Senate Bill sb0874

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    Florida Senate - 2005                                   SB 874

    By Senator Peaden





    2-593-05

  1                      A bill to be entitled

  2         An act relating to the sale and distribution of

  3         prescription drugs; amending s. 499.003, F.S.;

  4         redefining the term "pedigree paper"; amending

  5         s. 499.0121, F.S.; deleting the expiration

  6         dates of provisions governing recordkeeping and

  7         reporting which apply to wholesale distributors

  8         of prescription drugs, drug repackagers, and

  9         chain drug entities that are part of an

10         affiliated group; providing an effective date.

11  

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

13  

14         Section 1.  Subsection (31) of section 499.003, Florida

15  Statutes, is amended to read:

16         499.003  Definitions of terms used in ss.

17  499.001-499.081.--As used in ss. 499.001-499.081, the term:

18         (31)  "Pedigree paper" means:

19         (a)  A document required pursuant to s. 499.0121(6)(d)

20  or (e); or

21         (b)  Effective July 1, 2006, a document or electronic

22  in a form approved by the Department of Health and containing

23  information that records each distribution of any given legend

24  drug, from sale by a pharmaceutical manufacturer, through

25  acquisition and sale by any wholesaler or repackager, until

26  final sale to a pharmacy or other person administering or

27  dispensing the drug. The information required to be included

28  on a legend drug's pedigree paper must at least detail the

29  amount of the legend drug, its dosage form and strength, its

30  lot numbers, the name and address of each owner of the legend

31  drug and his or her signature, its shipping information,

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 1  including the name and address of each person certifying

 2  delivery or receipt of the legend drug, and a certification

 3  that the recipient has authenticated the pedigree papers. It

 4  must also include the name, address, telephone number and, if

 5  available, e-mail contact information of each wholesaler

 6  involved in the chain of the legend drug's custody. The

 7  department shall adopt rules and a form relating to the

 8  requirements of this paragraph no later than 90 days after the

 9  effective date of this act.

10         Section 2.  Paragraphs (d), (e), and (h) of subsection

11  (6) of section 499.0121, Florida Statutes, are amended to

12  read:

13         499.0121  Storage and handling of prescription drugs;

14  recordkeeping.--The department shall adopt rules to implement

15  this section as necessary to protect the public health,

16  safety, and welfare.  Such rules shall include, but not be

17  limited to, requirements for the storage and handling of

18  prescription drugs and for the establishment and maintenance

19  of prescription drug distribution records.

20         (6)  RECORDKEEPING.--The department shall adopt rules

21  that require keeping such records of prescription drugs as are

22  necessary for the protection of the public health.

23         (d)1.  Each person who is engaged in the wholesale

24  distribution of a prescription drug, and who is not an

25  authorized distributor of record for the drug manufacturer's

26  products, must provide to each wholesale distributor of such

27  drug, before the sale is made to such wholesale distributor, a

28  written statement under oath identifying each previous sale of

29  the drug back to the last authorized distributor of record,

30  the lot number of the drug, and the sales invoice number of

31  the invoice evidencing the sale of the drug. The written

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 1  statement must accompany the drug to the next wholesale

 2  distributor. The department shall adopt rules relating to the

 3  requirements of this written statement. This paragraph does

 4  not apply to a manufacturer unless the manufacturer is

 5  performing the manufacturing operation of repackaging

 6  prescription drugs.

 7         2.  Each wholesale distributor of prescription drugs

 8  must maintain separate and distinct from other required

 9  records all statements that are required under subparagraph 1.

10  and paragraph (e).

11         3.  Each manufacturer of a prescription drug sold in

12  this state must maintain at its corporate offices a current

13  list of authorized distributors and must make such list

14  available to the department upon request.

15         4.  Each manufacturer shall file a written list of all

16  of the manufacturer's authorized distributors of record with

17  the department. A manufacturer shall notify the department not

18  later than 10 days after any change to the list. The

19  department shall publish a list of all authorized distributors

20  of record on its website.

21         5.  For the purposes of this subsection, the term

22  "authorized distributors of record" means a wholesale

23  distributor with whom a manufacturer has established an

24  ongoing relationship to distribute the manufacturer's

25  products. Effective March 1, 2004, an ongoing relationship is

26  deemed to exist when a wholesale distributor, including any

27  affiliated group, as defined in s. 1504 of the Internal

28  Revenue Code, of which the wholesale distributor is a member:

29         a.  Is listed on the manufacturer's current list of

30  authorized distributors of record.

