Chapter 961

961.34 History History: 1981 c. 193; 1983 a. 189 s. 329 (18); 1985 a. 146 s. 8; 1995 a. 448 ss. 16 to 19; Stats. 1995 s. 961.34; 2013 a. 267; 2019 a. 68.

961.34 Annotation Reefer Madness: Lighting Up in the Dairyland. Bailey. Wis. Law. Nov. 2014.

961.36 961.36 Controlled substances board duties relating to diversion control and prevention, compliance with controlled substances law and advice and assistance.

961.36(1) (1) The controlled substances board shall regularly prepare and make available to state regulatory, licensing and law enforcement agencies descriptive and analytic reports on the potential for diversion and actual patterns and trends of distribution, diversion and abuse within the state of certain controlled substances the board selects that are listed in s. 961.16, 961.18, 961.20 or 961.22.

961.36(1m) (1m) At the request of the department of safety and professional services or a board, examining board or affiliated credentialing board in the department of safety and professional services, the controlled substances board shall provide advice and assistance in matters related to the controlled substances law to the department or to the board, examining board or affiliated credentialing board in the department making the request for advice or assistance.

961.36(2) (2) The controlled substances board shall enter into written agreements with local, state and federal agencies to improve the identification of sources of diversion and to improve enforcement of and compliance with this chapter and other laws and regulations pertaining to unlawful conduct involving controlled substances. An agreement must specify the roles and responsibilities of each agency that has information or authority to identify, prevent or control drug diversion and drug abuse. The board shall convene periodic meetings to coordinate a state diversion prevention and control program. The board shall assist and promote cooperation and exchange of information among agencies and with other states and the federal government.

961.36(3) (3) The controlled substances board shall evaluate the outcome of its program under this section and shall annually submit a report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (3), on its findings with respect to its effect on distribution and abuse of controlled substances, including recommendations for improving control and prevention of the diversion of controlled substances.

961.36 History History: 1981 c. 200; 1987 a. 186; 1995 a. 305 ss. 2, 3; 1995 a. 448 s. 234; Stats. 1995 s. 961.36; 1997 a. 35 s. 339; 2011 a. 32.

961.37 961.37 Law enforcement duty.

961.37(1) (1) A law enforcement officer shall report as provided in sub. (2) if the law enforcement officer, while acting in an official capacity, does any of the following:

961.37(1)(a) (a) Encounters a situation in which the law enforcement officer reasonably suspects that a violation of this chapter involving a monitored prescription drug, as defined in s. 961.385 (1) (ag), is occurring or has occurred.

961.37(1)(b) (b) Encounters an individual who the law enforcement officer believes is undergoing or has immediately prior experienced an opioid-related drug overdose, as defined in s. 256.40 (1) (d), or a deceased individual who the law enforcement officer believes died as a result of using a narcotic drug.

961.37(1)(c) (c) Receives a report of a stolen controlled-substance prescription.

961.37(2) (2) A law enforcement officer under sub. (1) shall report to the law enforcement agency that employs him or her all of the following:

961.37(2)(a) (a) The name and date of birth of all of the following, if applicable:

961.37(2)(a)1. 1. The individual who is suspected of violating this chapter.

961.37(2)(a)2. 2. The individual who experienced an opioid-related drug overdose.

961.37(2)(a)3. 3. The individual who died as a result of using a narcotic drug.

961.37(2)(a)4. 4. The individual who filed the report of a stolen controlled-substance prescription.

961.37(2)(a)5. 5. The individual for whom a prescription drug related to an event under subd. 1., 2., 3., or 4. was prescribed.

961.37(2)(b) (b) The name of the prescribing practitioner, the prescription number, and the name of the drug as it appears on the prescription order or prescription medicine container if a prescription medicine container was in the vicinity of the suspected violation, drug overdose, or death or if a controlled-substance prescription was reported stolen.

