| 1 | A bill to be entitled |
| 2 | An act relating to reproductive health services and family |
| 3 | planning; creating the "Prevention First Act"; providing |
| 4 | definitions; providing duties of licensed health care |
| 5 | practitioners and facilities relating to the treatment of |
| 6 | rape survivors; requiring the Department of Health to |
| 7 | provide certain information; requiring the Agency for |
| 8 | Health Care Administration to provide for enforcement and |
| 9 | impose penalties; requiring the agency to adopt rules; |
| 10 | amending s. 390.011, F.S.; defining the term |
| 11 | "contraception"; creating s. 390.027, F.S.; specifying |
| 12 | that the provision of contraception is not subject to ch. |
| 13 | 390, F.S., relating to the termination of pregnancies; |
| 14 | creating s. 465.191, F.S.; providing definitions; |
| 15 | requiring licensed pharmacies to dispense certain forms of |
| 16 | contraception without delay; specifying conditions under |
| 17 | which a pharmacy may refuse to provide a contraceptive; |
| 18 | providing for a person to file a complaint with the |
| 19 | Department of Health if he or she believes that a |
| 20 | violation of such provisions has occurred; providing for |
| 21 | the Attorney General to bring a civil action; amending ss. |
| 22 | 465.016 and 465.023, F.S.; providing that a violation of |
| 23 | requirements for dispensing contraception constitutes |
| 24 | grounds for the Department of Health or the Board of |
| 25 | Pharmacy to impose disciplinary action or suspend or |
| 26 | revoke a pharmacist's license or permit; providing for |
| 27 | severability; providing an effective date. |
| 28 |
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| 29 | WHEREAS, although the Centers for Disease Control and |
| 30 | Prevention included family planning in its published list of Ten |
| 31 | Great Public Health Achievements in the 20th Century, the United |
| 32 | States still has one of the highest rates of unintended |
| 33 | pregnancies among industrialized nations, and |
| 34 | WHEREAS, the Legislature finds that family planning is |
| 35 | basic health care for women and that access to contraception |
| 36 | helps women prevent unintended pregnancy and control the timing |
| 37 | and spacing of planned births, and |
| 38 | WHEREAS, 46.3 percent of pregnancies among women in this |
| 39 | state are unintended according to the Florida Pregnancy Risk |
| 40 | Assessment Monitoring System initiated by the United States |
| 41 | Centers for Disease Control and Prevention and the Florida |
| 42 | Department of Health, and |
| 43 | WHEREAS, 98 percent of all women will use contraception at |
| 44 | some point in their lifetime according to the Guttmacher |
| 45 | Institute, and |
| 46 | WHEREAS, currently more than 1.9 million women in Florida |
| 47 | are in need of contraceptive services and supplies, and |
| 48 | WHEREAS, the Legislature finds that the victimization of |
| 49 | women through rape is compounded by the possibility that the |
| 50 | rape survivors may suffer unintended pregnancies, and half of |
| 51 | such pregnancies end in abortion, and |
| 52 | WHEREAS, women rely on prescription contraceptives for a |
| 53 | range of medical purposes in addition to birth control, such as |
| 54 | regulation of menstrual cycles and the treatment of |
| 55 | endometriosis, and |
| 56 | WHEREAS, the Legislature further finds that providing |
| 57 | access to family planning information, family planning services, |
| 58 | and birth control will prevent abortions and unintended |
| 59 | pregnancies, thereby significantly reducing the number of women |
| 60 | and teens who need medical assistance, Medicaid, Kidcare, and |
| 61 | other social services, and |
| 62 | WHEREAS, the Legislature recognizes that the most recent |
| 63 | study of women in need of family planning services by the |
| 64 | Florida State University Center for Prevention and Early |
| 65 | Intervention Policy found that only 26 percent of women in this |
| 66 | state who are in need of such services are currently receiving |
| 67 | them, and |
| 68 | WHEREAS, according to the Department of Health's Family |
| 69 | Planning Program, for every dollar spent on family planning |
| 70 | services, up to $24 is saved as a result of averting |
| 71 | expenditures for public programs that support women who have |
| 72 | unintended pregnancies and their infants, NOW, THEREFORE, |
| 73 |
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| 74 | Be It Enacted by the Legislature of the State of Florida: |
