Senate Bill sb0464

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    Florida Senate - 2005                                   SB 464

    By Senator Campbell





    32-479-05

  1                      A bill to be entitled

  2         An act relating to state pharmaceutical

  3         programs; providing definitions; creating a

  4         prescription drug assistance clearinghouse

  5         program; requiring costs of the program to be

  6         paid by drug manufacturers; providing for the

  7         transfer of ownership of the program to the

  8         state; establishing a pharmaceutical discount

  9         card program; providing for eligibility for

10         participation in the pharmaceutical discount

11         card program; creating a program to obtain

12         favorable pharmaceutical prices for state

13         agencies and other entities; requiring a

14         proposed pricing schedule; creating the

15         Pharmaceutical Cost Management Commission

16         within the Executive Office of the Governor;

17         establishing membership; establishing powers

18         and responsibilities of the commission;

19         providing reporting requirements; authorizing

20         an investigation into the feasibility of

21         purchasing Canadian drugs; authorizing the

22         establishment of a pricing schedule;

23         authorizing exploration of numerous strategies,

24         policies, and programs, including, but not

25         limited to, referenced prices for prescription

26         drug purchases and pricing in the state;

27         authorizing implementation of certain

28         designated programs; prohibiting restraint of

29         trade; providing civil and criminal penalties;

30         providing for advertising costs to be reported

31         to the Governor and the Legislature; providing

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 1         rulemaking authority; providing an effective

 2         date.

 3  

 4         WHEREAS, the rising cost of prescription drugs has

 5  caused a significant hardship on individuals who have limited

 6  budgets, are uninsured, or have prescription coverage that is

 7  insufficient to cover costs successfully due to cost shifting

 8  and disparate pricing policies, and

 9         WHEREAS, the average cost per prescription for seniors

10  rose significantly between 1992 and 2000, and is expected to

11  continue increasing significantly through 2010, and

12         WHEREAS, there is an increasing need for the residents

13  of this state to have affordable access to prescription drugs,

14  and

15         WHEREAS, the Legislature does not intend the imposition

16  of the programs under this act to penalize or otherwise

17  jeopardize the benefits of veterans and other beneficiaries of

18  federal drug prices, and

19         WHEREAS, in an effort to promote healthy communities

20  and to protect the health and welfare of residents of this

21  state, the Legislature finds that it is its responsibility to

22  make every effort to provide affordable prescription drugs for

23  all residents of this state, NOW, THEREFORE,

24  

25  Be It Enacted by the Legislature of the State of Florida:

26  

27         Section 1.  (1)  SHORT TITLE.--This section may be

28  cited as the "Pharmaceutical Availability and Affordability

29  Act."

30         (2)  DEFINITIONS.--As used in this section, the term:

31  

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 1         (a)  "Advertising or marketing" means any manner of

 2  communication of information, directly or indirectly, which is

 3  paid for and usually persuasive in nature concerning products,

 4  services, or ideas related to pharmaceuticals by identified

 5  sponsors through various media, persons, or other forms as

 6  further defined by rule.

 7         (b)  "Average wholesale price" or "AWP" means the

 8  amount determined from the latest publication of the Bluebook,

 9  a universally subscribed pharmacists' reference guide annually

10  published by the Hearst Corporation. Average wholesale price

11  or AWP may also be derived electronically from the drug

12  pricing database synonymous with the latest publication of the

13  Bluebook and furnished in the National Drug Data File (NDDF)

14  by First DataBank, Inc., a provider of comprehensive drug

15  information to health care professionals and a subsidiary of

16  the Hearst Corporation.

17         (c)  "Dispensing fee" means the fee charged by a

18  pharmacy to dispense pharmaceuticals.

19         (d)  "Drug manufacturer" or "pharmaceutical

20  manufacturer" means any entity that is engaged in:

21         1.  The production, preparation, propagation,

22  compounding, conversion, or processing of prescription drug

23  products, directly or indirectly, by extraction from

24  substances of natural origin, independently by means of

25  chemical synthesis, or by a combination of extraction or

26  chemical synthesis; or

27         2.  The packaging, repackaging, labeling, relabeling,

28  or distribution of prescription drug products. Drug

29  manufacturer or pharmaceutical manufacturer does not include a

30  wholesale distributor of drugs or a retail pharmacy licensed

31  under state law.