961.37(3) (3) 

961.37(3)(a) (a) The law enforcement agency receiving the report under sub. (2) shall, except as provided under par. (b), submit notice of the suspected violation of this chapter, the opioid-related drug overdose, the death as a result of using a narcotic drug, or the report of a stolen controlled-substance prescription, and the information reported under sub. (2) to the prescription drug monitoring program.

961.37(3)(b) (b) If a law enforcement agency determines that submitting any information under par. (a) would interfere with an active criminal investigation, the law enforcement agency may postpone the action until the investigation concludes.

961.37 History History: 2015 a. 268.

961.38 961.38 Prescriptions.

961.38(1g) (1g) In this section, “medical treatment” includes dispensing or administering a narcotic drug for pain, including intractable pain.

961.38(1n) (1n) 

961.38(1n)(a) (a) A pharmacy or physician approved under s. 961.34 (2) may dispense cannabidiol products as a treatment for a medical condition.

961.38(1n)(b) (b) A physician licensed under s. 448.04 (1) (a) may issue an individual a certification, as defined in s. 961.32 (2m) (a), stating that the individual possesses a cannabidiol product to treat a medical condition.

961.38(1r) (1r) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance included in schedule II may be dispensed without the written hard copy or electronic prescription of a practitioner.

961.38(2) (2) In emergency situations, as defined by rule of the pharmacy examining board, schedule II drugs may be dispensed upon an oral prescription of a practitioner, reduced promptly to a written hard copy or electronic record and filed by the pharmacy. Prescriptions shall be retained in conformity with rules of the pharmacy examining board promulgated under s. 961.31. No prescription for a schedule II substance may be refilled.

961.38(3) (3) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug, shall not be dispensed without a written, oral or electronic prescription of a practitioner. The prescription shall not be filled or refilled except as designated on the prescription and in any case not more than 6 months after the date thereof, nor may it be refilled more than 5 times, unless renewed by the practitioner.

961.38(4) (4) 

961.38(4)(a) (a) A substance included in schedule V may be distributed or dispensed only for a medical purpose, including medical treatment or authorized research.

961.38(4)(b) (b) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a substance specified in s. 961.22 (2) shall not be dispensed without a written, oral, or electronic prescription of a practitioner.

961.38(4g) (4g) A practitioner may dispense or deliver a controlled substance to or for an individual or animal only for medical treatment or authorized research in the ordinary course of that practitioner’s profession.

961.38(4r) (4r) A pharmacist is immune from any civil or criminal liability and from discipline under s. 450.10 for any act taken by the pharmacist in reliance on a reasonable belief that an order purporting to be a prescription was issued by a practitioner in the usual course of professional treatment or in authorized research.

961.38(5) (5) No practitioner shall prescribe, orally, electronically or in writing, or take without a prescription a controlled substance included in schedule I, II, III or IV for the practitioner’s own personal use.

961.38 History History: 1971 c. 219; 1975 c. 190, 421; 1977 c. 203; 1995 a. 448 ss. 235 to 240, 483 to 485; Stats. 1995 s. 961.38; 1997 a. 27; 2011 a. 159; 2013 a. 267; 2017 a. 4, 25; 2019 a. 68.

961.38 Annotation Reefer Madness: Lighting Up in the Dairyland. Bailey. Wis. Law. Nov. 2014.

961.385 961.385 Prescription drug monitoring program.

961.385(1) (1) In this section:

961.385(1)(a) (a) “Administer” means the direct application of a monitored prescription drug, whether by injection, ingestion, or any other means, to the body of a patient by any of the following:

961.385(1)(a)1. 1. A practitioner or his or her agent.

961.385(1)(a)2. 2. A patient at the direction of a practitioner.

961.385(1)(a)3. 3. A pharmacist.

961.385(1)(ab) (ab) “Agent” means an authorized person who acts on behalf of or at the direction of another person.

961.385(1)(ac) (ac) “Board” means the controlled substances board.

961.385(1)(ad) (ad) “Business day” means any day on which the offices of the department of safety and professional services are open.

