PRINTER'S NO. 3091
No. 2217 Session of 2005
INTRODUCED BY FRANKEL, BEBKO-JONES, BELFANTI, BLACKWELL,
CALTAGIRONE, COHEN, CURRY, DeWEESE, GERBER, JAMES, JOSEPHS,
LEACH, MANDERINO, MANN, MUNDY, PARKER, PISTELLA, SHAPIRO,
STETLER, STURLA, WHEATLEY, WILLIAMS AND YOUNGBLOOD,
NOVEMBER 14, 2005
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE,
NOVEMBER 14, 2005
AN ACT
1 Establishing certain duties for pharmacies when pharmacists
2 employed by the pharmacies refuse to fill valid prescriptions
3 for drugs or devices on the basis of personal beliefs; and
4 providing for a penalty.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Access to
9 Legal Pharmaceuticals Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Employ." The term, with respect to the services of a
15 pharmacist, includes entering into a contract for the provision
16 of such services.
17 "In stock." The maintenance of a supply of drugs and devices
1 adequate to meet the needs of the health professionals and the
2 patients the pharmacy is intended to serve.
3 "Pharmacist." A person authorized by the Commonwealth to
4 practice pharmacy, including the dispensing and selling of
5 prescription drugs.
6 "Pharmacy." A person or entity who:
7 (1) is authorized by the Commonwealth to engage in the
8 business of selling prescription drugs at retail; and
9 (2) employs one or more pharmacists.
10 "Prescription device." A device whose sale at retail is
11 restricted under section 520(e)(1) of the Federal Food, Drug,
12 and Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.).
13 Prescription drug." A drug that is subject to section
14 503(b)(1) of the Federal Food, Drug, and Cosmetic Act (52 Stat.
15 1040, 21 U.S.C. § 301 et seq.).
16 "Product." A prescription drug or a prescription device.
17 "Valid." The term, with respect to a prescription, means:
18 (1) in the case of a drug, a prescription within the
19 meaning of section 503(b)(1) of the Federal Food, Drug, and
20 Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 301 et seq.), that
21 is in compliance with applicable law, including, in the case
22 of a prescription for a drug that is a controlled substance,
23 compliance with 21 C.F.R. Pt. 1306; and
24 (2) in the case of a device, an authorization of a
25 practitioner within the meaning of section 520(e)(1) of the
26 Federal Food, Drug and Cosmetic Act that is in compliance
27 with applicable law.
28 "Without delay." The term, with respect to a pharmacy
29 filling a prescription for a product or ordering the product,
30 means within the usual and customary time frame at the pharmacy
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1 for filling prescriptions for products for the health condition
2 involved or for ordering such products, respectively.
3 Section 3. Duties of pharmacies with respect to refusal of
4 pharmacists to fill valid prescriptions.
5 (a) Compliance.--A pharmacy that receives prescription drugs
6 or prescription devices shall maintain compliance with the
7 following conditions:
8 (1) If a product is in stock and a pharmacist employed
9 by the pharmacy refuses on the basis of a personal belief to
10 fill a valid prescription for the product, the pharmacy shall
11 ensure, subject to the consent of the individual presenting
12 the prescription in any case in which the individual has
13 reason to know of the refusal, that the prescription is,
14 without delay, filled by another pharmacist employed by the
15 pharmacy.
16 (2) (i) Except as provided in subparagraph (ii), if a
17 product is not in stock and a pharmacist employed by the
18 pharmacy refuses on the basis of a personal belief or on
19 the basis of pharmacy policy to order or to offer to
20 order the product when presented a valid prescription for
21 the product, the pharmacy shall ensure that:
22 (A) the individual presenting the prescription
23 is immediately informed that the product is not in
24 stock but can be ordered by the pharmacy; and
25 (B) subject to the consent of the individual,
26 the product is, without delay, ordered by another
27 pharmacist employed by the pharmacy.
28 (ii) Subparagraph (i) shall apply only to a pharmacy
29 ordering a particular product for an individual
30 presenting a valid prescription for the product and shall
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1 not require the pharmacy to keep the product in stock,
2 except that the subparagraph shall not apply to a product
3 for a health condition if the pharmacy does not keep in
4 stock any product for that condition.
5 (3) Except as provided in paragraphs (1) and (2), the
6 pharmacy shall not employ any pharmacist who engages in any
7 conduct with the intent to prevent or deter an individual
8 from filling a valid prescription for a product or from
9 ordering the product, including any of the following:
10 (i) The refusal to return a prescription form to the
11 individual after refusing to fill the prescription or
12 order the product if the individual requests the return
13 of the form.
14 (ii) The refusal to transfer prescription
15 information to another pharmacy for refill dispensing
16 when a transfer is lawful if the individual requests the
17 transfer.
18 (iii) Subjecting the individual to humiliation or
19 otherwise harassing the individual.
20 (iv) Breaching or threatening medical
21 confidentiality with respect to the prescription.
22 Section 4. Enforcement.
23 (a) Civil penalty.--A pharmacy that violates a requirement
24 of section 3 shall incur a civil penalty in an amount not
25 exceeding $5,000 per day of violation, not to exceed $500,000
26 for all violations adjudicated in a single proceeding.
27 (b) Private cause of action.--Any person aggrieved as a
28 result of a violation of a requirement of section 3 may commence
29 a civil action against the pharmacy involved to obtain
30 appropriate relief, including actual and punitive damages,
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1 injunctive relief and reasonable attorney fees and costs.
2 (c) Limitations.--A civil action under paragraph (1) or (2)
3 may not be commenced against a pharmacy after the expiration of
4 the five-year period beginning on the date on which the pharmacy
5 allegedly engaged in the violation involved.
6 Section 10. Effective date.
7 This act shall take effect in 60 days.
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