Florida Senate - 2009 SB 310
By Senator Rich
34-00171A-09 2009310__
1 A bill to be entitled
2 An act relating to reproductive health services and
3 family planning; creating the “Prevention First Act”;
4 providing definitions; providing duties of licensed
5 health care practitioners and facilities relating to
6 the treatment of rape survivors; requiring the
7 Department of Health to provide certain information;
8 requiring the Agency for Health Care Administration to
9 provide for enforcement and impose penalties;
10 requiring the agency to adopt rules; amending s.
11 390.011, F.S.; defining the term “contraception”;
12 creating s. 390.027, F.S.; specifying that the
13 provision of contraception is not subject to ch. 390,
14 F.S., relating to the termination of pregnancies;
15 creating s. 465.191, F.S.; providing definitions;
16 requiring licensed pharmacies to dispense certain
17 forms of contraception without delay; specifying
18 conditions under which a pharmacy may refuse to
19 provide a contraceptive; providing for a person to
20 file a complaint with the Department of Health if he
21 or she believes that a violation of such provisions
22 has occurred; providing for the Attorney General to
23 bring a civil action; amending ss. 465.016 and
24 465.023, F.S.; providing that a violation of
25 requirements for dispensing contraception constitutes
26 grounds for the Department of Health or the Board of
27 Pharmacy to impose disciplinary action or suspend or
28 revoke a pharmacist's license or permit; providing for
29 severability; providing an effective date.
30
31 WHEREAS, although the Centers for Disease Control and
32 Prevention included family planning in its published list of Ten
33 Great Public Health Achievements in the 20th Century, the United
34 States still has one of the highest rates of unintended
35 pregnancies among industrialized nations, and
36 WHEREAS, the Legislature finds that family planning is
37 basic health care for women and that access to contraception
38 helps women prevent unintended pregnancy and control the timing
39 and spacing of planned births, and
40 WHEREAS, 46.3 percent of pregnancies among women in this
41 state are unintended according to the Florida Pregnancy Risk
42 Assessment Monitoring System initiated by the United States
43 Centers for Disease Control and Prevention and the Florida
44 Department of Health, and
45 WHEREAS, currently more than 1.7 million women in Florida
46 are in need of contraceptive services and supplies, and
47 WHEREAS, the Legislature finds that the victimization of
48 women through rape is compounded by the possibility that the
49 rape survivors may suffer unintended pregnancies, and half of
50 such pregnancies end in abortion, and
51 WHEREAS, women rely on prescription contraceptives for a
52 range of medical purposes in addition to birth control, such as
53 regulation of menstrual cycles and the treatment of
54 endometriosis, and
55 WHEREAS, the Legislature further finds that providing
56 access to family planning information, family planning services,
57 and birth control will prevent abortions and unintended
58 pregnancies, thereby significantly reducing the number of women
59 and teens who need medical assistance, Medicaid, Kidcare, and
60 other social services, and
61 WHEREAS, the Legislature recognizes that the most recent
62 study of women in need of family planning services by the
63 Florida State University Center for Prevention and Early
64 Intervention Policy found that only 26 percent of women in this
65 state who are in need of such services are currently receiving
66 them, and
67 WHEREAS, according to the Department of Health's Family
68 Planning Program, for every dollar spent on family planning
69 services, up to $24 is saved as a result of averting
70 expenditures for public programs that support women who have
71 unintended pregnancies and their infants, NOW, THEREFORE,
72
73 Be It Enacted by the Legislature of the State of Florida:
74
75 Section 1. This act may be cited as the “Prevention First
76 Act.”
77 Section 2. Treatment for survivors of rape.—
78 (1) DEFINITIONS.—As used in this section, the term:
79 (a) “Agency” means the Agency for Health Care
80 Administration.
81 (b) “Care to a rape survivor” means medical examinations,
82 procedures, and services provided to a rape survivor.
83 (c) “Department” means the Department of Health.
84 (d) “Emergency contraception” means one or more
85 prescription or over-the-counter drugs used separately or in
86 combination to be administered to or self-administered by a
87 patient to prevent pregnancy within a medically recommended
88 amount of time after sexual intercourse and dispensed for that
89 purpose, in accordance with professional standards of practice,
90 and determined to be safe by the United States Food and Drug
91 Administration.
92 (e) “Health care facility” means a facility licensed under
93 chapter 395, Florida Statutes.
94 (f) “Incest” means a sexual offense described in s. 826.04,
95 Florida Statutes.
96 (g) “Medically and factually accurate” means information
97 that is supported by the weight of research conducted in
98 compliance with accepted scientific methods and that is
99 recognized as accurate and objective by leading professional
100 organizations and agencies having relevant expertise in the
101 field.
