Bill Text: NY A10069 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to criminal diversion of prescription medications and prescriptions; establishes the offense of fraudulent prescription, dispensing and procurement of non-controlled substance prescription medications and devices; establishes the offense of unlawful possession of non-controlled substance prescription medications and devices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-05-10 - referred to codes [A10069 Detail]
Download: New_York-2015-A10069-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10069 IN ASSEMBLY May 10, 2016 ___________ Introduced by M. of A. McDONALD -- read once and referred to the Commit- tee on Codes AN ACT to amend the penal law, in relation to criminal diversion of prescription medications and prescriptions, establishing the offense of fraudulent prescription, dispensing and procurement of non-cont- rolled substance prescription medications and devices, and establish- ing the offense of unlawful possession of non-controlled substance prescription medications and devices The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 178.00 of the penal law, as added by chapter 81 of 2 the laws of 1995, is amended to read as follows: 3 § 178.00 Criminal diversion of prescription medications and 4 prescriptions; definitions. 5 The following definitions are applicable to this article: 6 1. "Prescription medication or device" means any article for which a 7 prescription is required in order to be lawfully sold, delivered or 8 distributed by any person authorized by law to engage in the practice of 9 the profession of pharmacy. 10 2. "Prescription" means a direction or authorization by means of a 11 written prescription form, electronic prescription or an oral 12 prescription which permits a person to lawfully obtain a prescription 13 medication or device from any person authorized to dispense such 14 prescription medication or device. 15 3. "Prescription form" means an official state prescription form 16 authorized by a state for use by health practitioners authorized to 17 write prescriptions. 18 4. "Criminal diversion act" means an act or acts in which a person 19 knowingly: 20 (a) transfers or delivers, in exchange for anything of pecuniary 21 value, a prescription medication or device with knowledge or reasonable 22 grounds to know that the recipient has no medical need for it; or 23 (b) receives, in exchange for anything of pecuniary value, a 24 prescription medication or device with knowledge or reasonable grounds EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03976-01-5A. 10069 2 1 to know that the seller or transferor is not authorized by law to sell 2 or transfer such prescription medication or device; or 3 (c) receives, in exchange for anything of pecuniary value, a 4 prescription medication or device, prescription, or prescription form 5 from a law enforcement officer acting in an undercover capacity or his 6 or her agent, believing or having reasonable ground to believe that the 7 officer or his or her agent is someone who is not authorized by law to 8 sell or transfer such prescription medication or device, prescription, 9 or prescription form; or 10 (d) transfers or delivers a prescription or prescription form in 11 exchange for anything of pecuniary value; or 12 [(d)] (e) receives a prescription or prescription form in exchange for 13 anything of pecuniary value. 14 § 2. Paragraph (c) of subdivision 1 of section 178.05 of the penal 15 law, as added by chapter 81 of the laws of 1995, is amended and two new 16 paragraphs (d) and (e) are added to read as follows: 17 (c) a person acting in good faith who is seeking [treatment for a18medical condition or assisting another person to obtain treatment for a19medical condition] to obtain a prescription, prescription medication or 20 device that has been lawfully prescribed to him or her, and for which he 21 or she has a medical need; or 22 (d) a person acting in good faith, who reasonably believes that he or 23 she is assisting another person to obtain a prescription, prescription 24 medication or device that has been lawfully prescribed to that other 25 person; or 26 (e) a duly registered manufacturer or wholesaler of drugs, as defined 27 in article one hundred thirty-seven of the education law, acting in good 28 faith in the lawful course of his or her business. 29 § 3. Section 178.10 of the penal law, as added by chapter 81 of the 30 laws of 1995, is amended to read as follows: 31 § 178.10 Criminal diversion of prescription medications and 32 prescriptions in the [fourth] fifth degree. 33 A person is guilty of criminal diversion of prescription medications 34 and prescriptions in the [fourth] fifth degree when he or she commits a 35 criminal diversion act. 36 Criminal diversion of prescription medications and prescriptions in 37 the [fourth] fifth degree is a class A misdemeanor. 