31  

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 1         b.  Annually purchases not less than 90 percent of all

 2  of its purchases of a manufacturer's prescription drug

 3  products, based on dollar volume, directly from that

 4  manufacturer and has total annual prescription drug sales of

 5  $100 million or more.

 6         c.  Has reported to the department pursuant to s.

 7  499.012(3)(g)2. that the wholesale distributor has total

 8  annual prescription drug sales of $100 million or more, and

 9  has a verifiable account number issued by the manufacturer

10  authorizing the wholesale distributor to purchase the

11  manufacturer's drug products directly from that manufacturer

12  and that wholesale distributor makes not fewer than 12

13  purchases of that manufacturer's drug products directly from

14  the manufacturer using said verifiable account number in 12

15  months. The provisions of this sub-subparagraph apply with

16  respect to a manufacturer that fails to file a copy of the

17  manufacturer's list of authorized distributors of record with

18  the department by July 1, 2003; that files a list of

19  authorized distributors of record which contains fewer than 10

20  wholesale distributors permitted in this state, excluding the

21  wholesale distributors described in sub-subparagraph b.; or

22  that, as a result of changes to the list of authorized

23  distributors of record filed with the department, has fewer

24  than 10 wholesale distributors permitted in this state as

25  authorized distributors of record, excluding the wholesale

26  distributors described in sub-subparagraph b.

27  

28  A wholesale distributor that satisfies the requirements of

29  sub-subparagraph b. or sub-subparagraph c. shall submit to the

30  department documentation substantiating its qualification

31  pursuant to sub-subparagraph b. or sub-subparagraph c. The

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 1  department shall add those wholesale distributors that the

 2  department has determined have met the requirements of

 3  sub-subparagraph b. or sub-subparagraph c. to the list of

 4  authorized distributors of record on the department's website.

 5         6.  This paragraph expires July 1, 2006.

 6         (e)1.  Notwithstanding paragraph (d), each person who

 7  is engaged in the wholesale distribution of a specified drug

 8  must provide to each wholesale distributor of such specified

 9  drug:

10         a.  Upon any sale, a written statement that:

11         (I)  If the establishment is not a member of an

12  affiliated group: "This establishment purchased the specific

13  unit of the specified drug directly from the manufacturer"; or

14         (II)  If the establishment is a member of an affiliated

15  group: "This establishment or a member of my affiliated group

16  purchased the specific unit of the specified drug directly

17  from the manufacturer"; or

18         b.  Before the wholesale distribution, a written

19  statement, under oath, that identifies each previous sale of

20  the specific unit of the specified drug back to the

21  manufacturer of the specified drug, the lot number of the

22  specific unit of the specified prescription drug, and the

23  sales invoice number of the invoice evidencing each previous

24  sale of the specific unit of the specified drug. The written

25  statement identifying all sales of such specific unit of the

26  specified drug must accompany the specific unit of the

27  specified drug for each subsequent wholesale distribution of

28  the specific unit of the specified drug to a wholesale

29  distributor.

30  

31  

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 1  The department shall adopt rules to administer the

 2  requirements of these written statements.

 3         2.  As used in this paragraph, the term "specified

 4  drug" means a specific prescription drug on the list of drugs

 5  adopted by the department by rule.

 6         3.a.  A drug may be placed on the list of specified

 7  drugs if the department has seized or issued a stop sale

 8  notice on the prescription drug because of the adulteration,

 9  counterfeiting, or diversion of the prescription drug from the

10  legal channels of distribution for prescription drugs, or the

11  United States Food and Drug Administration, a manufacturer, a

12  wholesale distributor, a law enforcement agency, or a

13  government agency responsible for regulating the sale or

14  distribution of prescription drugs in another state has

15  notified the department in writing or through a website

16  operated by one of said entities that the prescription drug

17  has been adulterated, counterfeited, or diverted from the

18  legal channels of distribution for prescription drugs; and the

19  prescription drug satisfies one of the following criteria:

20         (I)  The prescription drug is included among the top

21  150 prescription drugs for which the state has incurred the

22  highest amount of Medicaid claims in the most recently ended

23  state fiscal year;

24         (II)  The prescription drug is available for normal

25  prescription use in dosages or strengths that have a wholesale

26  cost of $200 or more;

27         (III)  The prescription drug is used extensively for

28  patients with human immunodeficiency virus, acquired immune

29  deficiency syndrome, cancer, or other serious,

30  life-threatening conditions, where drug nonresponsiveness

31  would not be considered to be medically unusual;

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 1         (IV)  The prescription drug is an injectable drug;

 2         (V)  The prescription drug is subject to a special,

 3  limited distribution process and is not generally sold to

 4  wholesale distributors by the manufacturer of the prescription

 5  drug;

 6         (VI)  The department has found not less than five

 7  instances where statements required pursuant to paragraph (d)

 8  for the prescription drug were not passed on other than

 9  because of unintentional oversight, or have been passed on by

10  or to a wholesale distributor and such statements were

11  fraudulent; or

12         (VII)  A shipment of a prescription drug has been

13  reported to a law enforcement agency as having been stolen or

14  as missing.

