2017 ORS 431A.865¹
Disclosure of information
  • corrections
  • records
  • immunity from liability

(1)(a) Except as provided under subsection (2) of this section, prescription monitoring information submitted under ORS 431A.860 (Duty of pharmacy to report to program) to the prescription monitoring program established in ORS 431A.855 (Establishment of program):

(A) Is protected health information under ORS 192.553 (Policy for protected health information) to 192.581 (Allowed retention or disclosure of genetic information).

(B) Is confidential and not subject to disclosure under ORS 192.311 (Definitions for ORS 192.311 to 192.478) to 192.478 (Exemption for Judicial Department).

(b) Except as provided under subsection (2)(a)(H) of this section, prescription monitoring information submitted under ORS 431A.860 (Duty of pharmacy to report to program) to the prescription monitoring program may not be used to evaluate a practitioner’s professional practice.

(2)(a) To the extent that the law or regulation is applicable to the prescription monitoring program, if a disclosure of prescription monitoring information, other than the sex of a patient for whom a drug was prescribed, complies with the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and regulations adopted under that law, including 45 C.F.R. parts 160 and 164, federal alcohol and drug treatment confidentiality laws and regulations, including 42 C.F.R. part 2, and state health and mental health confidentiality laws, including ORS 179.505 (Disclosure of written accounts by health care services provider), 192.517 (Access to records of individual with disability or individual with mental illness) and 192.553 (Policy for protected health information) to 192.581 (Allowed retention or disclosure of genetic information), the Oregon Health Authority shall disclose the information:

(A) To a practitioner or pharmacist, or, if a practitioner or pharmacist authorizes the authority to disclose the information to a member of the practitioner’s or pharmacist’s staff, to a member of the practitioner’s or pharmacist’s staff. If a practitioner or pharmacist authorizes disclosing the information to a member of the practitioner’s or pharmacist’s staff under this subparagraph, the practitioner or pharmacist remains responsible for the use or misuse of the information by the staff member. To receive information under this subparagraph, or to authorize the receipt of information by a staff member under this subparagraph, a practitioner or pharmacist must certify that the requested information is for the purpose of evaluating the need for or providing medical or pharmaceutical treatment for a patient to whom the practitioner or pharmacist anticipates providing, is providing or has provided care.

(B) To a medical director or pharmacy director, or, if a medical director or pharmacy director authorizes the authority to disclose the information to a member of the medical director’s or pharmacy director’s staff, to a member of the medical director’s or pharmacy director’s staff. If a medical director or pharmacy director authorizes disclosing the information to a member of the medical director’s or pharmacy director’s staff under this subparagraph, the medical director or pharmacy director remains responsible for the use or misuse of the information by the staff member. To receive information under this subparagraph, or to authorize the receipt of information by a staff member under this subparagraph, a medical director must certify that the requested information is for the purposes of overseeing the operations of a hospital, health care clinic or system of hospitals or health care clinics and ensuring the delivery of quality health care within the hospital, clinic or system. To receive information under this subparagraph, or to authorize the receipt of information by a staff member under this subparagraph, a pharmacy director must certify that the requested information is for the purposes of overseeing the operations of a pharmacy or system of pharmacies and ensuring the delivery of quality pharmaceutical care within the pharmacy or system.

(C) In accordance with subparagraphs (A) and (B) of this paragraph, to an individual described in subparagraphs (A) and (B) of this paragraph through a health information technology system that is used by the individual to access information about patients if:

(i) The individual is authorized to access the information in the health information technology system;

(ii) The information is not permanently retained in the health information technology system, except for purposes of conducting audits and maintaining patient records; and

(iii) The health information technology system meets any privacy and security requirements and other criteria, including criteria required by the federal Health Insurance Portability and Accountability Act, established by the authority by rule.

(D) To a practitioner in a form that catalogs all prescription drugs prescribed by the practitioner according to the number assigned to the practitioner by the Drug Enforcement Administration of the United States Department of Justice.

(E) To the Chief Medical Examiner or designee of the Chief Medical Examiner, for the purpose of conducting a medicolegal investigation or autopsy.

(F) To designated representatives of the authority or any vendor or contractor with whom the authority has contracted to establish or maintain the electronic system established under ORS 431A.855 (Establishment of program).

(G) Pursuant to a valid court order based on probable cause and issued at the request of a federal, state or local law enforcement agency engaged in an authorized drug-related investigation involving a person to whom the requested information pertains.

(H) To a health professional regulatory board that certifies in writing that the requested information is necessary for an investigation related to licensure, license renewal or disciplinary action involving the applicant, licensee or registrant to whom the requested information pertains.

(I) Pursuant to an agreement entered into under ORS 431A.869 (Sharing and use of program information with other states).