38 § 4. Section 178.15 of the penal law, as added by chapter 81 of the 39 law of 1995, is amended to read as follows: 40 § 178.15 Criminal diversion of prescription medications and 41 prescriptions in the [third] fourth degree. 42 A person is guilty of criminal diversion of prescription medications 43 and prescriptions in the [third] fourth degree when he or she: 44 1. commits a criminal diversion act, and the value of the benefit 45 exchanged is in excess of one thousand dollars; or 46 2. commits the crime of criminal diversion of prescription medications 47 and prescriptions in the [fourth] fifth degree, and has previously been 48 convicted of [the crime of criminal diversion of prescription medica-49tions and prescriptions in the fourth degree] an offense defined in this 50 article; or 51 3. commits the crime of criminal diversion of prescription medications 52 and prescriptions in the fifth degree on two or more occasions over a 53 thirty-five day period. 54 Criminal diversion of prescription medications and prescriptions in 55 the [third] fourth degree is a class E felony.A. 10069 3 1 § 5. Section 178.20 of the penal law, as added by chapter 81 of the 2 laws of 1995, is amended to read as follows: 3 § 178.20 Criminal diversion of prescription medications and 4 prescriptions in the [second] third degree. 5 A person is guilty of criminal diversion of prescription medications 6 and prescriptions in the [second] third degree when he or she: 7 1. commits a criminal diversion act, and the value of the benefit 8 exchanged is in excess of three thousand dollars; or 9 2. commits the crime of criminal diversion of prescription medications 10 and prescriptions in the fifth degree on four or more occasions over a 11 thirty-five day period; or 12 3. commits the crime of criminal diversion of prescription medica- 13 tions and prescriptions in the fifth degree, and is: 14 (a) a physician or other person authorized to issue a prescription; or 15 (b) a pharmacist or other person authorized to dispense prescription 16 medications and devices. 17 Criminal diversion of prescription medications and prescriptions in 18 the [second] third degree is a class D felony. 19 § 6. Section 178.25 of the penal law, as added by chapter 81 of the 20 laws of 1995, is amended to read as follows: 21 § 178.25 Criminal diversion of prescription medications and 22 prescriptions in the [first] second degree. 23 A person is guilty of criminal diversion of prescription medications 24 and prescriptions in the [first] second degree when he or she: 25 1. commits a criminal diversion act, and the value of the benefit 26 exchanged is in excess of fifty thousand dollars; or 27 2. commits the crime of criminal diversion of prescription medications 28 and prescriptions in the fifth degree on six or more occasions over a 29 thirty-five day period; or 30 3. commits the crime of criminal diversion of prescription medications 31 and prescriptions in the fifth degree on two or more occasions over a 32 ninety day period, and is: 33 (a) a physician or other person authorized to issue a prescription; or 34 (b) a pharmacist or other person authorized to dispense prescription 35 medications and devices. 36 Criminal diversion of prescription medications and prescriptions in 37 the [first] second degree is a class C felony. 38 § 7. The penal law is amended by adding a new section 178.30 to read 39 as follows: 40 § 178.30 Criminal diversion of prescription medications and 41 prescriptions in the first degree. 42 A person is guilty of criminal diversion of prescription medications 43 and prescriptions in the first degree when he or she commits the crime 44 of criminal diversion of prescription medications or prescriptions in 45 the fifth degree on five or more occasions over a ninety day period, and 46 is: 47 (a) a physician or other person authorized to issue a prescription; or 48 (b) a pharmacist or other person authorized to dispense prescription 49 medications and devices. 50 Criminal diversion of prescription medications and prescriptions in 51 the first degree is a class B felony. 52 § 8. The penal law is amended by adding a new article 178-A to read as 53 follows: 54 ARTICLE 178-A 55 FRAUDULENT PRESCRIPTION, DISPENSING AND PROCUREMENT OF 56 NON-CONTROLLED SUBSTANCE PRESCRIPTION MEDICATIONS AND DEVICESA. 10069 4 1 Section 178.50 Definitions. 2 178.55 Fraudulent prescription, dispensing and procurement of 3 non-controlled substance prescription medications and 4 devices in the third degree. 5 178.60 Fraudulent prescription, dispensing and procurement of 6 non-controlled substance prescription medications and 7 devices in the second degree. 8 178.65 Fraudulent prescription, dispensing and procurement of 9 non-controlled substance prescription medications and 10 devices in the first degree. 11 § 178.50 Definitions. 