102 (h) “Rape” means sexual battery as described in ss. 794.011
103 and 827.071, Florida Statutes.
104 (i) “Rape survivor” means a person who alleges or is
105 alleged to have been raped or who is the victim of alleged
106 incest and because of the alleged offense seeks treatment as a
107 patient.
108 (2) DUTIES OF LICENSED PRACTITIONERS AND FACILITIES.—
109 (a) A health care practitioner licensed under chapter 458,
110 chapter 459, or chapter 464, Florida Statutes, or a health care
111 facility licensed under chapter 395, Florida Statutes, providing
112 care to a rape survivor shall:
113 1. Provide each female rape survivor with medically and
114 factually accurate, clear, and concise information concerning
115 emergency contraception, including its indications and
116 contraindications and the risks associated with its use.
117 2. Inform each female rape survivor of her medical option
118 to receive emergency contraception.
119 (b) If emergency contraception is requested, the health
120 care practitioner or health care facility shall immediately
121 provide the female rape survivor with the complete regimen of
122 emergency contraception, unless contraindicated as determined by
123 a pregnancy test approved by the United States Food and Drug
124 Administration.
125 (c) The Agency for Health Care Administration, with input
126 from the Florida Hospital Association and the Florida Council
127 Against Sexual Violence, shall adopt a protocol to implement the
128 requirements of this subsection.
129 (3) PATIENT INFORMATION.—
130 (a) The department shall:
131 1. Develop, prepare, and produce informational materials
132 relating to emergency contraception for the prevention of
133 pregnancy for distribution to and use in all health care
134 facilities in the state which provide care to rape survivors, in
135 quantities sufficient to comply with the requirements of this
136 section, to the extent that funds are available.
137 2. Develop, prepare, and post information on the
138 department's Internet website relating to the duty of licensed
139 health care practitioners and health care facilities to provide
140 emergency contraception to female rape survivors.
141 (b) Information provided to female rape survivors or female
142 victims of sexual assault must:
143 1. Be medically and factually accurate;
144 2. Be clearly written, readily comprehensible, and
145 culturally appropriate as determined by the department, in
146 collaboration with community sexual assault programs and other
147 relevant stakeholders; and
148 3. Explain the nature of emergency contraception, including
149 its use, safety, efficacy, and availability.
150 (4) ENFORCEMENT AND PENALTIES.—
151 (a) In addition to any other remedies provided by law, the
152 agency shall respond to complaints, using all available
153 investigative tools, and shall periodically review whether a
154 health care facility is in compliance with this section. If the
155 agency finds that a health care facility is not in compliance
156 with this section, the agency shall:
157 1. Impose a fine of $5,000 per woman who is:
158 a. Denied medically and factually accurate and objective
159 information about emergency contraception;
160 b. Not informed of her medical option to receive emergency
161 contraception; or
162 c. Not provided the complete regimen of emergency
163 contraception, if emergency contraception is requested.
164 2. Impose a fine of $5,000 for failure to comply with this
165 section. For every 30 days that a health care facility is not in
166 compliance with this section, an additional fine of $5,000 shall
167 be imposed.
168 (b) The agency shall adopt rules as necessary to administer
169 the provisions of this section.
170 Section 3. Subsection (9) is added to section 390.011,
171 Florida Statutes, to read:
172 390.011 Definitions.—As used in this chapter, the term:
173 (9) “Contraception” means any drug or device approved by
174 the United States Food and Drug Administration to prevent
175 pregnancy.
176 Section 4. Section 390.027, Florida Statutes, is created to
177 read:
178 390.027 Access to contraception.—The provision of
179 contraception is not subject to or governed by this chapter.
180 Section 5. Section 465.191, Florida Statutes, is created to
181 read:
182 465.191 Patient contraceptive protection.—
183 (1) DEFINITIONS.—As used in this section, the term:
184 (a) “Contraception” or “contraceptive” means any
185 prescription drug or over-the-counter oral contraceptive
186 approved by the United States Food and Drug Administration to
187 prevent pregnancy.
188 (b) “Employee” means a person hired, by contract or any
189 other form of agreement, by a pharmacy.
190 (c) “Product” means a drug or device approved by the United
191 States Food and Drug Administration.
192 (d) “Professional clinical judgment” means the use of
193 professional knowledge and skills to form a clinical judgment in
194 accordance with prevailing medical standards.
