KRS § 218A.390 — KY Code / Title XVIII / Chapter 218A / Section 218A.390
218A.390 Prescription Monitoring Program Compact
Status: in_force

218A.390 Prescription Monitoring Program Compact.

The Prescription Monitoring Program compact is hereby enacted into law and entered

into with all other jurisdictions legally joining therein in the form substantially as follows:

ARTICLE I

PURPOSE

The purpose of this interstate compact is to provide a mechanism for state prescription

monitoring programs to securely share prescription data to improve public health and

safety. This interstate compact is intended to:

A. Enhance the ability of state prescription monitoring programs, in accordance with

state laws, to provide an efficient and comprehensive tool for:

1. Practitioners to monitor patients and support treatment decisions;

2. Law enforcement to conduct diversion investigations where authorized by

state law;

3. Regulatory agencies to conduct investigations or other appropriate reviews

where authorized by state law; and

4. Other uses of prescription drug data authorized by state law for purposes of

curtailing drug abuse and diversion; and

B. Provide a technology infrastructure to facilitate secure data transmission.

ARTICLE II

DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

A. "Authentication" means the process of verifying the identity and credentials of a

person before authorizing access to prescription data;

B. "Authorize" means the process by which a person is granted access privileges to

prescription data;

C. "Bylaws" means those bylaws established by the interstate commission pursuant to

Article VIII for its governance, or for directing or controlling its actions and

conduct;

D. "Commissioner" means the voting representative appointed by each member state

pursuant to Article VI of this compact;

E. "Interstate commission" or "commission" means the interstate commission created

pursuant to Article VI of this compact;

F. "Member state" means any state that has adopted a prescription monitoring program

and has enacted the enabling compact legislation;

G. "Practitioner" means a person licensed, registered or otherwise permitted to

prescribe or dispense a prescription drug;

H. "Prescription data" means data transmitted by a prescription monitoring program

that contains patient, prescriber, dispenser, and prescription drug information;

I. "Prescription drug" means any drug required to be reported to a state prescription

monitoring program and which includes but is not limited to substances listed in the

federal Controlled Substances Act;

J. "Prescription Monitoring Program" means a program that collects, manages,

analyzes, and provides prescription data under the auspices of a state;

K. "Requestor" means a person authorized by a member state who has initiated a

request for prescription data;

L. "Rule" means a written statement by the interstate commission promulgated

pursuant to Article VII of this compact that is of general applicability, implements,

interprets or prescribes a policy or provision of the compact, or an organizational,

procedural, or practice requirement of the commission, and has the force and effect

of statutory law in a member state, and includes the amendment, repeal, or

suspension of an existing rule;

M. "State" means any state, commonwealth, district, or territory of the United States;

N. "Technology infrastructure" means the design, deployment, and use of both

individual technology based components and the systems of such components to

facilitate the transmission of information and prescription data among member

states; and

O. "Transmission" means the release, transfer, provision, or disclosure of information

or prescription data among member states.

ARTICLE III

AUTHORIZED USES AND RESTRICTIONS ON THE PRESCRIPTION DATA

A. Under the Prescription Monitoring Program compact a member state:

1. Retains its authority and autonomy over its prescription monitoring program

and prescription data in accordance with its laws, regulations and policies;

2. May provide, restrict or deny prescription data to a requestor of another state

in accordance with its laws, regulations and policies;

3. May provide, restrict or deny prescription data received from another state to a

requestor within that state; and

4. Has the authority to determine which requestors shall be authorized.

B. Prescription data obtained by a member state pursuant to this compact shall have

the following restrictions:

1. Be used solely for purposes of providing the prescription data to a requestor;

and

2. Not be stored in the stateâ€™s prescription monitoring program database,

except for stored images, nor in any other database.

C. A state may limit the categories of requestors of another member state that will

receive prescription data.

D. The commission shall promulgate rules establishing standards for requestor

authentication.

1. Every member state shall authenticate requestors according to the rules

established by the commission.

2. A member state may authorize its requestors to request prescription data from

another member state only after such requestor has been authenticated.

3. A member state that becomes aware of a requestor who violated the laws or

regulations governing the appropriate use of prescription data shall notify the

state that transmitted the prescription data.