| 75 |
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| 76 | Section 1. This act may be cited as the "Prevention First |
| 77 | Act." |
| 78 | Section 2. Treatment for survivors of rape.- |
| 79 | (1) DEFINITIONS.-As used in this section, the term: |
| 80 | (a) "Agency" means the Agency for Health Care |
| 81 | Administration. |
| 82 | (b) "Care to a rape survivor" means medical examinations, |
| 83 | procedures, and services provided to a rape survivor. |
| 84 | (c) "Department" means the Department of Health. |
| 85 | (d) "Emergency contraception" means one or more |
| 86 | prescription or over-the-counter drugs used separately or in |
| 87 | combination to be administered to or self-administered by a |
| 88 | patient to prevent pregnancy within a medically recommended |
| 89 | amount of time after sexual intercourse and dispensed for that |
| 90 | purpose, in accordance with professional standards of practice, |
| 91 | and determined to be safe by the United States Food and Drug |
| 92 | Administration. |
| 93 | (e) "Health care facility" means a facility licensed under |
| 94 | chapter 395, Florida Statutes. |
| 95 | (f) "Incest" means a sexual offense described in s. |
| 96 | 826.04, Florida Statutes. |
| 97 | (g) "Medically and factually accurate" means information |
| 98 | that is supported by the weight of research conducted in |
| 99 | compliance with accepted scientific methods and that is |
| 100 | recognized as accurate and objective by leading professional |
| 101 | organizations and agencies having relevant expertise in the |
| 102 | field. |
| 103 | (h) "Rape" means sexual battery as described in ss. |
| 104 | 794.011 and 827.071, Florida Statutes. |
| 105 | (i) "Rape survivor" means a person who alleges or is |
| 106 | alleged to have been raped or who is the victim of alleged |
| 107 | incest and because of the alleged offense seeks treatment as a |
| 108 | patient. |
| 109 | (2) DUTIES OF LICENSED PRACTITIONERS AND FACILITIES.- |
| 110 | (a) A health care practitioner licensed under chapter 458, |
| 111 | chapter 459, or chapter 464, Florida Statutes, or a health care |
| 112 | facility licensed under chapter 395, Florida Statutes, providing |
| 113 | care to a rape survivor shall: |
| 114 | 1. Provide each female rape survivor with medically and |
| 115 | factually accurate, clear, and concise information concerning |
| 116 | emergency contraception, including its indications and |
| 117 | contraindications and the risks associated with its use. |
| 118 | 2. Inform each female rape survivor of her medical option |
| 119 | to receive emergency contraception. |
| 120 | (b) If emergency contraception is requested, the health |
| 121 | care practitioner or health care facility shall immediately |
| 122 | provide the female rape survivor with the complete regimen of |
| 123 | emergency contraception, unless contraindicated as determined by |
| 124 | a pregnancy test approved by the United States Food and Drug |
| 125 | Administration. |
| 126 | (c) The Agency for Health Care Administration, with input |
| 127 | from the Florida Hospital Association and the Florida Council |
| 128 | Against Sexual Violence, shall adopt a protocol to implement the |
| 129 | requirements of this subsection. |
| 130 | (3) PATIENT INFORMATION.- |
| 131 | (a) The department shall: |
| 132 | 1. Develop, prepare, and produce informational materials |
| 133 | relating to emergency contraception for the prevention of |
| 134 | pregnancy for distribution to and use in all health care |
| 135 | facilities in the state which provide care to rape survivors, in |
| 136 | quantities sufficient to comply with the requirements of this |
| 137 | section, to the extent that funds are available. |
| 138 | 2. Develop, prepare, and post information on the |
| 139 | department's Internet website relating to the duty of licensed |
| 140 | health care practitioners and health care facilities to provide |
| 141 | emergency contraception to female rape survivors. |
| 142 | (b) Information provided to female rape survivors or |
| 143 | female victims of sexual assault must: |
| 144 | 1. Be medically and factually accurate; |
| 145 | 2. Be clearly written, readily comprehensible, and |
| 146 | culturally appropriate as determined by the department, in |
| 147 | collaboration with community sexual assault programs and other |
| 148 | relevant stakeholders; and |
| 149 | 3. Explain the nature of emergency contraception, |
| 150 | including its use, safety, efficacy, and availability. |
