Florida Senate - 2019 CS for SB 1528 By the Committee on Health Policy; and Senators Bean and Gruters 588-03459-19 20191528c1 1 A bill to be entitled 2 An act relating to the Canadian Prescription Drug 3 Importation Program; creating s. 381.02035, F.S.; 4 requiring the Agency for Health Care Administration to 5 establish the Canadian Prescription Drug Importation 6 Program; defining terms; authorizing a Canadian 7 supplier to export drugs into this state under the 8 program under certain circumstances; providing 9 eligibility criteria and requirements for drug 10 importers; requiring the agency to contract with a 11 vendor to facilitate wholesale prescription drug 12 importation under the program; providing 13 responsibilities for the vendor; providing eligibility 14 criteria for prescription drugs, Canadian suppliers, 15 and importers under the program; requiring 16 participating Canadian suppliers and importers to 17 comply with specified federal requirements for 18 distributing prescription drugs imported under the 19 program; prohibiting Canadian suppliers and importers 20 from distributing, dispensing, or selling prescription 21 drugs imported under the program outside the state; 22 providing certain documentation requirements; 23 requiring the agency to suspend the importation of 24 drugs in violation of this section or any federal or 25 state law or regulation; authorizing the agency to 26 revoke the suspension under certain circumstances; 27 requiring the agency to request federal approval of 28 the program; requiring the request to include certain 29 information; requiring the agency to begin operating 30 the program within a specified timeframe after 31 receiving federal approval; requiring the agency, in 32 consultation with the vendor, to submit an annual 33 report to the Governor and the Legislature by a 34 specified date; providing requirements for such 35 report; authorizing the agency to adopt rules; 36 providing an effective date. 37 38 Be It Enacted by the Legislature of the State of Florida: 39 40 Section 1. Section 381.02035, Florida Statutes, is created 41 to read: 42 381.02035 Canadian Prescription Drug Importation Program.— 43 (1) PROGRAM ESTABLISHED.—The Agency for Health Care 44 Administration shall establish a program for the importation of 45 safe and effective prescription drugs from Canada which have the 46 highest potential for cost savings to the state. 47 (2) DEFINITIONS.—As used in this section, the term: 48 (a) “Agency” means the Agency for Health Care 49 Administration. 50 (b) “Canadian supplier” means a manufacturer, wholesale 51 distributor, or pharmacy appropriately licensed or permitted 52 under Canadian law to manufacture, distribute, or dispense 53 prescription drugs. 54 (c) “Drug” or “prescription drug” has the same meaning as 55 “prescription drug” in s. 499.003. 56 (d) “Federal Act” means the Federal Food, Drug, and 57 Cosmetic Act, 21 U.S.C. ss. 301 et seq.; 52 Stat. 1040 et seq. 58 as amended by the Drug Quality and Security Act, 21 U.S.C. 351 59 et seq. 60 (e) “Importer” means a wholesale distributor, pharmacy, or 61 pharmacist importing prescription drugs into this state under 62 the program. 63 (f) “Pharmacist” means a person who holds an active and 64 unencumbered license to practice pharmacy pursuant to chapter 65 465. 66 (g) “Program” means the Canadian Prescription Drug 67 Importation Program. 68 (h) “Track-and-trace” means the product-tracing process for 69 the components of the pharmaceutical distribution supply chain 70 as described in Title II of the Drug Quality and Security Act, 71 Drug Supply Chain Security Act, 21 U.S.C. 351 et seq. 72 (i) “Vendor” means the entity contracted by the agency to 73 manage specified functions of the program. 74 (3) ELIGIBLE CANADIAN SUPPLIERS.—A Canadian supplier may 75 export drugs into this state under the program if the supplier 76 meets all of the following requirements: 77 (a) Complies fully with relevant Canadian federal and 78 provincial laws and regulations. 79 (b) Complies fully with the Federal Act, including all 80 other state and federal law and regulations relating to the 81 track-and-trace requirements at the package level. 82 (c) Submits evidence at time of contract award and 83 throughout the contract term of a surety bond or comparable 84 security arrangement from this state or any other state in the 85 United States in the minimum amount of $1 million. The agency 86 shall reevaluate and adjust the amount of the bond annually, 87 based on program volume. The surety bond or comparable security 88 arrangement must include the State of Florida as a beneficiary. 