------------------------------------------------------------- The processing of the prescriptions by multiple parties could mean that law enforcement would have to prove that none of the parties altered the document. This requirement could substantially increase the cost of bringing cases against registrants who are diverting controlled substances as well as burden the service providers and intermediaries, which would have to produce audit trail records and experts to testify. The records of the prescriptions are often held by the service providers and intermediaries, not the pharmacies. With paper records, DEA and other law enforcement agencies have the right to inspect and remove records from pharmacies. With electronic records held by service providers and others, DEA and other agencies would have to subpoena records from the third parties--nonregistrants over whom law enforcement may have limited jurisdiction. Although this is a lesser problem for DEA, it could pose a substantial barrier to State and local law enforcement, which would be in the position of having to find other agencies willing to serve subpoenas on service providers who were located in other States. Records of electronic prescriptions at pharmacies and at intermediaries may be stored as strings of data, not as easily read text. These records must be able to be downloaded into a format that is easily read and manipulated by law enforcement. DEA is convinced that its concerns can be addressed without creating insurmountable barriers to electronic prescribing. DEA's requirements in developing this proposed rule are the following: The approach must meet DEA's statutory mandates. Only DEA registrants may be granted the authority [[Page 36730]] to sign controlled substance electronic prescriptions. The method used to authenticate a practitioner to the electronic prescribing system must ensure to the greatest extent possible that the practitioner cannot repudiate the prescription. Authentication methods that can be compromised without the practitioner being aware of the compromise are not acceptable. Electronic prescriptions must include all information required for paper controlled substance prescriptions. The prescription records must be reliable enough to be used in legal actions without having to substantially expand the number of witnesses that need to be called to verify records. The pharmacy system must allow annotation of the records as required for paper prescriptions and must indicate who made each annotation. The security systems used by any of the service providers must, to the greatest extent possible, prevent the possibility of insider creation or alteration of controlled substance prescriptions. In addition, DEA wishes to adopt an approach that is flexible enough that future changes in technologies will not make the system obsolete or lock registrants into more expensive systems. DEA notes that its requirements do not relate to most of the functions of electronic prescribing systems. Other than requiring that the electronic prescription contain the basic information that any c