LB392 LB392
2021 2021
LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 392
Introduced by Stinner, 48.
Read first time January 14, 2021
Committee: Health and Human Services
1 A BILL FOR AN ACT relating to psychologists; to amend sections 38-2838,
2 38-2850, 38-3112, 71-2445, and 71-2473, Reissue Revised Statutes of
3 Nebraska, and sections 28-401, 38-3101, and 38-3111, Revised
4 Statutes Cumulative Supplement, 2020; to adopt the Prescribing
5 Psychologist Practice Act; to define and redefine terms; to provide
6 for the use of certain terms; to change the membership of the Board
7 of Psychology; to harmonize provisions; and to repeal the original
8 sections.
9 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-401, Revised Statutes Cumulative Supplement,
2 2020, is amended to read:
3 28-401 As used in the Uniform Controlled Substances Act, unless the
4 context otherwise requires:
5 (1) Administer means to directly apply a controlled substance by
6 injection, inhalation, ingestion, or any other means to the body of a
7 patient or research subject;
8 (2) Agent means an authorized person who acts on behalf of or at the
9 direction of another person but does not include a common or contract
10 carrier, public warehouse keeper, or employee of a carrier or warehouse
11 keeper;
12 (3) Administration means the Drug Enforcement Administration of the
13 United States Department of Justice;
14 (4) Controlled substance means a drug, biological, substance, or
15 immediate precursor in Schedules I through V of section 28-405.
16 Controlled substance does not include distilled spirits, wine, malt
17 beverages, tobacco, hemp, or any nonnarcotic substance if such substance
18 may, under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et
19 seq., as such act existed on January 1, 2014, and the law of this state,
20 be lawfully sold over the counter without a prescription;
21 (5) Counterfeit substance means a controlled substance which, or the
22 container or labeling of which, without authorization, bears the
23 trademark, trade name, or other identifying mark, imprint, number, or
24 device, or any likeness thereof, of a manufacturer, distributor, or
25 dispenser other than the person or persons who in fact manufactured,
26 distributed, or dispensed such substance and which thereby falsely
27 purports or is represented to be the product of, or to have been
28 distributed by, such other manufacturer, distributor, or dispenser;
29 (6) Department means the Department of Health and Human Services;
30 (7) Division of Drug Control means the personnel of the Nebraska
31 State Patrol who are assigned to enforce the Uniform Controlled
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1 Substances Act;
2 (8) Dispense means to deliver a controlled substance to an ultimate
3 user or a research subject pursuant to a medical order issued by a
4 practitioner authorized to prescribe, including the packaging, labeling,
5 or compounding necessary to prepare the controlled substance for such
6 delivery;
7 (9) Distribute means to deliver other than by administering or
8 dispensing a controlled substance;
9 (10) Prescribe means to issue a medical order;
10 (11) Drug means (a) articles recognized in the official United
11 States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United
12 States, official National Formulary, or any supplement to any of them,
13 (b) substances intended for use in the diagnosis, cure, mitigation,
14 treatment, or prevention of disease in human beings or animals, and (c)
15 substances intended for use as a component of any article specified in
16 subdivision (a) or (b) of this subdivision, but does not include devices
17 or their components, parts, or accessories;
18 (12) Deliver or delivery means the actual, constructive, or
19 attempted transfer from one person to another of a controlled substance,
20 whether or not there is an agency relationship;
21 (13) Hemp has the same meaning as in section 2-503;
22 (14)(a) Marijuana means all parts of the plant of the genus
23 cannabis, whether growing or not, the seeds thereof, and every compound,
24 manufacture, salt, derivative, mixture, or preparation of such plant or
25 its seeds.
26 (b) Marijuana does not include the mature stalks of such plant,
27 hashish, tetrahydrocannabinols extracted or isolated from the plant,
28 fiber produced from such stalks, oil or cake made from the seeds of such
29 plant, any other compound, manufacture, salt, derivative, mixture, or
30 preparation of such mature stalks, the sterilized seed of such plant
31 which is incapable of germination, or cannabidiol contained in a drug
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1 product approved by the federal Food and Drug Administration or obtained
2 pursuant to sections 28-463 to 28-468.