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 1         (e)  "Federal supply schedule" or "FSS" means the price

 2  available to all federal agencies for the purchase of

 3  pharmaceuticals authorized in the Veterans Health Care Act of

 4  1992, Public Law 102-585. FSS prices are intended to equal or

 5  better the prices manufacturers charge their most-favored

 6  nonfederal customers under comparable terms and conditions.

 7         (f)  "Multiple-source drug" means a drug for which

 8  there are two or more drug products that are rated as

 9  therapeutically equivalent according to the federal Food and

10  Drug Administration's most recent publication of "Approved

11  Drug Products with Therapeutic Equivalence Evaluations,"

12  except as otherwise provided in this subsection, and that are

13  pharmaceutically equivalent and bioequivalent, as determined

14  by the federal Food and Drug Administration.

15         (g)  "Innovator drug" means a drug that is produced or

16  distributed under an original new drug application approved by

17  the federal Food and Drug Administration, including a drug

18  product marketed by any cross-licensed producer or distributor

19  operating under the new drug application and any

20  multiple-source drug that was originally marketed under an

21  original new drug application approved by the federal Food and

22  Drug Administration. An innovator drug may be referred to as a

23  "brand" drug.

24         (h)  "Noninnovator drug" means a multiple-source drug

25  that is not an innovator drug. A noninnovator drug may be

26  referred to as a "generic" drug.

27  

28  Paragraphs (f), (g), and (h) do not apply if the federal Food

29  and Drug Administration changes by regulation the requirement

30  that, for purposes of the publication described in paragraph

31  (f), in order for drug products to be rated as therapeutically

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 1  equivalent, they must be pharmaceutically equivalent and

 2  bioequivalent.

 3         (i)  "Labeler" means an entity or person that receives

 4  prescription drugs from a manufacturer or wholesaler and

 5  repackages those drugs for later retail sale and that has a

 6  labeler code from the federal Food and Drug Administration

 7  pursuant to 21 C.F.R. s. 207.20 (1999).

 8         (j)  "Person" means any natural person or corporation,

 9  partnership, company, trust, or association of persons.

10         (k)  "Pharmaceutical drug detailing" or "detailing"

11  means the function performed by a sales representative who is

12  employed by a pharmaceutical manufacturer for the purpose of

13  promoting pharmaceutical drugs or related products, providing

14  education about pharmaceutical drugs or related products, or

15  providing samples of pharmaceutical drugs, related products,

16  or related materials, gifts, food, or meals.

17         (l)  "Savings" means the difference between the

18  previous price of a prescription drug, including any

19  discounts, rebates, or price containments, and the current

20  price after July 1, 2005, for the Department of Management

21  Services, the state children's health insurance program, the

22  Medicaid and workers' compensation programs, or other programs

23  that are payors for prescription drugs.

24         (m)  "Sole source" means a pharmaceutical that provides

25  a unique and powerful advantage available in the market to a

26  broad group of patients established under federal law.

27         (n)  "Pharmaceutical Cost Management Commission" or

28  "commission" means the commission created pursuant to

29  subsection (7).

30         (3)  CREATION OF CLEARINGHOUSE PROGRAM.--

31  

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 1         (a)  There is created the state prescription drug