12 The following definitions are applicable to this article: 13 1. "Prescription medication or device" means any article for which a 14 prescription is required in order to be lawfully sold, delivered or 15 distributed by any person authorized by law to engage in the practice of 16 the profession of pharmacy. 17 2. "Prescription" means a direction or authorization by means of a 18 written prescription form, an electronic prescription or an oral 19 prescription which permits a person to lawfully obtain a prescription 20 medication or device from any person authorized to dispense such 21 prescription medication or device. 22 3. "Controlled substance" means any substance listed in schedule I, 23 II, III, IV or V of section thirty-three hundred six of the public 24 health law other than marihuana, but including concentrated cannabis as 25 defined in paragraph (a) of subdivision four of section thirty-three 26 hundred two of such law. 27 4. "Dispensing" and "dispenses" refer to the dispensing of a 28 prescription medication or device from or within a pharmacy, hospital, 29 physician's office, clinic or other pharmaceutical or medical facility. 30 § 178.55 Fraudulent prescription, dispensing and procurement of non- 31 controlled substance prescription medications and devices in 32 the third degree. 33 A person is guilty of fraudulent prescription, dispensing and procure- 34 ment of non-controlled substance prescription medications and devices in 35 the third degree when he or she: 36 1. issues a written, electronic or oral prescription for a non-cont- 37 rolled substance prescription medication or device, and is not a duly 38 licensed physician or other person authorized to issue such 39 prescription; or 40 2. dispenses a non-controlled substance prescription medication or 41 device, with knowledge or reasonable grounds to know that: 42 (a) the person for whom the medication or device has been prescribed 43 has no medical need for such medication or device; or 44 (b) no prescription for such medication or device was issued by a duly 45 licensed physician or other person authorized to issue such 46 prescription; or 47 (c) the prescription for such medication or device was forged; or 48 (d) the prescription for such medication or device was issued by a 49 duly licensed physician or other person authorized to issue such 50 prescription who was acting other than in good faith in the lawful 51 course of his or her professional practice; or 52 3. presents or submits a prescription for a non-controlled substance 53 prescription medication or device to, or receives a non-controlled 54 substance prescription medication or device from, a duly licensed phar- 55 macist or other person authorized to dispense such prescription medica- 56 tion or device, with knowledge or reasonable grounds to know that:A. 10069 5 1 (a) the person for whom the medication or device has been prescribed 2 has no medical need for such medication or device; or 3 (b) the prescription for such medication or device was not issued by a 4 duly licensed physician or other person authorized to issue such 5 prescription; or 6 (c) the prescription for such medication or device was forged; or 7 (d) the prescription for such medication or device was issued by a 8 duly licensed physician or other person authorized to issue such 9 prescription who was acting other than in good faith in the lawful 10 course of his or her professional practice. 11 Fraudulent prescription, dispensing and procurement of non-controlled 12 substance prescription medications and devices in the third degree is a 13 class D felony. 14 § 178.60 Fraudulent prescription, dispensing and procurement of non- 15 controlled substance prescription medications and devices in 16 the second degree. 17 A person is guilty of fraudulent prescription, dispensing and procure- 18 ment of non-controlled substance prescription medications and devices in 19 the second degree when he or she: 20 1. being a duly licensed physician or other person authorized to issue 21 a prescription, issues a written, electronic or oral prescription for a 22 non-controlled substance prescription medication or device, or dispenses 23 a non-controlled substance prescription medication or device: 24 (a) with knowledge or reasonable grounds to know that the person for 25 whom the prescription is issued, or to whom the medication is dispensed, 26 has no medical need for the medication or device that is being 27 prescribed; or 28 (b) other than in good faith in the lawful course of his or her 29 professional practice; or 30 2. being a duly licensed pharmacist or other person authorized to 31 dispense a prescription medication or device, dispenses a non-controlled 32 substance prescription medication or device: 33 (a) with knowledge or reasonable grounds to know that: 34 (i) the person for whom the medication or device has been prescribed 35 has no medical need for such medication or device; or 36 (ii) the prescription for such medication or device was not issued by 37 a duly licensed physician or other person authorized to issue such 38 prescription; or 39 (iii) the prescription for such medication or device was forged; or 40 (iv) the prescription for such medication or device was issued by a 41 duly licensed physician or other person authorized to issue such 42 prescription who was acting other than in good faith in the lawful 43 course of his or her professional practice; or 44 (b) other than in good faith, in the course of his or her lawful 45 professional practice. 