195 (e) “Without delay,” with respect to a pharmacy dispensing
196 a prescription for contraception, means within the pharmacy's
197 customary timeframe for dispensing the prescription for other
198 products.
199 (2) DUTIES OF LICENSED PHARMACIES.—
200 (a) If a patient requests a contraceptive that is in stock,
201 the pharmacy shall ensure that the contraceptive is provided to
202 the patient or patient representative without delay.
203 (b) A pharmacy shall ensure that its employees do not:
204 1. Intimidate, threaten, or harass a patient in the
205 delivery of services relating to a request for contraception;
206 2. Interfere with or obstruct the delivery of services
207 relating to a request for contraception;
208 3. Intentionally misrepresent or deceive a patient about
209 the availability of contraception or its mechanism of action;
210 4. Breach medical confidentiality with respect to a request
211 for contraception or threaten to breach such confidentiality; or
212 5. Refuse to return a valid, lawful prescription for
213 contraception upon a patient's or patient representative's
214 request.
215 (c) This section does not prohibit a pharmacy from refusing
216 to provide a contraceptive to a patient if:
217 1. It is unlawful to dispense the contraceptive to the
218 patient without a valid, lawful prescription and such
219 prescription is not presented;
220 2. The patient or patient representative is unable to pay
221 for the contraceptive; or
222 3. The employee of the pharmacy refuses to provide the
223 contraceptive on the basis of a professional clinical judgment.
224 (d) This section does not prevent a pharmacist or other
225 person from refusing to furnish any in-stock contraceptive for
226 religious reasons so long as the pharmacy reasonably
227 accommodates the patient or patient representative without delay
228 and in compliance with this section.
229 (e) This section does not alter any standard established
230 under the Florida Civil Rights Act of 1992.
231 (f) Any person who believes that a violation of this
232 section has occurred may file a complaint with the Department of
233 Health.
234 (g) If the Attorney General has reasonable cause to believe
235 that any person or group of persons is being, has been, or may
236 be injured by conduct constituting a violation of this section,
237 the Attorney General may bring a civil action in the name of the
238 state, as parens patriae on behalf of natural persons residing
239 in the state.
240 Section 6. Paragraph (t) is added to subsection (1) of
241 section 465.016, Florida Statutes, to read:
242 465.016 Disciplinary actions.—
243 (1) The following acts constitute grounds for denial of a
244 license or disciplinary action, as specified in s. 456.072(2):
245 (t) Violating the provisions of s. 465.191.
246 Section 7. Subsection (1) of section 465.023, Florida
247 Statutes, is amended to read:
248 465.023 Pharmacy permittee; disciplinary action.—
249 (1) The department or the board may revoke or suspend the
250 permit of any pharmacy permittee, and may fine, place on
251 probation, or otherwise discipline any pharmacy permittee who
252 has:
253 (a) Obtained a permit by misrepresentation or fraud or
254 through an error of the department or the board;
255 (b) Attempted to procure, or has procured, a permit for any
256 other person by making, or causing to be made, any false
257 representation;
258 (c) Violated any of the requirements of this chapter or any
259 of the rules of the Board of Pharmacy; of chapter 499, known as
260 the “Florida Drug and Cosmetic Act”; of 21 U.S.C. ss. 301-392,
261 known as the “Federal Food, Drug, and Cosmetic Act”; of 21
262 U.S.C. ss. 821 et seq., known as the Comprehensive Drug Abuse
263 Prevention and Control Act; or of chapter 893;
264 (d) Been convicted or found guilty, regardless of
265 adjudication, of a felony or any other crime involving moral
266 turpitude in any of the courts of this state, of any other
267 state, or of the United States; or
268 (e) Dispensed any medicinal drug based upon a communication
269 that purports to be a prescription as defined by s. 465.003(14)
270 or s. 893.02 when the pharmacist knows or has reason to believe
271 that the purported prescription is not based upon a valid
272 practitioner-patient relationship that includes a documented
273 patient evaluation, including history and a physical examination
274 adequate to establish the diagnosis for which any drug is
275 prescribed and any other requirement established by board rule
276 under chapter 458, chapter 459, chapter 461, chapter 463,
277 chapter 464, or chapter 466; or.
278 (f) Violated the provisions of s. 465.191.
279 Section 8. If any provision of this act or the application
280 thereof to any person or circumstance is held invalid, the
281 invalidity does not affect other provisions or applications of
282 the act which can be given effect without the invalid provision
283 or application, and to this end the provisions of this act are
284 severable.
285 Section 9. This act shall take effect upon becoming a law.