 2  assistance clearinghouse program. Each brand pharmaceutical

 3  manufacturer shall create and implement a program to assist

 4  state residents who have low incomes or are uninsured to gain

 5  access to prescription medications through existing private

 6  and public programs and prescription drug assistance programs

 7  offered by manufacturers, including discount and coverage

 8  programs. Each brand pharmaceutical manufacturer shall use

 9  available computer software programs that provide an eligible

10  individual with access to the appropriate private or public

11  programs relating to the individual's medically necessary

12  drugs. Each brand pharmaceutical manufacturer shall provide

13  education to individuals and providers to promote the program

14  and to expand enrollment and access to necessary medications

15  for low-income or uninsured individuals qualifying for the

16  programs. A participating brand pharmaceutical manufacturer is

17  responsible for the cost of establishing the program and

18  running the program until June 20, 2006, when the ownership of

19  the technology, the website, and other program features shall

20  be transferred to the state. The Secretary of Health and the

21  Director of the Office of Insurance Regulation shall provide

22  joint oversight over the establishment and construction of the

23  program and program features prior to the transfer of

24  ownership to the state. The commission shall recommend the

25  state agency that will own, control, and operate the program,

26  technology, and program features, and shall include such

27  recommendation in its report on or before September 1, 2005,

28  to the Governor, the President of the Senate, and the Speaker

29  of the House of Representatives. In addition, each

30  pharmaceutical manufacturer shall report to the Office of

31  Program Policy Analysis and Government Accountability on a

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 1  monthly basis all activities related to the implementation of

 2  this program, including the number of residents served and the

 3  services provided.

 4         (b)  Each participating brand pharmaceutical

 5  manufacturer shall contribute funding for promoting the

 6  public-relations program attendant to the establishment of the

 7  program. Each participating brand pharmaceutical manufacturer

 8  is responsible for the cost of establishing the program and

 9  the cost of the ongoing program, regardless of the date of

10  transfer of ownership of the program to the state, until

11  December 31, 2005.

12         (4)  PHARMACEUTICAL DISCOUNT CARD PROGRAM;

13  ESTABLISHMENT; ELIGIBLE INDIVIDUALS; DISCOUNT PASS THROUGH;

14  TERMS.--

15         (a)  There is established a discount card program to

16  provide low-income, uninsured individuals with access to

17  prescription drugs from participating brand pharmaceutical

18  companies and pharmacists through a state-sponsored discount

19  card program or a program that extends current prescription

20  drug assistance programs by brand pharmaceutical

21  manufacturers.

22         1.  Eligible individuals include uninsured residents

23  having incomes of up to 200 percent of the federal poverty

24  level who have not been covered by a prescription drug

25  program, whether public or private, for at least 6 months

26  before applying for the discount card program.

27         2.  The state may negotiate voluntary discounts with

28  brand pharmaceutical manufacturers and pharmacists if the

29  total discount received from the manufacturer passes through

30  to the eligible resident.

31  

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 1         3.  Failure of a brand pharmaceutical manufacturer to

 2  participate in the voluntary discount card program shall not

 3  result in prior authorization on drugs in the Medicaid program

 4  which would not otherwise be subject to prior authorization

 5  but for the failure of the manufacturer to participate in this

 6  program.

 7         4.  The state may not establish a formulary or

 8  preferred drug list as part of the discount card program.

 9         (b)  Each brand pharmaceutical manufacturer may extend

10  existing prescription drug assistance programs to eligible

11  residents of this state. Eligible individuals include

12  uninsured residents of this state having incomes of up to 200

13  percent of the federal poverty level who have not been covered

14  by a prescription drug program, whether public or private, for

15  at least 6 months before applying for the program.

16         (c)  The program established under this section shall

17  be structured so that a member presenting a discount card at a

18  participating pharmacy will receive the full benefit of the

19  pharmacy discount, as well as the manufacturer's discount, at

20  the point of sale. The program or the pharmacy benefit manager

21  contracted by the program shall coordinate the drug discount

22  information provided by participating pharmacies and

23  manufacturers so that the available drug discounts are

24  provided to the member at the point of sale.

25         (d)  A manufacturer participating in the voluntary

26  program established under this section shall cooperate with

27  the program or the pharmacy benefit manager contracted by the

28  program to provide the current list of drugs and the

29  percentage of discount from the AWP for such drugs, or the

30  rebates that the manufacturer provides under the program. It

31  is the intent of the Legislature that adequate drug price and

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 1  discount or rebate information be provided by the manufacturer

 2  such that the program and participating pharmacies will have

 3  available drug prices and discounts or rebates at the point of

 4  sale. A retail pharmacy is responsible for no more than 50

 5  percent of the discount offered by the manufacturer to the

 6  participant.

 7         1.  A pharmacy participating in a voluntary program

 8  established under this section is responsible for no more than

 9  50 percent of the discount offered by the manufacturer to the

10  participant, and shall be paid a dispensing fee of no more

11  that $3.50 per prescription with regard to prescriptions

12  filled under the program.