15         b.  A prescription drug may be placed on the list of

16  specified drugs if the prescription drug satisfies any three

17  of the seven criteria set forth in sub-sub-subparagraphs

18  (I)-(VII). However, a prescription drug may not be included on

19  the list of specified drugs if the prescription drug is

20  unlikely to be counterfeited or diverted from the legal

21  channels of distribution for prescription drugs.

22         c.  Before the department begins the rulemaking process

23  to place a drug on the list of specified drugs, except when

24  the department files a rule under the procedure specified in

25  sub-subparagraph e., the Drug Wholesaler Advisory Council

26  created in s. 499.01211 shall consider whether a prescription

27  drug should be included on or added to the list of specified

28  drugs using the criteria enumerated in sub-subparagraph a. or

29  sub-subparagraph b. and provide a written recommendation

30  adopted by majority vote to the secretary of the department

31  concerning each such drug. This paragraph does not apply to

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 1  any list of prescription drugs on which the department has

 2  begun rulemaking prior to this paragraph becoming law.

 3         d.  When a prescription drug is added to the list of

 4  specified drugs, the requirements of this paragraph shall be

 5  effective as to the prescription drug beginning 60 days after

 6  the effective date of the rule adding the prescription drug to

 7  the list, except when the department files a rule under the

 8  procedure specified in sub-subparagraph e.

 9         e.(I)  Notwithstanding chapter 120, if the Attorney

10  General or Statewide Prosecutor certifies to the secretary of

11  the department that a prescription drug should be added to the

12  list of specified drugs by emergency rule, the department may

13  proceed to add such drug to the list of specified drugs and

14  the emergency rule shall be effective for a period of 1 year

15  from the date on which the emergency rule is filed, if the

16  department begins the rulemaking process to adopt a permanent

17  rule to place the drug on the list of specified drugs not

18  later than 90 days after the date on which the emergency rule

19  was filed. An emergency rule adding a drug to the list of

20  specified drugs may not be renewed.

21         (II)  A prescription drug may be placed on the list of

22  specified drugs through the procedure provided in this

23  sub-subparagraph when:

24         (A)  The prescription drug satisfies any two of the

25  criteria specified in sub-subparagraph a. or sub-subparagraph

26  b.; or

27         (B)  The prescription drug satisfies any one of the

28  criteria specified in sub-subparagraph a. or sub-subparagraph

29  b. if the prescription drug has not yet become available for

30  wholesale distribution or has been available for wholesale

31  distribution for not more than 60 days.

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 1         (III)  Notwithstanding chapter 120, any emergency rule

 2  that places a prescription drug on the list of specified drugs

 3  may be challenged as being an invalid exercise of the

 4  delegated legislative authority only if the department lacks

 5  any substantial competent evidence that the prescription drug

 6  satisfied the criteria required pursuant to

 7  sub-sub-subparagraph (I) or sub-sub-subparagraph (II). Not

 8  later than 7 days after any request by any person, the

 9  department shall provide such person with the substantial

10  competent evidence that justifies the department's adoption of

11  an emergency rule placing a prescription drug on the list of

12  specified drugs.

13         (IV)  The department shall notify all prescription drug

14  wholesalers and out-of-state prescription drug wholesalers by

15  electronic means, facsimile, or United States mail and on the

16  bureau's website when any emergency rule is adopted which

17  places a prescription drug on the list of specified drugs. Not

18  later than 7 days after the department adopts an emergency

19  rule placing a prescription drug on the list of specified

20  drugs, wholesalers shall provide the department with the lot

21  numbers and quantities of such prescription drug which the

22  wholesaler owns or has in transit on the date that the

23  department adopted the emergency rule placing the prescription

24  drug on the list of specified drugs.

25         (V)  The requirements of subparagraph 1. do not apply

26  to those lot numbers and quantities of a prescription drug

27  which are included on a report filed pursuant to

28  sub-sub-subparagraph (IV), and paragraph (d) shall apply to

29  those lot numbers and quantities of the prescription drug. In

30  addition to the requirements of paragraph (d), any wholesale

31  distributor selling a prescription drug included on a report

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 1  filed pursuant to sub-sub-subparagraph (IV) shall provide any

 2  wholesaler purchasing the prescription drugs with a statement

 3  under oath that the prescription drugs are among those

 4  included on a report filed pursuant to sub-sub-subparagraph

 5  (IV) and with a copy of the report filed by the wholesale

 6  distributor with the department for those prescription drugs.