(b) The authority may disclose information from the prescription monitoring program that does not identify a patient, practitioner or drug outlet:

(A) For educational, research or public health purposes;

(B) For the purpose of educating practitioners about the prescribing of opioids and other controlled substances;

(C) To a health professional regulatory board;

(D) To a local public health authority, as defined in ORS 431.003 (Definitions); or

(E) To officials of the authority who are conducting special epidemiologic morbidity and mortality studies in accordance with ORS 413.196 (Confidentiality and inadmissibility of information obtained in connection with epidemiologic morbidity and mortality studies) and rules adopted under ORS 431.001 (Findings) to 431.550 (Power of Oregon Health Authority to collect information from local public health administrators) and 431.990 (Penalties).

(c) The authority shall disclose information relating to a patient maintained in the electronic system established under ORS 431A.855 (Establishment of program) to that patient at no cost to the patient within 10 business days after the authority receives a request from the patient for the information.

(d)(A) A patient may request the authority to correct any information related to the patient that is maintained in the electronic system established under ORS 431A.855 (Establishment of program) that is erroneous. The authority shall grant or deny a request to correct information within 10 business days after the authority receives the request. If a request to correct information cannot be granted because the error occurred at the pharmacy where the information was inputted, the authority shall inform the patient that the information cannot be corrected because the error occurred at the pharmacy.

(B) If the authority denies a patient’s request to correct information under this paragraph, or fails to grant a patient’s request to correct information under this paragraph within 10 business days after the authority receives the request, the patient may appeal the denial or failure to grant the request. Upon receiving notice of an appeal under this subparagraph, the authority shall conduct a contested case hearing as provided in ORS chapter 183. Notwithstanding ORS 183.450 (Evidence in contested cases), the authority has the burden in the contested case hearing of establishing that the information is correct.

(e) The information in the prescription monitoring program may not be used for any commercial purpose.

(f) In accordance with ORS 192.553 (Policy for protected health information) to 192.581 (Allowed retention or disclosure of genetic information) and federal laws and regulations related to privacy, any person authorized to prescribe or dispense a prescription drug who is entitled to access a patient’s prescription monitoring information may discuss the information with or release the information to other health care providers involved with the patient’s care for the purpose of providing safe and appropriate care coordination.

(3)(a) The authority shall maintain records of the information disclosed through the prescription monitoring program including:

(A) The identity of each person who requests or receives information from the program and any organization the person represents;

(B) The information released to each person or organization; and

(C) The date and time the information was requested and the date and time the information was provided.

(b) Records maintained as required by this subsection may be reviewed by the Prescription Monitoring Program Advisory Commission.

(4) Information in the prescription monitoring program that identifies an individual patient must be removed no later than three years from the date the information is entered into the program.

(5) The authority shall notify the Attorney General and each individual affected by an improper disclosure of information from the prescription monitoring program of the disclosure.

(6)(a) If the authority or a person or entity required to report or authorized to receive or release prescription information under this section violates this section or ORS 431A.860 (Duty of pharmacy to report to program) or 431A.870 (Duty of pharmacist to fill prescription), a person injured by the violation may bring a civil action against the authority, person or entity and may recover damages in the amount of $1,000 or actual damages, whichever is greater.

(b) Notwithstanding paragraph (a) of this subsection, the authority and a person or entity required to report or authorized to receive or release prescription information under this section are immune from civil liability for violations of this section or ORS 431A.860 (Duty of pharmacy to report to program) or 431A.870 (Duty of pharmacist to fill prescription) unless the authority, person or entity acts with malice, criminal intent, gross negligence, recklessness or willful intent.

(7) Nothing in ORS 431A.855 (Establishment of program) to 431A.900 (Civil penalty for violation of ORS 431A.855 to 431A.900) requires a practitioner or pharmacist who prescribes or dispenses a prescription drug to obtain information about a patient from the prescription monitoring program. A practitioner or pharmacist who prescribes or dispenses a prescription drug may not be held liable for damages in any civil action on the basis that the practitioner or pharmacist did or did not request or obtain information from the prescription monitoring program.

(8) The authority shall, at regular intervals, ensure compliance of a health information technology system described in subsection (2) of this section with the privacy and security requirements and other criteria established by the authority under subsection (2) of this section. [Formerly 431.966; 2016 c.100 §1; 2017 c.151 §24; 2017 c.683 §14]

Notes of Decisions

Federal Controlled Substances Act, 21 U.S.C. 876, preempts require­ment under this sec­tion that U.S. Drug Enforce­ment Administra­tion must have order from federal court before enforcing administrative investigative sub­poe­na compelling Oregon Health Authority to disclose prescrip­tion records. Oregon Prescrip­tion Drug Monitoring Program v. United States DEA, 860 F3d 1228 (9th Cir. 2017)

1 Legislative Counsel Committee, CHAPTER 431A—Public Health Programs and Activities, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors431A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 431A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano431A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.