13         2.  Upon the presentation of a valid discount card,

14  payment for the prescription, and satisfaction of other

15  appropriate criteria for having his or her prescription

16  filled, the cardholder's prescription shall be filled by a

17  participating pharmacy. To accomplish the transaction, the

18  participating pharmacy shall electronically transmit the

19  transaction to the program or pharmacy benefit manager

20  contracted by the program for processing. The program, or the

21  program's pharmacy benefit manager, shall determine the

22  discounted cost of the drug, including the discount provided,

23  the discount provided by the pharmacy, the discount or rebate

24  provided by the manufacturer, the pharmacy dispensing fee, and

25  any pharmacy benefit manager transaction fee. The program or

26  the pharmacy benefit manager shall then transmit to the

27  manufacturer an electronic statement of the amount the

28  manufacturer owes on the transaction to cover the

29  manufacturer's discount or rebate and the program's or

30  pharmacy benefit manager's processing fee. The manufacturer

31  shall, at least every 14 days, transmit such monetary amounts

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 1  for the transaction to the program or the program's pharmacy

 2  benefit manager, and the program or the program's pharmacy

 3  benefit manager shall immediately pass the discount or rebate

 4  amounts back to the participating pharmacy that originated the

 5  transaction.

 6         (e)  Each pharmaceutical manufacturer shall report

 7  monthly to the Office of Program Policy Analysis and

 8  Government Accountability all activities related to the

 9  implementation of this program, including the number of

10  residents served and the services provided, as well as the

11  benefits, costs, and discounts obtained.

12         (5)  CREATION OF PROGRAM; ADMINISTRATIVE SUPPORT;

13  MEDICAID AND CHIP PROGRAMS.--

14         (a)  There is created a program to obtain favorable

15  pharmaceutical prices for state agencies and other qualified

16  entities.

17         (b)  The Medicaid program and this state's children's

18  health insurance program are exempt from participating in this

19  program until approval by the Centers for Medicare and

20  Medicaid Services has been granted if it is determined to be

21  required by the commission.

22         (c)  Administrative staff support for the program shall

23  be provided by the departments represented on the commission.

24         (d)  The commission shall establish a pricing schedule

25  using or referencing the FSS prices, or using or referencing

26  the price, as adjusted for currency valuations, set by the

27  Patented Medicine Prices Review Board in Canada or any other

28  appropriate referenced price that will maximize savings to the

29  broadest percentage of the population of this state.

30         (e)  By September 15, 2005, the commission shall report

31  to the Legislature the pricing schedule developed and a

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 1  strategic plan for implementation. The commission shall

 2  implement the proposed pricing schedule and strategic plan

 3  upon approval by the Legislature that the proposed pricing

 4  schedule and strategy are the most effective method of

 5  reducing pharmaceutical prices for the residents of this

 6  state.

 7         (f)  A qualified entity, including, but not limited to,

 8  licensed private insurers, self-insured employers, free

 9  clinics, and other entities that provide pharmaceuticals

10  directly or through some form of coverage to the residents of

11  this state shall have an option to apply for participation in

12  the program in the form and manner established by the

13  commission. The commission may approve or deny participation

14  through review of documentation determined to be necessary for

15  full consideration and as established by rule. The commission

16  shall consider, but not be limited to, the fiscal stability

17  and size of each applicant.

18         (g)  A pharmaceutical manufacturer may request that a

19  waiver from the pricing schedule be granted by the commission

20  for a particular drug in which the development, production,

21  distribution costs, and other reasonable costs and reasonable

22  profits, exclusive of all marketing and advertising costs as

23  determined by the commission, are more than the pricing

24  schedule rate of the pharmaceutical or in those cases in which

25  the pharmaceutical in question has a sole source. The

26  determination of reasonable costs and reasonable profits may

27  fluctuate between different pharmaceuticals under

28  consideration by the commission. The commission shall

29  determine by rule the fees to be paid by the applicant at the

30  time a waiver request is made and the required documentation

31  is submitted.