89 In lieu of the surety bond, the supplier may provide a 90 comparable security arrangement such as an irrevocable letter of 91 credit or a deposit into a trust account or financial 92 institution which includes the State of Florida as a 93 beneficiary. The purposes of the bond or other security 94 arrangements for the program are to: 95 1. Ensure payment of any administrative penalties imposed 96 by the agency or any other state agency under the contract when 97 the supplier fails to pay within 30 days after assessment; 98 2. Ensure performance of contractual and statutory 99 obligations by the supplier through use of a bond or other 100 comparable security arrangements to receive payment of any other 101 costs or fees incurred by the agency, the state, or other 102 entities acting on behalf of the state if the supplier is non 103 compliant with its contractual and statutory obligations. If the 104 supplier is assessed a penalty under the program and fails to 105 pay within 30 days after that assessment, the agency, the state, 106 or an entity acting on behalf of the state may file a claim for 107 reimbursement against the bond or other comparable security 108 arrangement; and 109 3. Allow for claims to be made against the bond or other 110 comparable security arrangements for up to 1 year after the 111 supplier’s contract under the program has ended with the agency 112 or the state, the supplier’s license is no longer valid, or the 113 program has ended, whichever occurs last. 114 115 A surety bond or other comparable security arrangement is 116 required regardless of the time of bid or negotiation process 117 used by the agency or the type of final contract or agreement 118 executed for services. 119 (d) Is identified by the vendor as eligible to participate 120 in the program. 121 (e) Submits evidence at the time of contract award and 122 throughout the contract term of a surety bond or comparable 123 security arrangement from this state or any other state in the 124 United States in the minimum amount of $1 million. The agency 125 shall reevaluate and adjust the amount of the bond annually, 126 based on program volume. The surety bond or comparable security 127 arrangement must include the State of Florida as a beneficiary. 128 In lieu of the surety bond, the supplier may provide a 129 comparable security arrangement such as an irrevocable letter of 130 credit or a deposit into a trust account or financial 131 institution which includes the State of Florida as a 132 beneficiary. The purposes of the bond or other security 133 arrangements for the program are to: 134 1. Indemnify the supplier in the event that any civil or 135 criminal legal action is brought by the state, the agency, any 136 other state agency, or private individuals or entities against 137 the supplier because of the supplier’s failure to perform under 138 the contract, including, but not limited to, causes of actions 139 for personal injury, negligence, and wrongful death; 140 2. Ensure payment by the supplier of legal judgements and 141 claims that have been awarded to the state, the agency, other 142 entities acting on behalf of the state, individuals, or 143 organizations if the supplier is assessed a final judgement or 144 other monetary penalty in a court of law for a civil or criminal 145 action related to participation in the program. The bond or 146 comparable security arrangement may be accessed if the supplier 147 fails to pay any judgement or claim within 60 days after final 148 judgement; and 149 3. Allow for civil and criminal litigation claims to be 150 made against the bond or other comparable security arrangements 151 for up to 1 year after the supplier’s contract under the program 152 has ended with the agency or the state, the supplier’s license 153 is no longer valid, or the program has ended, whichever occurs 154 last. 155 (4) ELIGIBLE IMPORTERS.— 156 (a) The following entities or persons may import 157 prescription drugs from a Canadian supplier under the program: 158 1. A wholesale distributor. 159 2. A pharmacy. 160 3. A pharmacist. 161 (b) An eligible importer must meet all of the following 162 requirements at time of contract award and throughout the 163 contract term: 164 1. Register with the vendor before importing drugs into the 165 state under the program and be deemed in compliance with all 166 requirements, including any relevant provisions of the Federal 167 Act. 168 2. Submit evidence at time of contract award and throughout 169 the contract term of a surety bond or other comparable security 170 arrangement from this state or any other state in the United 171 States in the amount of $1 million. The surety bond or 172 comparable security arrangement must include the State of 173 Florida as a beneficiary. In lieu of the surety bond, the 174 supplier may provide a comparable security agreement such as an 175 irrevocable letter of credit or a deposit into a trust account 176 or financial institution which includes the State of Florida as 177 a beneficiary, payable to the State of Florida. The purposes of 178 the bond or other security arrangements for the