3 (c) Marijuana does not include hemp.
4 (d) When the weight of marijuana is referred to in the Uniform
5 Controlled Substances Act, it means its weight at or about the time it is
6 seized or otherwise comes into the possession of law enforcement
7 authorities, whether cured or uncured at that time.
8 (e) When industrial hemp as defined in section 2-5701 is in the
9 possession of a person as authorized under section 2-5701, it is not
10 considered marijuana for purposes of the Uniform Controlled Substances
11 Act;
12 (15) Manufacture means the production, preparation, propagation,
13 conversion, or processing of a controlled substance, either directly or
14 indirectly, by extraction from substances of natural origin,
15 independently by means of chemical synthesis, or by a combination of
16 extraction and chemical synthesis, and includes any packaging or
17 repackaging of the substance or labeling or relabeling of its container.
18 Manufacture does not include the preparation or compounding of a
19 controlled substance by an individual for his or her own use, except for
20 the preparation or compounding of components or ingredients used for or
21 intended to be used for the manufacture of methamphetamine, or the
22 preparation, compounding, conversion, packaging, or labeling of a
23 controlled substance: (a) By a practitioner as an incident to his or her
24 prescribing, administering, or dispensing of a controlled substance in
25 the course of his or her professional practice; or (b) by a practitioner,
26 or by his or her authorized agent under his or her supervision, for the
27 purpose of, or as an incident to, research, teaching, or chemical
28 analysis and not for sale;
29 (16) Narcotic drug means any of the following, whether produced
30 directly or indirectly by extraction from substances of vegetable origin,
31 independently by means of chemical synthesis, or by a combination of
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1 extraction and chemical synthesis: (a) Opium, opium poppy and poppy
2 straw, coca leaves, and opiates; (b) a compound, manufacture, salt,
3 derivative, or preparation of opium, coca leaves, or opiates; or (c) a
4 substance and any compound, manufacture, salt, derivative, or preparation
5 thereof which is chemically equivalent to or identical with any of the
6 substances referred to in subdivisions (a) and (b) of this subdivision,
7 except that the words narcotic drug as used in the Uniform Controlled
8 Substances Act does not include decocainized coca leaves or extracts of
9 coca leaves, which extracts do not contain cocaine or ecgonine, or
10 isoquinoline alkaloids of opium;
11 (17) Opiate means any substance having an addiction-forming or
12 addiction-sustaining liability similar to morphine or being capable of
13 conversion into a drug having such addiction-forming or addiction-
14 sustaining liability. Opiate does not include the dextrorotatory isomer
15 of 3-methoxy-n methylmorphinan and its salts. Opiate includes its racemic
16 and levorotatory forms;
17 (18) Opium poppy means the plant of the species Papaver somniferum
18 L., except the seeds thereof;
19 (19) Poppy straw means all parts, except the seeds, of the opium
20 poppy after mowing;
21 (20) Person means any corporation, association, partnership, limited
22 liability company, or one or more persons;
23 (21) Practitioner means a physician, a physician assistant, a
24 dentist, a veterinarian, a pharmacist, a podiatrist, a prescribing
25 psychologist, an optometrist, a certified nurse midwife, a certified
26 registered nurse anesthetist, a nurse practitioner, a scientific
27 investigator, a pharmacy, a hospital, or any other person licensed,
28 registered, or otherwise permitted to distribute, dispense, prescribe,
29 conduct research with respect to, or administer a controlled substance in
30 the course of practice or research in this state, including an emergency
31 medical service as defined in section 38-1207;
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1 (22) Production includes the manufacture, planting, cultivation, or
2 harvesting of a controlled substance;
3 (23) Immediate precursor means a substance which is the principal
4 compound commonly used or produced primarily for use and which is an
5 immediate chemical intermediary used or likely to be used in the
6 manufacture of a controlled substance, the control of which is necessary
7 to prevent, curtail, or limit such manufacture;
8 (24) State means the State of Nebraska;
9 (25) Ultimate user means a person who lawfully possesses a
10 controlled substance for his or her own use, for the use of a member of
11 his or her household, or for administration to an animal owned by him or
12 her or by a member of his or her household;
13 (26) Hospital has the same meaning as in section 71-419;
14 (27) Cooperating individual means any person, other than a
15 commissioned law enforcement officer, who acts on behalf of, at the
16 request of, or as agent for a law enforcement agency for the purpose of
17 gathering or obtaining evidence of offenses punishable under the Uniform
18 Controlled Substances Act;
19 (28)(a) Hashish or concentrated cannabis means (i) the separated
20 resin, whether crude or purified, obtained from a plant of the genus
21 cannabis or (ii) any material, preparation, mixture, compound, or other
22 substance which contains ten percent or more by weight of
23 tetrahydrocannabinols.