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 1         (6)  MULTISTATE DISCUSSION GROUP.--For the purposes of

 2  reviewing or amending the program establishing the process for

 3  making pharmaceuticals more available and affordable to the

 4  residents of this state, the state may continue to enter into

 5  multistate discussions and agreements. For purposes of

 6  participating in these discussions, the state shall be

 7  represented by members of the commission.

 8         (7)  PHARMACEUTICAL COST MANAGEMENT COMMISSION.--

 9         (a)  There is created the Pharmaceutical Cost

10  Management Commission within the Executive Office of the

11  Governor consisting of 10 members.

12         1.  The following five state officials shall be members

13  of the commission:

14         a.  The Secretary of Management Services, or his or her

15  designee;

16         b.  The Secretary of Elderly Affairs, or his or her

17  designee;

18         c.  The Secretary of Health Care Administration, or his

19  or her designee;

20         d.  The executive director of the Office of Insurance

21  Regulation, or his or her designee; and

22         e.  The deputy secretary of the Division of Health

23  Quality Assurance within the Agency for Health Care

24  Administration, or his or her designee.

25         2.  The Governor shall appoint the following public

26  members to the commission:

27         a.  A licensed pharmacist employed by a community

28  retail pharmacy;

29         b.  A representative of a pharmaceutical manufacturer

30  having substantial operations located in this state and which

31  has at least 750 employees;

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 1         c.  A primary care physician;

 2         d.  A citizen of this state who will directly benefit

 3  from the establishment of discount drug programs; and

 4         e.  A citizen of this state who has experience in the

 5  finance, development, or management of a health insurance

 6  company that provides pharmaceutical coverage.

 7         3.  Commission members shall be appointed to terms of 4

 8  years each. Any vacancy on the commission shall be filled in

 9  the same manner as the original appointment. A member may be

10  removed by the Governor for cause. Any member appointed to

11  fill a vacancy occurring because of death, resignation, or

12  ineligibility for membership shall serve only for the

13  unexpired term of the member's predecessor. A member is

14  eligible for reappointment.

15         4.  Members of the commission shall serve without

16  compensation, but are entitled to reimbursement for per diem

17  and travel expenses as provided in section 112.061, Florida

18  Statutes.

19         5.  The Secretary of Management Services shall serve as

20  chairperson of the commission, which shall meet at times and

21  places specified by the chairperson or upon request of two

22  members of the commission.

23         (b)  The commission has the power and authority to:

24         1.  Contract for the purpose of implementing the

25  cost-containment provisions of this section;

26         2.  File suit;

27         3.  Execute, as permitted by applicable federal law,

28  prescription drug purchasing agreements with:

29         a.  Any department, agency, authority, institution,

30  program, any agency or program of the federal government, a

31  quasi-public corporation and political subdivision of this

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 1  state, including, but not limited to, the children's health

 2  insurance program, the Department of Corrections, the

 3  Department of Juvenile Justice, the Workers' Compensation

 4  Administration Trust Fund, a state college or university, a

 5  public hospital, a state or local institution such as a

 6  nursing home, a veterans' home, the Agency for Persons with

 7  Disabilities, a public health department, a state program,

 8  including, but not limited to, a program established by this

 9  section or the Division of Health Quality Assurance, if the

10  contract or agreement executed with or on behalf of the

11  Division of Health Quality Assurance contains all necessary

12  provisions to comply with Title XIX of the Social Security

13  Act, 42 U.S.C. s. 1396 et seq., dealing with pharmacy services

14  offered to recipients under the federal medical assistance

15  program;

16         b.  A government of another state or jurisdiction and

17  its individual departments, agencies, authorities,

18  institutions, programs, quasi-public corporations and

19  political subdivisions; and

20         c.  A regional or multistate purchasing alliance or

21  consortium that is formed for the purpose of pooling the

22  combined purchasing power of the individual members in order

23  to increase bargaining power.