program are to: 179 a. Ensure payment of any administrative penalties imposed 180 by the agency or any other state agency under the contract when 181 the importer fails to pay within 30 days after assessment; 182 b. Ensure performance of contractual and statutory 183 obligations by the importer through use of a bond or other 184 comparable security arrangements to receive payment of any other 185 costs or fees incurred by the agency, the state, or other 186 entities acting on behalf of the state if the importer is non 187 compliant with its contractual and statutory obligations. If the 188 importer is assessed a penalty under the program and fails to 189 pay within 30 days after that assessment, the agency, the state, 190 or an entity acting on behalf of the state may file a claim for 191 reimbursement against the bond or other comparable security 192 arrangement; and 193 c. Allow for claims to be made against the bond or other 194 comparable security arrangements for up to 1 year after the 195 importer’s contract under the program has ended with the agency 196 or the state, the importer’s license is no longer valid, or the 197 program has ended, whichever occurs last. 198 199 A surety bond or comparable document is required regardless of 200 the time of bid or negotiation process used by the agency or the 201 type of final contract or agreement executed for services. 202 (c) Submits evidence at the time of contract award and 203 throughout the contract term of a surety bond or comparable 204 security arrangement from this state or any other state in the 205 United States in the minimum amount of $1 million. The agency 206 shall reevaluate and adjust the amount of the bond annually, 207 based on program volume. The surety bond or comparable security 208 arrangement must include the State of Florida as a beneficiary. 209 In lieu of the surety bond, the supplier may provide a 210 comparable security agreement such as an irrevocable letter of 211 credit or a deposit into a trust account or financial 212 institution which includes the State of Florida as a 213 beneficiary, payable to the State of Florida. The purposes of 214 the bond or other security arrangements for the program are to: 215 1. Ensure participation of the supplier in any civil or 216 criminal legal action by the state, the agency, any other state 217 agency, or private individuals or entities against the supplier 218 because of the supplier’s failure to perform under the contract, 219 including, but not limited to causes of actions for personal 220 injury, negligence, and wrongful death; 221 2. Ensure payment by the supplier through the use of a bond 222 or other comparable security arrangements of legal judgements 223 and claims that have been awarded to the agency, the state, 224 other entities acting on behalf of the state, individuals, or 225 organizations if the supplier is assessed a final judgement or 226 other monetary penalty in a court of law for a civil or criminal 227 action under the program. The bond or comparable security 228 arrangement will be accessed if the supplier fails to pay any 229 judgement or claim within 60 days after final judgement; and 230 3. Allow for civil and criminal litigation claims to be 231 made against the bond or other comparable security arrangements 232 for up to 1 year after the supplier’s contract under the program 233 has ended with the agency or the state, the supplier’s license 234 is no longer valid, or the program has ended, whichever occurs 235 last. 236 (5) IMPORTATION PROCESS.— 237 (a) The agency shall contract with a vendor to provide 238 services under the program. The vendor must submit evidence of a 239 surety bond with any bid or initial contract negotiation 240 documents and maintain documentation of evidence of such a bond 241 with the agency throughout the contract term of a surety bond 242 from this state or any other state in the United States in the 243 same amount of $1 million. The surety bond or comparable 244 security arrangement must include the State of Florida as a 245 beneficiary. In lieu of the surety bond, the supplier may 246 provide a comparable security agreement such as an irrevocable 247 letter of credit or a deposit into a trust account or financial 248 institution which includes the State of Florida as a 249 beneficiary, payable to the State of Florida. The purposes of 250 the bond or other security arrangements for the program are to: 251 1. Ensure payment of any administrative penalties imposed 252 by the agency or any other state agency under the contract when 253 the vendor fails to pay within 30 days after assessment; 254 2. Ensure performance of contractual and statutory 255 obligations by the vendor through use of a surety bond or other 256 comparable security arrangements to receive payment of any other 257 costs or fees incurred by the agency, the state, or other 