ARTICLE IV

TECHNOLOGY AND SECURITY

A. The commission shall establish security requirements through rules for the

transmission of prescription data.

B. The commission shall foster the adoption of open (vendor- and technology-neutral)

standards for the technology infrastructure.

C. The commission shall be responsible for acquisition and operation of the

technology infrastructure.

ARTICLE V

FUNDING

A. The commission, through its member states, shall be responsible to provide for the

payment of the reasonable expenses for establishing, organizing and administering

the operations and activities of the interstate compact.

B. The interstate commission may levy on and collect annual dues from each member

state to cover the cost of operations and activities of the interstate commission and

its staff which must be in a total amount sufficient to cover the interstate

commissionâ€™s annual budget as approved each year. The aggregate annual dues

amount shall be allocated in an equitable manner and may consist of a fixed fee

component as well as a variable fee component based upon a formula to be

determined by the interstate commission, which shall promulgate a rule binding

upon all member states. Such a formula shall take into account factors including,

but not limited to the total number of practitioners or licensees within a member

state. Fees established by the commission may be recalculated and assessed on an

annual basis.

C. Notwithstanding the above or any other provision of law, the interstate commission

may accept non-state funding, including grants, awards and contributions to offset,

in whole or in part, the costs of the annual dues required under Article V, Section B.

D. The interstate commission shall not incur obligations of any kind prior to securing

the funds adequate to meet the same; nor shall the interstate commission pledge the

credit of any of the member states, except by and with the authority of the member

states.

E. The interstate commission shall keep accurate accounts of all receipts and

disbursements subject to the audit and accounting procedures established under its

bylaws. All receipts and disbursements of funds handled by the interstate

commission shall be audited annually by a certified or licensed public accountant

and the report of the audit shall be included in and become part of the annual report

of the interstate commission.

ARTICLE VI

INTERSTATE COMMISSION

The member states hereby create the Interstate Prescription Monitoring Program

Commission. The Prescription Monitoring Program compact shall be governed by an

interstate commission comprised of the member states and not by a third-party group or

federal agency. The activities of the commission are the formation of public policy and

are a discretionary state function.

A. The commission shall be a body corporate and joint agency of the member states

and shall have all the responsibilities, powers and duties set forth herein, and such

additional powers as may be conferred upon it by a subsequent concurrent action of

the respective legislatures of the member states in accordance with the terms of this

compact.

B. The commission shall consist of one (1) voting representative from each member

state who shall be that stateâ€™s appointed compact commissioner and who is

empowered to determine statewide policy related to matters governed by this

compact. The compact commissioner shall be a policymaker within the agency that

houses the stateâ€™s Prescription Monitoring Program.

C. In addition to the state commissioner, the state shall appoint a non-voting advisor

who shall be a representative of the state Prescription Monitoring Program.

D. In addition to the voting representatives and non-voting advisor of each member

state, the commission may include persons who are not voting representatives, but

who are members of interested organizations as determined by the commission.

E. Each member state represented at a meeting of the commission is entitled to one

vote. A majority of the member states shall constitute a quorum for the transaction

of business, unless a larger quorum is required by the bylaws of the commission. A

representative shall not delegate a vote to another member state. In the event the

compact commissioner is unable to attend a meeting of the commission, the

appropriate appointing authority may delegate voting authority to another person

from their state for a specified meeting. The bylaws may provide for meetings of the

commission to be conducted by electronic communication.

F. The commission shall meet at least once each calendar year. The chairperson may

call additional meetings and, upon the request of a simple majority of the

compacting states, shall call additional meetings.

G. The commission shall establish an executive committee, which shall include

officers, members, and others as determined by the bylaws. The executive

committee shall have the power to act on behalf of the commission, with the

exception of rulemaking. During periods when the commission is not in session the

executive committee shall oversee the administration of the compact, including

enforcement and compliance with the provisions of the compact, its bylaws and

rules, and other such duties as deemed necessary.

H. The commission shall maintain a robust committee structure for governance (i.e.,

policy, compliance, education, technology, etc.) and shall include specific

opportunities for stakeholder input.