24         4.  Consider strategies by which this state may manage

25  the increasing costs of prescription drugs and increase access

26  to prescription drugs for all of the state's residents,

27  including the authority to explore:

28         a.  The enactment of fair prescription-drug-pricing

29  policies;

30         b.  Discount prices or rebate programs for seniors and

31  persons without prescription drug coverage;

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 1         c.  Programs offered by pharmaceutical manufacturers

 2  which provide prescription drugs free of charge or at reduced

 3  prices;

 4         d.  Requirements and criteria, including the level of

 5  detail, for prescription drug manufacturers to disclose to the

 6  commission expenditures for advertising, marketing, and

 7  promotion, based on aggregate national data;

 8         e.  The establishment of counter-detailing programs

 9  aimed at educating health care practitioners authorized to

10  prescribe prescription drugs about the relative costs and

11  benefits of various prescription drugs, with an emphasis on

12  generic substitution for brand name drugs when available and

13  appropriate; prescribing older, less costly drugs instead of

14  newer, more expensive drugs when appropriate; and prescribing

15  lower dosages of prescription drugs when available and

16  appropriate;

17         f.  State management programs for diseases aimed at

18  enhancing the effectiveness of treating certain diseases

19  identified as prevalent among this state's population;

20         g.  Prescription drug purchasing agreements with large

21  private-sector purchasers of prescription drugs and including

22  those private entities in pharmacy benefit management

23  contracts if a private entity is not compelled to participate

24  in a purchasing agreement;

25         h.  The feasibility of using or referencing the federal

26  supply schedule or referencing the price, as adjusted for

27  currency valuations, set by the Patented Medicine Prices

28  Review Board in Canada or any other appropriate referenced

29  price in order to establish prescription drug pricing for

30  brand name drugs in the state, and to review and determine the

31  dispensing fees for pharmacies;

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 1         i.  Joint negotiations for drug purchasing and a shared

 2  prescription drug pricing schedule and shared preferred drug

 3  list for use by the state insurance program, the Medicaid

 4  program, other state payors, and private insurers, if

 5  possible;

 6         j.  Coordination between the Medicaid program, the

 7  state insurance program and, to the extent possible, hospitals

 8  and private insurers, for the purpose of developing a uniform

 9  preferred prescription drug list that is clinically

10  appropriate and that leverages retail prices;

11         k.  Policies that promote the use of generic drugs

12  where appropriate;

13         l.  A policy that precludes a drug manufacturer from

14  reducing the amounts of drug rebates or otherwise penalizing

15  an insurer, health plan, or other entity that pays for

16  prescription drugs based upon the fact that the entity uses

17  step therapy or other clinical programs before a drug is

18  covered or otherwise authorized for payment;

19         m.  Arrangements with entities in the private sector,

20  including self-funded benefit plans and nonprofit

21  corporations, toward combined purchasing of health care

22  services, health care management services, pharmacy benefits

23  management services, or pharmaceutical products on the

24  condition that no private entity be compelled to participate

25  in the prescription drug purchasing pool;

26         n.  Other strategies, as permitted under state and

27  federal law, aimed at managing escalating prescription drug

28  prices and increasing affordable access to prescription drugs

29  for all residents of this state; and

30         o.  The licensing and regulation of pharmaceutical

31  detailers, including the requirement of continuing

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 1  professional education, the imposition of fees for licensing

 2  and continuing education, the establishment of a special

 3  revenue account for deposit of the fees, and the imposition of

 4  penalties for noncompliance with licensing and continuing

 5  education requirements.

 6         5.  Contract with appropriate legal, actuarial, and

 7  other service providers required to accomplish any function

 8  within the powers of the commission and to develop other

 9  strategies, as permitted under state and federal law, aimed at

10  managing escalating prescription drug prices and increasing

11  affordable access to prescription drugs for all residents of

12  this state.

13         (c)  The commission shall report to the Office of

14  Program Policy Analysis and Government Accountability on or

15  before September 1, 2005, and annually thereafter to the

16  Legislature on December 31, and shall provide recommendations

17  on needed legislative action and other functions established

18  by this section or requested by the Office of Program Policy

19  Analysis and Government Accountability.

20         (d)  The commission shall immediately commence a study

21  of the fiscal impact to this state of the federal Medicare

22  Prescription Drug Improvement and Modernization Act of 2003

23  and shall report to the Office of Program Policy Analysis and

24  Government Accountability on or before October 15, 2005, as to

25  the findings of the commission.

