On February 14, Governor Markell signed into law House Bill No. 154, amending Titles 16 and 24 of the Delaware Code, as another action to help curb prescription drug abuse and diversion in Delaware. The law creates a new criminal offense and imposes penalties for diverting prescription drugs from a patient in a facility. More specifically, the law includes in the definition of “abuse” medication diversion “by knowingly, or intentionally, interrupting, obstructing, or altering the delivery or administration, of a prescription drug to a patient or resident” so long as the drug was prescribed or ordered by a healthcare provider for the patient or resident and where the diversion occurred without a prescription or order of a healthcare provider.
The law allows for a safe harbor of sorts, providing that a person is justified in diverting the prescription drug if the person is a healthcare provider who acted in good faith within the scope of his/her practice and/or employment, or if the person was acting in good faith while rendering emergency care at the scene of an emergency of accident. This safe harbor may raise issues about the scope of practice of particular health care providers and the existence of written and/or verbal orders to stop the administration of a drug.
If a person knowingly causes medication diversion of a patient or resident, the person shall be guilty of a class G felony. If the person is a healthcare professional, he/she shall be guilty of a class F felony. Delaware healthcare providers who work in facilities should clarify their scope of practice and employment related to the interruption of prescription medications, even if only temporarily.