I. The commissionâ€™s bylaws and rules shall establish conditions and procedures

under which the commission shall make its information and official records

available to the public for inspection or copying. The commission may exempt from

disclosure information or official records that would adversely affect personal

privacy rights or proprietary interests.

J. The commission shall provide public notice of all meetings and all meetings shall

be open to the public, except as set forth in the rules or as otherwise provided in the

compact. The commission may close a meeting, or portion thereof, where it

determines by a two-thirds (2/3) vote of the members present that an open meeting

would be likely to:

1. Relate solely to the commissionâ€™s internal personnel practices and

procedures;

2. Discuss matters specifically exempted from disclosure by federal and state

statute;

3. Discuss trade secrets or commercial or financial information which is

privileged or confidential;

4. Involve accusing a person of a crime, or formally censuring a person;

5. Discuss information of a personal nature where disclosure would constitute a

clearly unwarranted invasion of personal privacy;

6. Discuss investigative records compiled for law enforcement purposes; or

7. Specifically relate to the commissionâ€™s participation in a civil action or

other legal proceeding.

K. For a meeting, or portion of a meeting, closed pursuant to this provision, the

commissionâ€™s legal counsel or designee shall certify that the meeting may be

closed and shall reference each relevant exemptive provision. The commission shall

keep minutes which shall fully and clearly describe all matters discussed in a

meeting and shall provide a full and accurate summary of actions taken, and the

reasons therefore, including a description of the views expressed and the record of a

roll call vote. All documents considered in connection with an action shall be

identified in such minutes. All minutes and documents of a closed meeting shall

remain under seal, subject to release by a majority vote of the commission.

ARTICLE VII

POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The commission shall have the following powers and duties:

A. To oversee and maintain the administration of the technology infrastructure;

B. To promulgate rules and take all necessary actions to effect the goals, purposes and

obligations as enumerated in this compact, provided that no member state shall be

required to create an advisory committee. The rules shall have the force and effect

of statutory law and shall be binding in the member states to the extent and in the

manner provided in this compact;

C. To establish a process for member states to notify the commission of changes to a

stateâ€™s prescription monitoring program statutes, regulations, or policies. This

applies only to changes that would affect the administration of the compact;

D. To issue, upon request of a member state, advisory opinions concerning the

meaning or interpretation of the interstate compact, its bylaws, rules and actions;

E. To enforce compliance with the compact provisions, the rules promulgated by the

interstate commission, and the bylaws, using all necessary and proper means,

including but not limited to the use of judicial process;

F. To establish and maintain one (1) or more offices;

G. To purchase and maintain insurance and bonds;

H. To borrow, accept, hire or contract for personnel or services;

I. To establish and appoint committees including, but not limited to, an executive

committee as required by Article VI, Section G, which shall have the power to act

on behalf of the interstate commission in carrying out its powers and duties

hereunder;

J. To elect or appoint such officers, attorneys, employees, agents, or consultants, and

to fix their compensation, define their duties and determine their qualifications; and

to establish the interstate commissionâ€™s personnel policies and programs

relating to conflicts of interest, rates of compensation, and qualifications of

personnel;

K. To seek and accept donations and grants of money, equipment, supplies, materials,

and services, and to utilize or dispose of them;

L. To lease, purchase, accept contributions or donations of, or otherwise to own, hold,

improve or use any property, real, personal, or mixed;

M. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose

of any property, real, personal or mixed;

N. To establish a budget and make expenditures;

O. To adopt a seal and bylaws governing the management and operation of the

interstate commission;

P. To report annually to the legislatures, Governors and Attorneys General of the

member states concerning the activities of the interstate commission during the

preceding year. Such reports shall also include any recommendations that may have

been adopted by the interstate commission and shall be made publically available;

Q. To coordinate education, training and public awareness regarding the compact, its

implementation and operation;

R. To maintain books and records in accordance with the bylaws;

S. To perform such functions as may be necessary or appropriate to achieve the

purposes of this compact; and

T. To provide for dispute resolution among member states.

ARTICLE VIII

ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

A. The interstate commission shall, by a majority of the members present and voting,

within twelve (12) months after the first interstate commission meeting, adopt

bylaws to govern its conduct as may be necessary or appropriate to carry out the

purposes of the compact, including but not limited to:

1. Establishing the fiscal year of the interstate commission;

2. Establishing an executive committee, and such other committees as may be

necessary for governing any general or specific delegation of authority or

function of the interstate commission;

3. Providing procedures for calling and conducting meetings of the interstate

commission, and ensuring reasonable notice of each such meeting;

4. Establishing the titles and responsibilities of the officers and staff of the

interstate commission; and

5. Providing a mechanism for concluding the operations of the interstate

commission and the return of surplus funds that may exist upon the

termination of the compact after the payment and reserving of all of its debts

and obligations.

B. The interstate commission shall, by a majority of the members present, elect

annually from among its members a chairperson, a vice-chairperson, and a treasurer,

each of whom shall have such authority and duties as may be specified in the

bylaws. The chairperson or, in the chairpersonâ€™s absence or disability, the vice-

chairperson, shall preside at all meetings of the interstate commission. The officers

so elected shall serve without compensation or remuneration from the interstate

commission; provided that, subject to the availability of budgeted funds, the officers

shall be reimbursed for ordinary and necessary costs and expenses incurred by them

in the performance of their responsibilities as officers of the interstate commission.

C. Executive Committee, Officers and Staff

1. The executive committee shall have such authority and duties as may be set

forth in the bylaws, including but not limited to:

a. Managing the affairs of the interstate commission in a manner consistent

with the bylaws and purposes of the interstate commission;

b. Overseeing an organizational structure within, and appropriate

procedures for the interstate commission to provide for the

administration of the compact; and

c. Planning, implementing, and coordinating communications and

activities with other state, federal and local government organizations in

order to advance the purpose of the interstate commission.

2. The executive committee may, subject to the approval of the interstate

commission, appoint or retain an executive director for such period, upon such

terms and conditions and for such compensation, as the interstate commission

may deem appropriate. The executive director shall serve as secretary to the

interstate commission, but shall not be a member of the interstate commission.

The executive director shall hire and supervise such other persons as may be

authorized by the interstate commission.

D. The interstate commissionâ€™s executive director and its employees shall be

immune from suit and liability, either personally or in their official capacity, for a

claim for damage to or loss of property or personal injury or other civil liability

caused or arising out of or relating to an actual or alleged act, error, or omission that

occurred, or that such person had a reasonable basis for believing occurred, within

the scope of interstate commission employment, duties, or responsibilities;

provided, that such person shall not be protected from suit or liability for damage,

loss, injury, or liability caused by the intentional or willful and wanton misconduct

of such person.

1. The liability of the interstate commissionâ€™s executive director and

employees or interstate commission representatives, acting within the scope of

such person's employment or duties for acts, errors, or omissions occurring

within such personâ€™s state may not exceed the limits of liability set forth

under the constitution and laws of that state for state officials, employees, and

agents. The interstate commission is considered to be an instrumentality of the

states for the purposes of any such action. Nothing in this subsection shall be

construed to protect such person from suit or liability for damage, loss, injury,

or liability caused by the intentional or willful and wanton misconduct of such

person.

2. The interstate commission shall defend the executive director, its employees,

and subject to the approval of the Attorney General or other appropriate legal

counsel of the member state represented by an interstate commission

representative, shall defend such interstate commission representative in any

civil action seeking to impose liability arising out of an actual or alleged act,

error or omission that occurred within the scope of interstate commission

employment, duties or responsibilities, or that the defendant had a reasonable

basis for believing occurred within the scope of interstate commission

employment, duties, or responsibilities, provided that the actual or alleged act,

error, or omission did not result from intentional or willful and wanton

misconduct on the part of such person.

3. To the extent not covered by the state involved, member state, or the interstate

commission, the representatives or employees of the interstate commission

shall be held harmless in the amount of a settlement or judgment, including

attorneyâ€™s fees and costs, obtained against such persons arising out of an

actual or alleged act, error, or omission that occurred within the scope of

interstate commission employment, duties, or responsibilities, or that such

persons had a reasonable basis for believing occurred within the scope of

interstate commission employment, duties, or responsibilities, provided that

the actual or alleged act, error, or omission did not result from intentional or

willful and wanton misconduct on the part of such persons.

