REPORT TITLE:
Pain Management


DESCRIPTION:
Clarifies controlled substances act to facilitate prescribing
drugs for intractable pain in terminally ill patients; clarifies
that it is not physician assisted suicide; requires autopsy
report to state cause of death from the disease; provides civil,
criminal, and professional disciplinary proceedings immunity.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2372
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                   A  BILL  FOR  AN  ACT

RELATING TO PAIN MANAGEMENT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that there are serious
 
 2 problems in the current health care system in Hawaii with regards
 
 3 to meeting the special needs of individuals who are approaching
 
 4 the end of their lives and are suffering from intractable pain.
 
 5 Numerous studies cite pain as a reason for physician-assisted
 
 6 suicide, making the need for pain relief at the end of life an
 
 7 urgent necessity.  The Governor's Blue Ribbon Panel on Living and
 
 8 Dying with Dignity, in its Final Report in May, 1998, stated:
 
 9 "Death is often accompanied by pain which is severe enough to
 
10 make living unbearable ... the palliation of pain can in most
 
11 instances bring relief, comfort, and dignity during one's final
 
12 days.  An adequate level of pain control is not always
 
13 instituted."
 
14      Intractable pain often results in longer hospital stays,
 
15 repeated hospitalizations, and increased outpatient visits.  The
 
16 goal of palliative care for intractable pain for a patient having
 
17 a terminal condition is to maintain as high a quality of life as
 
18 possible, until death.
 
19      The legislature further finds that physicians have a fear of
 
20 prescribing pain relief medications for intractable pain at the
 

 
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 1 end of life because of the legal and ethical concerns about
 
 2 providing adequate pain relief, including loss of licensure,
 
 3 causing addiction in patients, criminal penalties, and
 
 4 malpractice.  Medical examiners may attribute a patient's death
 
 5 to large amounts of pain relief medication found in the blood,
 
 6 rather than to the disease which caused the pain.  As a result,
 
 7 physicians may underprescribe very effective pain medications or
 
 8 use them only as a last resort.  Recent medical evidence suggests
 
 9 that adequate pain management may prolong life by reducing
 
10 anxiety and improving activity and appetite, rather than induce
 
11 death.
 
12      At least fifteen states have enacted intractable pain
 
13 treatment statutes, including California, Colorado, Florida,
 
14 Michigan, Minnesota, Missouri, Nebraska, Nevada, New Mexico,
 
15 North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, and Texas.
 
16      The purpose of this Act is to remove the barriers that
 
17 impede the prescribing of controlled substances to treat
 
18 intractable pain in a patient having a terminal condition. 
 
19      SECTION 2.  Chapter 329, Hawaii Revised Statutes, is amended
 
20 by adding a new part to be appropriately designated and to read
 
21 as follows:
 
22            "PART  .  PRESCRIPTION FOR INTRACTABLE PAIN
 
23      §329-A  Findings, intent, and applicability.(a)  The
 
24 legislature finds that the use of controlled substances is
 

 
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 1 appropriate in the medical treatment of intractable pain.  The
 
 2 legislature further finds that efforts to control improper
 
 3 prescription or administration of controlled substances should
 
 4 not interfere with the legitimate, medically recognized use of
 
 5 controlled substances to relieve pain and suffering in a patient
 
 6 having intractable pain.  The intent of this part is to permit
 
 7 and facilitate the adequate treatment of intractable pain by
 
 8 licensed physicians who are registered under this chapter.
 
 9      (b)  This part shall not apply to the treatment of:
 
10      (1)  Chemical dependency caused by the habitual use of drugs
 
11           or controlled substances that is not related to a
 
12           terminal condition; or
 
13      (2)  Postoperative pain unless the operation was for
 
14           treatment of a terminal condition.
 
15      §329-B  Definitions.  As used in this part:                 
 
16      "Intractable pain" means a pain state in a patient having a
 
17 terminal condition for whom the cause of the pain cannot be
 
18 removed or otherwise treated, and which in the generally accepted
 
19 course of medical practice no relief or cure of the cause of the
 
20 pain is possible or none has been found after reasonable efforts.
 
21      "Reasonable efforts" means evaluation by:
 
22      (1)  The attending physician registered under section 329-33
 
23           and licensed under chapter 453 or 460; and
 

 
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 1      (2)  One or more physicians licensed under chapter 453 or
 
 2           460 specializing in the treatment of the area, system,
 
 3           or organ of the body perceived to be the source of the
 
 4           pain.
 
 5 For purposes of this definition, evaluation shall be made in
 
 6 accordance with the level of care, skill, and treatment that
 
 7 would be recognized by a reasonably prudent physician under
 
 8 similar conditions and circumstances.
 