26         (e)  The commission shall develop an evaluation

27  methodology to certify and audit savings in the discount card

28  program by determining its impact on the growth and profit of

29  the pharmaceutical manufacturers in order to ensure that

30  prices have not been inflated to offset the value or the

31  discount card.

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 1         (f)  The commission shall evaluate the clearinghouse

 2  program and the discount card program and report to the Office

 3  of Program Policy Analysis and Government Accountability its

 4  findings and recommendations for further action by the

 5  Legislature.

 6         (g)  In addition, the commission shall:

 7         1.  Determine whether the implementation of the

 8  programs under this section will jeopardize, reduce, or

 9  penalize the benefits of veterans or other recipients of FSS

10  drug prices, considering their respective copay structures and

11  the pricing mechanisms of their respective programs;

12         2.  Commence negotiations to obtain independent

13  agreements or multistate agreements in as many as 10 states to

14  use or reference a pricing schedule; and

15         3.  Determine the ability to establish a savings of 42

16  percent of the retail cost to be reported to the Office of

17  Program Policy Analysis and Government Accountability.

18         (8)  INVESTIGATION OF CANADIAN DRUGS; WHOLESALING;

19  FEDERAL WAIVERS.--

20         (a)  The commission and the director of the Office of

21  Insurance Regulation may investigate the feasibility of

22  purchasing prescription drugs from sources in Canada, which

23  may include the feasibility of the state or an instrumentality

24  thereof serving as a wholesale distributor of prescription

25  drugs in the state.

26         (b)  Upon a determination by the commission or the

27  Director of the Office of Insurance Regulation that such

28  purchases are feasible and in the best interests of the

29  residents of the state, the commission or the director may

30  pursue waivers from the Federal Government, including without

31  limitation the United States Food and Drug Administration, as

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 1  necessary for the state to accomplish prescription drug

 2  purchasing from sources in Canada. However, if such waiver is

 3  not granted, the commission may take necessary legal action.

 4         (c)  Upon a favorable finding by the appropriate

 5  federal agency or court, notwithstanding any provision of law

 6  to the contrary, the commission or the Director of the Office

 7  of Insurance Regulation may establish and implement a

 8  methodology to provide wholesale drugs to licensed pharmacies

 9  located within this state.

10         (9)  DIRECTOR'S POWERS; ABILITY TO ENTER DRUG

11  PURCHASING CONTRACTS.--Notwithstanding any provision of law to

12  the contrary, this section does not limit the powers and

13  authority granted to the Director of the Office of Insurance

14  Regulation. Notwithstanding any provision of law to the

15  contrary, the Director of the Office of Insurance Regulation

16  may execute prescription drug purchasing agreements.

17         (10)  AGENCY'S MANAGEMENT ABILITY CONTINUED.--This

18  section does not limit the ability of a state agency to enter

19  into contracts or arrangements or to otherwise manage its

20  pharmacy programs until such time as the programs created or

21  authorized pursuant to this section are implemented.

22         (11)  RESTRAINT OF TRADE; CIVIL AND CRIMINAL VIOLATIONS

23  DEFINED.--

24         (a)  Two or more persons may not contract or conspire:

25         1.  For the purpose or with the intent, to fix,

26  control, or maintain the market price, rate, or fee of

27  pharmaceuticals; or

28         2.  To allocate or divide customers or markets, whether

29  functional or geographic, for any pharmaceutical.

30         (b)  A person may not establish, maintain, or use a

31  monopoly or attempt to establish a monopoly of trade or

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 1  commerce, any part of which is within this state, for the

 2  purpose of or with the intent to exclude competition or to

 3  control, fix, or maintain pharmaceutical prices.

 4         (c)  Any person who violates this subsection commits a

 5  felony of the third degree, punishable as provided in section

 6  775.082, section 775.083, or section 775.084, Florida

 7  Statutes, and may be fined in an amount consistent with the

 8  Clayton Act, 15 U.S.C. s. 15 et seq., which may include treble

 9  damages.

10         (d)  Any person who violates this subsection is liable

11  for a civil penalty and fine in an amount consistent with the

12  Clayton Act, 15 U.S.C. s. 15 et seq., which may include treble

13  damages for each violation.