| 151 | (4) ENFORCEMENT AND PENALTIES.- |
| 152 | (a) In addition to any other remedies provided by law, the |
| 153 | agency shall respond to complaints using all available |
| 154 | investigative tools and shall, in the course of other compliance |
| 155 | reviews, determine whether a health care facility is in |
| 156 | compliance with this section. If the agency finds that a health |
| 157 | care facility is not in compliance with this section, the agency |
| 158 | shall: |
| 159 | 1. Impose a fine of $5,000 per woman who is: |
| 160 | a. Denied medically and factually accurate information |
| 161 | about emergency contraception and not informed of her medical |
| 162 | option to receive emergency contraception; or |
| 163 | b. Not provided the complete regimen of emergency |
| 164 | contraception, if emergency contraception is requested. |
| 165 | 2. Impose a fine of $5,000 for failure to comply with this |
| 166 | section and an additional fine of $5,000 for every 30 days of |
| 167 | noncompliance. |
| 168 | (b) The agency shall adopt rules as necessary to |
| 169 | administer the provisions of this section. |
| 170 | Section 3. Present subsections (4) through (8) of section |
| 171 | 390.011, Florida Statutes, are redesignated as subsections (5) |
| 172 | through (9), respectively, and a new subsection (4) is added to |
| 173 | that section, to read: |
| 174 | 390.011 Definitions.-As used in this chapter, the term: |
| 175 | (4) "Contraception" means any drug or device approved by |
| 176 | the United States Food and Drug Administration to prevent |
| 177 | pregnancy. |
| 178 | Section 4. Section 390.027, Florida Statutes, is created |
| 179 | to read: |
| 180 | 390.027 Access to contraception.-The provision of |
| 181 | contraception is not subject to or governed by this chapter. |
| 182 | Section 5. Section 465.191, Florida Statutes, is created |
| 183 | to read: |
| 184 | 465.191 Patient contraceptive protection.- |
| 185 | (1) DEFINITIONS.-As used in this section, the term: |
| 186 | (a) "Contraception" or "contraceptive" means any |
| 187 | prescription drug or over-the-counter oral contraceptive |
| 188 | approved by the United States Food and Drug Administration to |
| 189 | prevent pregnancy. |
| 190 | (b) "Employee" means a person hired, by contract or any |
| 191 | other form of agreement, by a pharmacy. |
| 192 | (c) "Product" means a drug or device approved by the |
| 193 | United States Food and Drug Administration. |
| 194 | (d) "Professional clinical judgment" means the use of |
| 195 | professional knowledge and skills to form a clinical judgment in |
| 196 | accordance with prevailing medical standards. |
| 197 | (e) "Without delay," with respect to a pharmacy dispensing |
| 198 | a prescription for contraception, means within the pharmacy's |
| 199 | customary timeframe for dispensing the prescription for other |
| 200 | products. |
| 201 | (2) DUTIES OF LICENSED PHARMACIES.- |
| 202 | (a) If a patient requests a contraceptive that is in |
| 203 | stock, the pharmacy shall ensure that the contraceptive is |
| 204 | provided to the patient or patient representative without delay. |
| 205 | (b) A pharmacy shall ensure that its employees do not: |
| 206 | 1. Intimidate, threaten, or harass a patient in the |
| 207 | delivery of services relating to a request for contraception; |
| 208 | 2. Interfere with or obstruct the delivery of services |
| 209 | relating to a request for contraception; |
| 210 | 3. Intentionally misrepresent or deceive a patient about |
| 211 | the availability of contraception or its mechanism of action; |
| 212 | 4. Breach medical confidentiality with respect to a |
| 213 | request for contraception or threaten to breach such |
| 214 | confidentiality; or |
| 215 | 5. Refuse to return a valid, lawful prescription for |
| 216 | contraception upon a patient's or patient representative's |
| 217 | request. |
| 218 | (c) This section does not prohibit a pharmacy from |
| 219 | refusing to provide a contraceptive to a patient if: |
| 220 | 1. It is unlawful to dispense the contraceptive to the |
| 221 | patient without a valid, lawful prescription and such |
| 222 | prescription is not presented; |
| 223 | 2. The patient or patient representative is unable to pay |
| 224 | for the contraceptive; or |
| 225 | 3. The employee of the pharmacy refuses to provide the |
| 226 | contraceptive on the basis of a professional clinical judgment. |
| 227 | (d) This section does not prevent a pharmacist or other |
| 228 | person from refusing to furnish any in-stock contraceptive for |