ARTICLE IX

RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

A. Rulemaking Authority - The interstate commission shall promulgate reasonable

rules in order to effectively and efficiently achieve the purposes of this compact.

Notwithstanding the foregoing, in the event the interstate commission exercises its

rulemaking authority in a manner that is beyond the scope of the purposes of this

compact, or the powers granted hereunder, then such an action by the interstate

commission shall be invalid and have no force or effect. Any rules promulgated by

the commission shall not override the stateâ€™s authority to govern prescription

drugs or each stateâ€™s Prescription Monitoring Program.

B. Rulemaking Procedure - Rules shall be made pursuant to a rulemaking process that

substantially conforms to the "Model State Administrative Procedure Act," of 1981

Act, Uniform Laws Annotated, Vol. 15, p.1 (2000) as amended, as may be

appropriate to the operations of the interstate commission.

C. Not later than thirty (30) days after a rule is promulgated, any person may file a

petition for judicial review of the rule; provided, that the filing of such a petition

shall not stay or otherwise prevent the rule from becoming effective unless the court

finds that the petitioner has a substantial likelihood of success. The court shall give

deference to the actions of the interstate commission consistent with applicable law

and shall not find the rule to be unlawful if the rule represents a reasonable exercise

of the interstate commission's authority.

ARTICLE X

OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION

A. Oversight

1. The executive, legislative and judicial branches of state government in each

member state shall enforce this compact and shall take all actions necessary

and appropriate to effectuate the compactâ€™s purposes and intent. The

provisions of this compact and the rules promulgated hereunder shall have

standing as statutory law but, shall not override the stateâ€™s authority to

govern prescription drugs or the stateâ€™s Prescription Monitoring Program.

2. All courts shall take judicial notice of the compact and the rules in any judicial

or administrative proceeding in a member state pertaining to the subject

matter of this compact which may affect the powers, responsibilities or actions

of the interstate commission.

3. The interstate commission shall be entitled to receive all service of process in

any such proceeding, and shall have standing to intervene in the proceeding

for all purposes. Failure to provide service of process to the interstate

commission shall render a judgment or order void as to the interstate

commission, this compact or promulgated rules.

B. Default, Technical Assistance, Suspension and Termination - If the interstate

commission determines that a member state has defaulted in the performance of its

obligations or responsibilities under this compact, or the bylaws or promulgated

rules, the interstate commission shall:

1. Provide written notice to the defaulting state and other member states, of the

nature of the default, the means of curing the default and any action taken by

the interstate commission. The interstate commission shall specify the

conditions by which the defaulting state must cure its default.

2. Provide remedial training and specific technical assistance regarding the

default.

3. If the defaulting state fails to cure the default, the defaulting state shall be

terminated from the compact upon an affirmative vote of a majority of the

member states and all rights, privileges and benefits conferred by this compact

shall be terminated from the effective date of termination. A cure of the

default does not relieve the offending state of obligations or liabilities incurred

during the period of the default.

4. Suspension or termination of membership in the compact shall be imposed

only after all other means of securing compliance have been exhausted. Notice

of intent to suspend or terminate shall be given by the interstate commission

to the Governor, the majority and minority leaders of the defaulting state's

legislature, and each of the member states.

5. The state which has been suspended or terminated is responsible for all dues,

obligations and liabilities incurred through the effective date of suspension or

termination including obligations, the performance of which extends beyond

the effective date of suspension or termination.

6. The interstate commission shall not bear any costs relating to any state that

has been found to be in default or which has been suspended or terminated

from the compact, unless otherwise mutually agreed upon in writing between

the interstate commission and the defaulting state.

7. The defaulting state may appeal the action of the interstate commission by

petitioning the United States District Court for the District of Columbia or the

federal district where the interstate commission has its principal offices. The

prevailing party shall be awarded all costs of such litigation including

reasonable attorneyâ€™s fees.

C. Dispute Resolution

1. The interstate commission shall attempt, upon the request of a member state,

to resolve disputes which are subject to the compact and which may arise

among member states.