 9      "Terminal condition" means any incurable or irreversible
 
10 disease, illness, condition, or injury, which as a medical
 
11 probability will result in the death of the patient.
 
12      §329-C  Use of controlled substances for medical treatment
 
13 of intractable pain; legitimate medical purpose.  (a)  No
 
14 requirement of this chapter relating to the prescription of
 
15 controlled substances, including section 329-38, shall be
 
16 construed to prevent or inhibit the legitimate, medically
 
17 recognized use of controlled substances, including schedule II
 
18 substances, to treat intractable pain when medically appropriate,
 
19 by a physician licensed under chapter 453 or 460; provided that
 
20 the prescription complies with the medically recognized practice
 
21 guidelines under section 329-D.
 
22      (b)  A prescription in compliance with this part shall be
 
23 deemed a legitimate medical purpose for purpose of section
 
24 329-38(d)(1).
 

 
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 1      §329-D  Medically recognized practice guidelines.(a)  The
 
 2 department of public safety, with the advice of the Hawaii
 
 3 advisory commission on drug abuse and controlled substances and
 
 4 the board of medical examiners, shall adopt medically recognized
 
 5 practice guidelines for prescribing controlled substances for the
 
 6 treatment of intractable pain.  
 
 7      (b)  Until medically recognized practice guidelines under
 
 8 subsection (a) are formulated, prescriptions for the treatment of
 
 9 intractable pain shall comply with the "Clinical Practice
 
10 Guideline for the Management of Cancer Pain" or the "Clinical
 
11 Practice Guideline for Acute Pain Management", as applicable,
 
12 adopted by the Public Health Service Agency for Health Care
 
13 Policy and Research of the United States Department of Health and
 
14 Human Services.
 
15      §329-E  Not physician-assisted suicide.  A patient with
 
16 intractable pain who dies in the course of being treated with one
 
17 or more controlled substances prescribed in compliance with this
 
18 part shall not be deemed a physician-assisted suicide.
 
19      §329-F  Coroner's inquest form.  For purposes of section
 
20 841-7, the coroner's inquest form shall state as the cause of
 
21 death of a patient treated for intractable pain in compliance
 
22 with this part, the patient's disease or condition, rather than
 
23 the administration of controlled substances.
 

 
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 1      §329-G  Immunity.  No physician licensed under chapter 453
 
 2 or 460, who complies with this part shall be subject to civil
 
 3 action, criminal prosecution (including murder or manslaughter),
 
 4 or professional disciplinary proceeding for prescribing
 
 5 controlled substances in the treatment of intractable pain."
 
 6      SECTION 3.  Section 329-38, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (a) to read as follows:
 
 8      "(a)  No controlled substance in schedule II may be
 
 9 dispensed without a written prescription of a practitioner,
 
10 except:
 
11      (1)  In an emergency situation, those drugs may be dispensed
 
12           upon oral prescription of a practitioner; provided that
 
13           promptly thereafter, the prescription is reduced to
 
14           writing by the practitioner and filed by the pharmacy;
 
15           or
 
16      (2)  When dispensed directly by a practitioner, other than a
 
17           pharmacist, to the ultimate user.  The practitioner in
 
18           dispensing a controlled substance in schedule II shall
 
19           affix to the package a label showing:
 
20           (A)  The date of dispensing;
 
21           (B)  The name, strength, and quantity issued of the
 
22                drug;
 
23           (C)  The dispensing practitioner's name and address;
 

 
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 1           (D)  The name of the patient;
 
 2           (E)  The date the potency of the drug expires if that
 
 3                date is available from the manufacturer or
 
 4                principal labeler; and
 
 5           (F)  Directions for use, and cautionary statements, if
 
 6                any, contained in the prescription or as required
 
 7                by law.
 
 8 A complete and accurate record of all schedule II controlled
 
 9 substances ordered, administered, prescribed, and dispensed shall
 
10 be maintained for five years.  All schedule II prescriptions
 
11 shall be written by the practitioner in duplicate.  Prescriptions
 
12 and records of dispensing shall otherwise be retained in
 
13 conformance with the requirements of section 329-36.  No
 
14 prescription for a controlled substance in schedule II may be
 
15 refilled[.]; except that a prescription written under part    
 
16 may be refilled not more than    times after the date of the
 
17 prescription, or the prescription may be renewed by the
 
18 practitioner."
 
19      SECTION 4.  In codifying the new sections added to chapter
 
20 329, Hawaii Revised Statutes, by section 2 of this Act, the
 
21 revisor of statutes shall substitute appropriate section numbers
 
22 for the letters used in the designation of the new sections in
 
23 this Act.
 

 
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 1      SECTION 5.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 6.  This Act shall take effect upon its approval.
 
 4 
 
 5                           INTRODUCED BY:  _______________________