961.385(1)(ae) (ae) “Deliver” or “delivery” means the actual, constructive, or attempted transfer of a monitored prescription drug from one person to another.

961.385(1)(af) (af) “Dispense” means to deliver a monitored prescription drug pursuant to the lawful prescription order of a practitioner, including the compounding, packaging, or labeling necessary to prepare the monitored prescription drug for delivery.

961.385(1)(ag) (ag) “Monitored prescription drug” means a substance identified in s. 961.16, 961.18, 961.20, or 961.22 or a drug identified by the board by rule as having a substantial potential for abuse.

961.385(1)(aj) (aj) “Patient” means an individual or animal for whom a monitored prescription drug is prescribed or to whom a monitored prescription drug is dispensed or administered.

961.385(1)(aL) (aL) “Pharmacist” means a person licensed by the pharmacy examining board under s. 450.03 or 450.05 or licensed in another state and recognized by this state as a person authorized to engage in the practice of pharmacy in the state in which the person is licensed.

961.385(1)(an) (an) “Pharmacy” means a place of practice licensed under s. 450.06 or 450.065.

961.385(1)(ar) (ar) “Practitioner” has the meaning given in s. 450.01 (17) but does not include a veterinarian licensed under ch. 89.

961.385(1)(b) (b) “Prescription order” means an order transmitted orally, electronically, or in writing by a practitioner or a veterinarian licensed under ch. 89 for a monitored prescription drug for a particular patient.

961.385(2) (2) The board shall establish by rule a program for monitoring the dispensing of monitored prescription drugs. The program shall do all of the following:

961.385(2)(a) (a) Require a pharmacy or a practitioner to generate a record documenting each dispensing of a monitored prescription drug at the pharmacy or, if the monitored prescription drug is not dispensed at a pharmacy, by the practitioner and to submit the record to the board no later than 11:59 p.m. of the next business day after the monitored prescription drug is dispensed, except that the program may not require the generation of a record in any of the following circumstances:

961.385(2)(a)1. 1. A monitored prescription drug is administered directly to a patient.

961.385(2)(a)2. 2. A monitored prescription drug is compounded, packaged, or labeled in preparation for delivery but is not delivered.

961.385(2)(a)3. 3. The prescription order is for a monitored prescription drug that is a substance listed in the schedule in s. 961.22 and is not a narcotic drug, and the prescription order is for a number of doses that is intended to last the patient 7 days or less.

961.385(2)(b) (b) Identify specific data elements to be contained in a record documenting the dispensing of a monitored prescription drug, including the method of payment and, subject to sub. (2m), the name recorded under s. 450.11 (1b) (bm). In identifying specific data elements, the board shall consider data elements identified by similar programs in other states and shall ensure, to the extent possible, that records generated by the program are easily shared with other states.

961.385(2)(c) (c) Specify the persons to whom a record may be disclosed and the circumstances under which the disclosure may occur. Except as otherwise provided under this section, the rule promulgated under this paragraph shall comply with s. 146.82.

961.385(2)(cm) (cm) Permit the board to disclose a record generated by the program to any of the following:

961.385(2)(cm)1. 1. A practitioner, pharmacist, registered nurse licensed under s. 441.06, or substance abuse counselor, as defined in s. 440.88 (1) (b), or an individual holding a credential under s. 457.08 (2), (3), or (4), 457.10, 457.11, 457.12, 457.13, or 457.14 (1) (d) to (f) who treats alcohol or substance dependency or abuse as a specialty, if any of the following is applicable:

961.385(2)(cm)1.a. a. The practitioner, pharmacist, registered nurse, substance abuse counselor, or individual is directly treating or rendering assistance to the patient.

961.385(2)(cm)1.b. b. The practitioner, pharmacist, registered nurse, substance abuse counselor, or individual is being consulted regarding the health of the patient by an individual who is directly treating or rendering assistance to the patient.