| 229 | religious reasons so long as the pharmacy reasonably |
| 230 | accommodates the patient or patient representative without delay |
| 231 | and in compliance with this section. |
| 232 | (e) This section does not alter any standard established |
| 233 | under the Florida Civil Rights Act of 1992. |
| 234 | (f) Any person who believes that a violation of this |
| 235 | section has occurred may file a complaint with the Department of |
| 236 | Health. |
| 237 | (g) If the Attorney General has reasonable cause to |
| 238 | believe that any person or group of persons is being, has been, |
| 239 | or may be injured by conduct constituting a violation of this |
| 240 | section, the Attorney General may bring a civil action in the |
| 241 | name of the state, as parens patriae on behalf of natural |
| 242 | persons residing in the state. |
| 243 | Section 6. Paragraph (t) is added to subsection (1) of |
| 244 | section 465.016, Florida Statutes, to read: |
| 245 | 465.016 Disciplinary actions.- |
| 246 | (1) The following acts constitute grounds for denial of a |
| 247 | license or disciplinary action, as specified in s. 456.072(2): |
| 248 | (t) Violating the provisions of s. 465.191. |
| 249 | Section 7. Subsection (1) of section 465.023, Florida |
| 250 | Statutes, is amended to read: |
| 251 | 465.023 Pharmacy permittee; disciplinary action.- |
| 252 | (1) The department or the board may revoke or suspend the |
| 253 | permit of any pharmacy permittee, and may fine, place on |
| 254 | probation, or otherwise discipline any pharmacy permittee if the |
| 255 | permittee, or any affiliated person, partner, officer, director, |
| 256 | or agent of the permittee, including a person fingerprinted |
| 257 | under s. 465.022(3), has: |
| 258 | (a) Obtained a permit by misrepresentation or fraud or |
| 259 | through an error of the department or the board; |
| 260 | (b) Attempted to procure, or has procured, a permit for |
| 261 | any other person by making, or causing to be made, any false |
| 262 | representation; |
| 263 | (c) Violated any of the requirements of this chapter or |
| 264 | any of the rules of the Board of Pharmacy; of chapter 499, known |
| 265 | as the "Florida Drug and Cosmetic Act"; of 21 U.S.C. ss. 301- |
| 266 | 392, known as the "Federal Food, Drug, and Cosmetic Act"; of 21 |
| 267 | U.S.C. ss. 821 et seq., known as the Comprehensive Drug Abuse |
| 268 | Prevention and Control Act; or of chapter 893; |
| 269 | (d) Been convicted or found guilty, regardless of |
| 270 | adjudication, of a felony or any other crime involving moral |
| 271 | turpitude in any of the courts of this state, of any other |
| 272 | state, or of the United States; |
| 273 | (e) Been convicted or disciplined by a regulatory agency |
| 274 | of the Federal Government or a regulatory agency of another |
| 275 | state for any offense that would constitute a violation of this |
| 276 | chapter; |
| 277 | (f) Been convicted of, or entered a plea of guilty or nolo |
| 278 | contendere to, regardless of adjudication, a crime in any |
| 279 | jurisdiction which relates to the practice of, or the ability to |
| 280 | practice, the profession of pharmacy; |
| 281 | (g) Been convicted of, or entered a plea of guilty or nolo |
| 282 | contendere to, regardless of adjudication, a crime in any |
| 283 | jurisdiction which relates to health care fraud; or |
| 284 | (h) Dispensed any medicinal drug based upon a |
| 285 | communication that purports to be a prescription as defined by |
| 286 | s. 465.003(14) or s. 893.02 when the pharmacist knows or has |
| 287 | reason to believe that the purported prescription is not based |
| 288 | upon a valid practitioner-patient relationship that includes a |
| 289 | documented patient evaluation, including history and a physical |
| 290 | examination adequate to establish the diagnosis for which any |
| 291 | drug is prescribed and any other requirement established by |
| 292 | board rule under chapter 458, chapter 459, chapter 461, chapter |
| 293 | 463, chapter 464, or chapter 466; or. |
| 294 | (i) Violated the provisions of s. 465.191. |
| 295 | Section 8. If any provision of this act or the application |
| 296 | thereof to any person or circumstance is held invalid, the |
| 297 | invalidity does not affect other provisions or applications of |
| 298 | the act which can be given effect without the invalid provision |
| 299 | or application, and to this end the provisions of this act are |
| 300 | severable. |
| 301 | Section 9. This act shall take effect July 1, 2010. |