46 Fraudulent prescription, dispensing and procurement of non-controlled 47 substance prescription medications and devices in the second degree is a 48 class C felony. 49 § 178.65 Fraudulent prescription, dispensing and procurement of non- 50 controlled substance prescription medications and devices in 51 the first degree. 52 A person is guilty of fraudulent prescription, dispensing and procure- 53 ment of non-controlled substance prescription medications and devices in 54 the first degree when he or she, being either a duly licensed physician 55 or other person authorized to issue a prescription, or a duly licensed 56 pharmacist or other person authorized to dispense a prescription medica-A. 10069 6 1 tion or device, commits the crime of fraudulent prescription, dispensing 2 and procurement of non-controlled substance prescription medications and 3 devices in the second degree on two or more occasions within a ninety 4 day period. 5 Fraudulent prescription, dispensing and procurement of non-controlled 6 substance prescription medications and devices in the first degree is a 7 class B felony. 8 § 9. Title M of the penal law is amended by adding a new article 219 9 to read as follows: 10 ARTICLE 219 11 UNLAWFUL POSSESSION OF NON-CONTROLLED SUBSTANCE PRESCRIPTION 12 MEDICATIONS AND DEVICES 13 Section 219.00 Definitions. 14 219.05 Limitations on application of article. 15 219.10 Unlawful possession of non-controlled substance 16 prescription medications and devices in the fifth 17 degree. 18 219.15 Unlawful possession of non-controlled substance 19 prescription medications and devices in the fourth 20 degree. 21 219.20 Unlawful possession of non-controlled substance 22 prescription medications and devices in the third 23 degree. 24 219.25 Unlawful possession of non-controlled substance 25 prescription medications and devices in the second 26 degree. 27 219.30 Unlawful possession of non-controlled substance 28 prescription medications and devices in the first 29 degree. 30 § 219.00 Definitions. 31 The following definitions are applicable to this article: 32 1. "Prescription medication or device" means any article for which a 33 prescription is required in order to be lawfully sold, delivered or 34 distributed by any person authorized by law to engage in the practice of 35 the profession of pharmacy. 36 2. "Prescription" means a direction or authorization by means of a 37 written prescription form, an electronic prescription or an oral 38 prescription which permits a person to lawfully obtain a prescription 39 medication or device from any person authorized to dispense such 40 prescription medication or device. 41 3. "Controlled substance" means any substance listed in schedule I, 42 II, III, IV or V of section thirty-three hundred six of the public 43 health law other than marihuana, but including concentrated cannabis as 44 defined in paragraph (a) of subdivision four of section thirty-three 45 hundred two of such law. 46 4. The value of a prescription medication or device shall be equiv- 47 alent to the fair market value of such medication or device on the 48 lawful retail market, at about the time and place that the crime is 49 committed. 50 § 219.05 Limitations on application of article. 51 The provisions of this article restricting the unlawful possession of 52 non-controlled substance prescription medications and devices shall not 53 apply: 54 1. to common carriers or to warehousemen, while engaged in lawfully 55 transporting or storing such non-controlled substance prescription medi-A. 10069 7 1 cations and devices, or to any employee of the same acting within the 2 scope of his or her employment; or 3 2. to public officers or their employees in the lawful performance of 4 their official duties requiring the possession or control of such non- 5 controlled substance prescription medications and devices; or 6 3. to temporary incidental possession by employees or agents of 7 persons lawfully entitled to possess such non-controlled substance 8 prescription medications and devices, or by persons whose possession is 9 for the purpose of aiding public officers in performing their official 10 duties; or 11 4. to a duly licensed physician, duly licensed pharmacist or other 12 person authorized to possess or dispense such non-controlled substance 13 prescription medications and devices, acting in good faith in the lawful 14 course of his or her profession; or 15 5. to temporary incidental possession by a person acting in good faith 16 who reasonably believes that he or she is assisting another person to 17 obtain a non-controlled substance prescription medication or device that 18 has been lawfully prescribed to that other person. 