 7         f.  Not less than annually, the council and department

 8  shall evaluate whether each prescription drug included on the

 9  list of specified drugs should remain on the list. In

10  determining whether a prescription drug should remain on the

11  list of specified drugs, the council and department must

12  consider:

13         (I)  The availability of generic forms of the drug.

14         (II)  Changes in the price of the drug since the

15  prescription drug was placed on the list.

16         (III)  The current status of the drug that caused the

17  department to place the prescription drug on the list of

18  specified drugs.

19  

20  The council shall provide a written recommendation adopted by

21  majority vote to the secretary of the department concerning

22  each drug that the council recommends be removed from the list

23  of specified drugs.

24         4.  This paragraph does not apply to a manufacturer;

25  however, a repackager must comply with this paragraph.

26         5.  This paragraph expires July 1, 2006.

27         (h)1.  This paragraph applies only to an affiliated

28  group, as defined by s. 1504 of the Internal Revenue Code of

29  1986, as amended, which is composed of chain drug entities,

30  including at least 50 retail pharmacies, warehouses, or

31  

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 1  repackagers, which are members of the same affiliated group,

 2  if the affiliated group:

 3         a.  Discloses to the department the names of all its

 4  members; and

 5         b.  Agrees in writing to provide records on

 6  prescription drug purchases by members of the affiliated group

 7  not later than 48 hours after the department requests such

 8  records, regardless of the location where the records are

 9  stored.

10         2.  Each warehouse within the affiliated group must

11  comply with all applicable federal and state drug wholesale

12  permit requirements and must purchase, receive, hold, and

13  distribute prescription drugs only to a retail pharmacy or

14  warehouse within the affiliated group. Such a warehouse is

15  exempt from providing a pedigree paper in accordance with

16  paragraphs (d) and (e) to its affiliated group member

17  warehouse, provided that:

18         a.  Any affiliated group member that purchases or

19  receives a prescription drug from outside the affiliated group

20  must receive a pedigree paper if the prescription drug is

21  distributed in or into this state and a pedigree paper is

22  required under this section and must authenticate the

23  documentation as required in subsection (4), regardless of

24  whether the affiliated group member is directly subject to

25  regulation under this chapter; and

26         b.  The affiliated group makes available to the

27  department on request all records related to the purchase or

28  acquisition of prescription drugs by members of the affiliated

29  group, regardless of the location where the records are

30  stored, if the prescription drugs were distributed in or into

31  this state.

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 1         3.  If a repackager repackages prescription drugs

 2  solely for distribution to its affiliated group members for

 3  the exclusive distribution to and among retail pharmacies that

 4  are members of the affiliated group to which the repackager is

 5  a member:

 6         a.  The repackager must:

 7         (I)  In lieu of the written statement required by

 8  paragraph (d) or paragraph (e), for all repackaged

 9  prescription drugs distributed in or into this state, state in

10  writing under oath with each distribution of a repackaged

11  prescription drug to an affiliated group member warehouse or

12  repackager: "All repackaged prescription drugs are purchased

13  by the affiliated group directly from the manufacturer or from

14  a prescription drug wholesaler that purchased the prescription

15  drugs directly from the manufacturer.";

16         (II)  Purchase all prescription drugs it repackages:

17         (A)  Directly from the manufacturer; or

18         (B)  From a prescription drug wholesaler that purchased

19  the prescription drugs directly from the manufacturer; and

20         (III)  Maintain records in accordance with this section

21  to document that it purchased the prescription drugs directly

22  from the manufacturer or that its prescription drug wholesale

23  supplier purchased the prescription drugs directly from the

24  manufacturer.

25         b.  All members of the affiliated group must provide to

26  agents of the department on request records of purchases by

27  all members of the affiliated group of prescription drugs that

28  have been repackaged, regardless of the location where the

29  records are stored or where the repackager is located.

30         4.  This paragraph expires July 1, 2006.

31  

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 1         Section 3.  This act shall take effect upon becoming a

 2  law.

 3  

 4            *****************************************

 5                          SENATE SUMMARY

 6    Redefines the term "pedigree paper" for purposes of the
      Florida Drug and Cosmetic Act. Deletes the expiration
 7    dates of provisions governing the wholesale distribution
      of prescription drugs.
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