14         (e)  Any state attorney may investigate suspected

15  violations of, and institute criminal proceedings pursuant to,

16  the provisions of this subsection.

17         (f)  The Attorney General shall represent the state in

18  all civil proceedings brought on behalf of the state to

19  enforce the provisions of this section. After payment of all

20  attorney's fees and costs, no less than 50 percent of each

21  judgment or settlement shall be placed in the General Revenue

22  Fund.

23         (12)  ADVERTISING COSTS.--

24         (a)  A manufacturer and labeler of prescription drugs

25  dispensed in this state which employs, directs, or uses

26  marketing representatives shall report advertising costs for

27  prescription drugs, based on aggregate national data, to the

28  commission. This reporting assists the state in its role as a

29  purchaser of prescription drugs and as an administrator of

30  prescription drug programs, enabling the state to determine

31  the scope of prescription drug advertising costs and their

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    Florida Senate - 2005                                   SB 464
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 1  effect on the cost, utilization, and delivery of health care

 2  services, and furthering the role of the state as guardian of

 3  the public interest.

 4         (b)  The commission shall establish the reporting

 5  requirements concerning information by labelers and

 6  manufacturers, which shall include all national aggregate

 7  expenses associated with advertising and direct promotion of

 8  prescription drugs through radio, television, magazines,

 9  newspapers, direct mail, and telephone communications as they

10  pertain to residents of this state.

11         (c)  The following are exempt from disclosure

12  requirements:

13         1.  Free samples of prescription drugs intended to be

14  distributed to patients;

15         2.  Payments of reasonable compensation and

16  reimbursement of expenses in connection with a bona fide

17  clinical trial. As used in this subsection, "clinical trial"

18  means an approved clinical trial conducted in connection with

19  a research study designed to answer specific questions about

20  vaccines, new therapies, or new ways of using known

21  treatments; and

22         3.  Medical scholarships or other support for medical

23  students, residents, and fellows to attend significant

24  educational, scientific, or policy-making conferences of

25  national, regional, or specialty medical or other professional

26  associations if the recipient of the scholarship or other

27  support is selected by the association.

28         (d)  The commission may establish deadlines for

29  reporting and the form, manner, and documentation of reporting

30  required as the commission determines are necessary to

31  effectuate the purpose of this subsection. The commission

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 1  shall report to the Office of Program Policy Analysis and

 2  Government Accountability, in an aggregate form, the

 3  information provided in the required reporting.

 4         (13)  STATE ROLE.--For purposes of implementing this

 5  section, the commission may negotiate pharmaceutical prices to

 6  be paid by program participants. These negotiated prices shall

 7  be available to all programs.

 8         (14)  RULEMAKING.--The commission may adopt rules to

 9  administer this section.

10         (15)  POTENTIAL USE OF SAVINGS.--Savings identified by

11  all program participants shall be quantified and certified to

12  the commission and included in the annual report of the

13  commission to the Governor, the President of the Senate, and

14  the Speaker of the House of Representatives. Savings, or any

15  part thereof, created by the implementation of this section

16  may, in the sole discretion of the Legislature, be directed

17  towards the maintenance of existing state health programs and

18  the expansion of insurance programs for the uninsured and

19  underinsured.

20         Section 2.  This act shall take effect July 1, 2005.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Creates a prescription drug assistance clearinghouse
      program. Requires that costs of program be paid by drug
 4    manufacturers. Provides for the transfer of ownership of
      the program to the state. Establishes a pharmaceutical
 5    discount card program. Provides for eligibility for
      participation in the pharmaceutical discount card
 6    program. Creates the Pharmaceutical Cost Management
      Commission. Establishes membership. Establishes powers
 7    and responsibilities. Provides reporting requirements.
      Authorizes an investigation into the feasibility of
 8    purchasing Canadian drugs. Authorizes the establishment
      of a pricing schedule. Authorizes exploration of numerous
 9    strategies, policies, and programs. Authorizes
      implementation of certain designated programs. Prohibits
10    restraint of trade. Provides civil and criminal
      penalties. Provides for reporting advertising costs and
11    other reporting to the Governor and Legislature. Provides
      rulemaking authority. (See bill for details.)
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