2. The interstate commission shall promulgate a rule providing for both

mediation and binding dispute resolution as appropriate.

D. Enforcement

1. The interstate commission, in the reasonable exercise of its discretion, shall

enforce the provisions and rules of this compact.

2. The interstate commission, may by majority vote of the members, initiate

legal action in the United States District Court for the District of Columbia or,

at the discretion of the interstate commission, in the federal district where the

interstate commission has its principal offices, to enforce compliance with the

provisions of the compact, its promulgated rules and bylaws, against a

member state in default. The relief sought may include both injunctive relief

and damages. In the event judicial enforcement is necessary the prevailing

party shall be awarded all costs of such litigation including reasonable

attorneyâ€™s fees.

3. The remedies herein shall not be the exclusive remedies of the interstate

commission. The interstate commission may avail itself of any other remedies

available under state law or the regulation of a profession.

ARTICLE XI

MEMBER STATES, EFFECTIVE DATE AND AMENDMENT

A. Any state that has enacted Prescription Monitoring Program legislation through

statute or regulation is eligible to become a member state of this compact.

B. The compact shall become effective and binding upon legislative enactment of the

compact into law by no less than six (6) of the states. Thereafter it shall become

effective and binding on a state upon enactment of the compact into law by that

state. The Governors of non-member states or their designees shall be invited to

participate in the activities of the interstate commission on a non-voting basis prior

to adoption of the compact by all states.

C. The interstate commission may propose amendments to the compact for enactment

by the member states. No amendment shall become effective and binding upon the

interstate commission and the member states unless and until it is enacted into law

by unanimous consent of the member states.

ARTICLE XII

WITHDRAWAL AND DISSOLUTION

A. Withdrawal

1. Once effective, the compact shall continue in force and remain binding upon

each and every member state; provided that a member state may withdraw

from the compact by specifically repealing the statute which enacted the

compact into law.

2. Withdrawal from this compact shall be by the enactment of a statute repealing

the same, but shall not take effect until one (1) year after the effective date of

such statute and until written notice of the withdrawal has been given by the

withdrawing state to the Governor of each other member state.

3. The withdrawing state shall immediately notify the chairperson of the

interstate commission in writing upon the introduction of legislation repealing

this compact in the withdrawing state. The interstate commission shall notify

the other member states of the withdrawing stateâ€™s intent to withdraw

within sixty (60) days of its receipt thereof.

4. The withdrawing state is responsible for all dues, obligations and liabilities

incurred through the effective date of withdrawal, including obligations, the

performance of which extend beyond the effective date of withdrawal.

5. Reinstatement following withdrawal of a member state shall occur upon the

withdrawing state reenacting the compact or upon such later date as

determined by the interstate commission.

B. Dissolution of the Compact

1. This compact shall dissolve effective upon the date of the withdrawal or

default of the member state which reduces the membership in the compact to

one (1) member state.

2. Upon the dissolution of this compact, the compact becomes null and void and

shall be of no further force or effect, and the business and affairs of the

interstate commission shall be concluded and surplus funds shall be

distributed in accordance with the bylaws.

ARTICLE XIII

SEVERABILITY AND CONSTRUCTION

A. The provisions of this compact shall be severable, and if any phrase, clause,

sentence or provision is deemed unenforceable, the remaining provisions of the

compact shall be enforceable.

B. The provisions of this compact shall be liberally construed to effectuate its

purposes.

C. Nothing in this compact shall be construed to prohibit the applicability of other

interstate compacts to which the states are members.

ARTICLE XIV

BINDING EFFECT OF COMPACT AND OTHER LAWS

A. Other Laws

1. Nothing herein prevents the enforcement of any other law of a member state

that is not inconsistent with this compact.

B. Binding Effect of the Compact

1. All lawful actions of the interstate commission, including all rules and bylaws

promulgated by the interstate commission, are binding upon the member

states.

2. All agreements between the interstate commission and the member states are

binding in accordance with their terms.

3. In the event any provision of this compact exceeds the constitutional limits

imposed on the legislature of any member state, such provision shall be

ineffective to the extent of the conflict with the constitutional provision in

question in that member state.