961.385(2)(cm)2. 2. A person who medically coordinates, directs, or supervises, or establishes standard operating procedures for, a practitioner, pharmacist, registered nurse, substance abuse counselor, or individual to whom records may be disclosed under subd. 1., if the person is evaluating the job performance of the practitioner, pharmacist, registered nurse, substance abuse counselor, or individual, or is performing quality assessment and improvement activities, including outcomes evaluation or development of clinical guidelines, and if the disclosure does not contain personally identifiable information, as defined in s. 19.62 (5), of a patient and is limited to only those records about the practitioner, pharmacist, registered nurse, substance abuse counselor, or individual the person medically coordinates, directs, or supervises, or for whom the person establishes standard operating procedures.

961.385(2)(cm)3. 3. Relevant state boards and agencies, relevant agencies of other states, relevant law enforcement agencies, as defined in s. 165.77 (1) (b), and relevant prosecutorial units, as defined in s. 978.001 (2), if any of the following is true:

961.385(2)(cm)3.a. a. The state board or agency, agency of another state, law enforcement agency, or prosecutorial unit makes a written request for the record and is engaged in an active and specific investigation or prosecution of a violation of any state or federal law involving a monitored prescription drug, and the record being requested is reasonably related to that investigation or prosecution.

961.385(2)(cm)3.b. b. The state board or agency, agency of another state, law enforcement agency, or prosecutorial unit makes a written request for the record and is monitoring the patient as part of a drug court, as defined in s. 165.955 (1).

961.385(2)(cm)3.c. c. The circumstances indicate suspicious or critically dangerous conduct or practices of a pharmacy, pharmacist, practitioner, or patient. The board shall define what constitutes suspicious or critically dangerous conduct or practices for purposes of this subd. 3. c.

961.385(2)(cm)4. 4. An agent of a practitioner or pharmacist if disclosure to the practitioner or pharmacist is authorized subject to subd. 1.

961.385(2)(cs) (cs)

961.385(2)(cs)1. 1. Require that a patient’s records under the program be reviewed before the practitioner issues a prescription order for the patient. The review required under this subdivision may be performed by the practitioner or by the practitioner’s agent in accordance with applicable standards of practice. This subdivision does not apply after April 1, 2025.

961.385(2)(cs)2. 2. The requirement under subd. 1. that a patient’s records under the program be reviewed before the practitioner issues a prescription order for the patient does not apply if any of the following is true:

961.385(2)(cs)2.a. a. The patient is receiving hospice care, as defined in s. 50.94 (1) (a).

961.385(2)(cs)2.b. b. The prescription order is for a number of doses that is intended to last the patient 3 days or less and is not subject to refill.

961.385(2)(cs)2.c. c. The monitored prescription drug is lawfully administered to the patient.

961.385(2)(cs)2.d. d. Due to emergency, it is not possible to review the patient’s records under the program before the practitioner issues a prescription order for the patient.

961.385(2)(cs)2.e. e. It is not possible to review the patient’s records under the program because the digital platform for the program is not operational or due to other technological failure if that failure is reported to the board.

961.385(2)(d) (d) Specify a secure electronic format for submittal of a record generated under the program and authorize the board to grant a pharmacy or practitioner a waiver of the specified format.

961.385(2)(e) (e) Specify a deadline for the submittal of a record to the board.

961.385(2)(f) (f) Permit the board to refer to the appropriate licensing or regulatory board for discipline a pharmacist, pharmacy, or practitioner that fails to comply with rules promulgated under this subsection, including by failure to generate a record that is required by the program.

961.385(2)(fm) (fm) Permit the board to refer a pharmacist, pharmacy, or practitioner to the appropriate law enforcement agency for investigation and possible prosecution when the board has determined that a criminal violation may have occurred.

961.385(2)(g) (g) Maximize the potential for funding the operation of the program with available federal funding sources.

961.385(2)(h) (h) Ensure that the program complies with s. 146.82, except as otherwise provided in this section, and 45 CFR part 164, subpart E.