19 § 219.10 Unlawful possession of non-controlled substance prescription 20 medications and devices in the fifth degree. 21 A person is guilty of unlawful possession of non-controlled substance 22 prescription medications and devices in the fifth degree when such 23 person knowingly possesses one or more non-controlled substance 24 prescription medications or devices which were not lawfully prescribed 25 to him or her, under circumstances evincing an intent to sell the same; 26 and 27 1. The aggregate value of such non-controlled substance prescription 28 medications and devices exceeds two hundred dollars; or 29 2. He or she possesses twenty or more pills, tablets or capsules of 30 such non-controlled substance prescription medications and devices. 31 Unlawful possession of non-controlled substance prescription medica- 32 tions and devices in the fifth degree is a class A misdemeanor. 33 § 219.15 Unlawful possession of non-controlled substance prescription 34 medications and devices in the fourth degree. 35 A person is guilty of unlawful possession of non-controlled substance 36 prescription medications and devices in the fourth degree when he or she 37 knowingly and unlawfully possesses one or more non-controlled substance 38 prescription medications and devices which were not lawfully prescribed 39 to him or her; and 40 1. The aggregate value of such non-controlled substance prescription 41 medications and devices exceeds five hundred dollars; or 42 2. He or she possesses fifty or more pills, tablets or capsules of 43 such non-controlled substance prescription medications and devices; or 44 3. He or she possesses a non-controlled substance prescription medica- 45 tion or device with an intent to sell it; or 46 4. He or she commits the crime of unlawful possession of non-cont- 47 rolled prescription medications and devices in the fifth degree, and has 48 previously been convicted of an offense defined in this article. 49 Unlawful possession of non-controlled substance prescription medica- 50 tions and devices in the fourth degree is a class E felony. 51 § 219.20 Unlawful possession of non-controlled substance prescription 52 medications and devices in the third degree. 53 A person is guilty of unlawful possession of non-controlled substance 54 prescription medications and devices in the third degree when he or she 55 knowingly and unlawfully possesses one or more non-controlled substanceA. 10069 8 1 prescription medications and devices which were not lawfully prescribed 2 to him or her; and 3 1. The aggregate value of such non-controlled substance prescription 4 medications and devices exceeds fifteen hundred dollars; or 5 2. He or she possesses one hundred fifty or more pills, tablets or 6 capsules of such non-controlled substance prescription medications and 7 devices. 8 Unlawful possession of non-controlled substance prescription medica- 9 tions and devices in the third degree is a class D felony. 10 § 219.25 Unlawful possession of non-controlled substance prescription 11 medications and devices in the second degree. 12 A person is guilty of unlawful possession of non-controlled substance 13 prescription medications and devices in the second degree when he or she 14 knowingly and unlawfully possesses one or more non-controlled substance 15 prescription medications and devices which were not lawfully prescribed 16 to him or her; and 17 1. The aggregate value of such non-controlled substance prescription 18 medications and devices exceeds ten thousand dollars; or 19 2. He or she possesses one thousand or more pills, tablets or capsules 20 of such non-controlled substance prescription medications and devices. 21 Unlawful possession of non-controlled substance prescription medica- 22 tions and devices in the second degree is a class C felony. 23 § 219.30 Unlawful possession of non-controlled substance prescription 24 medications and devices in the first degree. 25 A person is guilty of unlawful possession of non-controlled substance 26 prescription medications and devices in the first degree when he or she 27 knowingly and unlawfully possesses one or more non-controlled substance 28 prescription medications and devices which were not lawfully prescribed 29 to him or her; and 30 1. The aggregate value of such non-controlled substance prescription 31 medications and devices exceeds one hundred thousand dollars; or 32 2. He or she possesses ten thousand or more pills, tablets or capsules 33 of such non-controlled substance prescription medications and devices. 34 Unlawful possession of non-controlled substance prescription medica- 35 tions and devices in the first degree is a class B felony. 36 § 10. This act shall take effect on the ninetieth day after it shall 37 have become a law.