24 (b) When resins extracted from (i) industrial hemp as defined in
25 section 2-5701 are in the possession of a person as authorized under
26 section 2-5701 or (ii) hemp as defined in section 2-503 are in the
27 possession of a person as authorized under the Nebraska Hemp Farming Act,
28 they are not considered hashish or concentrated cannabis for purposes of
29 the Uniform Controlled Substances Act;
30 (29) Exceptionally hazardous drug means (a) a narcotic drug, (b)
31 thiophene analog of phencyclidine, (c) phencyclidine, (d) amobarbital,
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1 (e) secobarbital, (f) pentobarbital, (g) amphetamine, or (h)
2 methamphetamine;
3 (30) Imitation controlled substance means a substance which is not a
4 controlled substance or controlled substance analogue but which, by way
5 of express or implied representations and consideration of other relevant
6 factors including those specified in section 28-445, would lead a
7 reasonable person to believe the substance is a controlled substance or
8 controlled substance analogue. A placebo or registered investigational
9 drug manufactured, distributed, possessed, or delivered in the ordinary
10 course of practice or research by a health care professional shall not be
11 deemed to be an imitation controlled substance;
12 (31)(a) Controlled substance analogue means a substance (i) the
13 chemical structure of which is substantially similar to the chemical
14 structure of a Schedule I or Schedule II controlled substance as provided
15 in section 28-405 or (ii) which has a stimulant, depressant, analgesic,
16 or hallucinogenic effect on the central nervous system that is
17 substantially similar to or greater than the stimulant, depressant,
18 analgesic, or hallucinogenic effect on the central nervous system of a
19 Schedule I or Schedule II controlled substance as provided in section
20 28-405. A controlled substance analogue shall, to the extent intended for
21 human consumption, be treated as a controlled substance under Schedule I
22 of section 28-405 for purposes of the Uniform Controlled Substances Act;
23 and
24 (b) Controlled substance analogue does not include (i) a controlled
25 substance, (ii) any substance generally recognized as safe and effective
26 within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
27 301 et seq., as such act existed on January 1, 2014, (iii) any substance
28 for which there is an approved new drug application, or (iv) with respect
29 to a particular person, any substance if an exemption is in effect for
30 investigational use for that person, under section 505 of the Federal
31 Food, Drug, and Cosmetic Act, 21 U.S.C. 355, as such section existed on
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1 January 1, 2014, to the extent conduct with respect to such substance is
2 pursuant to such exemption;
3 (32) Anabolic steroid means any drug or hormonal substance,
4 chemically and pharmacologically related to testosterone (other than
5 estrogens, progestins, and corticosteroids), that promotes muscle growth
6 and includes any controlled substance in Schedule III(d) of section
7 28-405. Anabolic steroid does not include any anabolic steroid which is
8 expressly intended for administration through implants to cattle or other
9 nonhuman species and has been approved by the Secretary of Health and
10 Human Services for such administration, but if any person prescribes,
11 dispenses, or distributes such a steroid for human use, such person shall
12 be considered to have prescribed, dispensed, or distributed an anabolic
13 steroid within the meaning of this subdivision;
14 (33) Chart order means an order for a controlled substance issued by
15 a practitioner for a patient who is in the hospital where the chart is
16 stored or for a patient receiving detoxification treatment or maintenance
17 treatment pursuant to section 28-412. Chart order does not include a
18 prescription;
19 (34) Medical order means a prescription, a chart order, or an order
20 for pharmaceutical care issued by a practitioner;
21 (35) Prescription means an order for a controlled substance issued
22 by a practitioner. Prescription does not include