258 entities acting on behalf of the state if the vendor is non 259 compliant with its contractual and statutory obligations. If the 260 vendor is assessed a penalty under the program and fails to pay 261 within 30 days after that assessment, the agency, the state, or 262 an entity acting on behalf of the state may file a claim for 263 reimbursement against the bond or other comparable security 264 arrangement; and 265 3. Allow for claims to be made against the bond or other 266 comparable security arrangements for up to 1 year after the 267 vendor’s contract under the program has ended with the agency or 268 the state, the importer’s license is no longer valid, or the 269 program has ended, whichever occurs last. 270 271 A surety bond or comparable document is required regardless of 272 the time of bid or negotiation process used by the agency or the 273 type of final contract or agreement executed for services. 274 (b) Submits evidence at the time of contract award and 275 throughout the contract term of a surety bond or comparable 276 security arrangement from this state or any other state in the 277 United States in the minimum amount of $1 million. The agency 278 shall reevaluate and adjust the amount of the bond annually, 279 based on program volume. The surety bond or comparable security 280 arrangement must include the State of Florida as a beneficiary. 281 In lieu of the surety bond, the supplier may provide a 282 comparable security arrangement such as an irrevocable letter of 283 credit or a deposit into a trust account or financial 284 institution which names the State of Florida as a beneficiary. 285 The purposes of the bond or other security arrangements for the 286 program are to: 287 1. Ensure participation of the vendor in any civil or 288 criminal legal action by the state, the agency, any other state 289 agency, or private individuals or entities against the vendor 290 because of the vendor’s failure to perform under the contract, 291 including, but not limited to causes of actions for personal 292 injury, negligence, and wrongful death; 293 2. Ensure payment by the vendor through the use of a bond 294 or other comparable security arrangements of legal judgements 295 and claims that have been awarded to the agency, the state, 296 other entities acting on behalf of the state, individuals, or 297 organizations if the vendor is assessed a final judgement or 298 other monetary penalty in a court of law for a civil or criminal 299 action under the program. The bond or comparable security 300 arrangement will be accessed if the vendor fails to pay any 301 judgement or claim within 60 days after final judgement; and 302 3. Allow for civil and criminal litigation claims to be 303 made against the bond or other comparable security arrangements 304 for up to 1 year after the vendor’s contract under the program 305 has ended with the agency or the state, the vendor’s license is 306 no longer valid, or the program has ended, whichever occurs 307 last. 308 (c) The vendor shall provide all of the following services 309 at a minimum: 310 1. Develop a list every 3 month of drugs that have the 311 highest potential for cost savings to the state if imported from 312 Canada. In developing the list, the vendor shall consider, at a 313 minimum, which drugs will provide the greatest cost savings to 314 the state, including drugs for which there are shortages, 315 specialty drugs, and high-volume drugs. The agency may direct 316 the vendor to revise the list, as necessary. 317 2. Identify Canadian suppliers that are in full compliance 318 with relevant Canadian federal and provincial laws and 319 regulations and the Federal Act and who have agreed to export 320 drugs identified on the list. The vendor must verify that such 321 Canadian suppliers meet all of the requirements of the program 322 and will export drugs at prices that will provide cost savings 323 to the state while meeting or exceeding the track-and-trace 324 federal and state laws and regulations. 325 3. Contract with such eligible Canadian suppliers, or 326 facilitate contracts between eligible importers and Canadian 327 suppliers, to import drugs under the program. 328 4. Maintain a listing of all registered importers that 329 participate in the program. 330 5. Ensure compliance with Title II of the federal Drug 331 Quality and Security Act P.L. 113-54 by all suppliers, importers 332 and other distributors and participants in the program. 333 6. Assist the agency with the annual report as required in 334 subsection (12) and provide any information requested by the 335 agency for such report on a timely basis. 336 (d) The profit margin and administrative fees of any 337 participating wholesaler, pharmacy, or pharmacist on imported 338 drug products is limited to a maximum amount as specified 339 annually in the General Appropriations Act. 340 (6) ELIGIBLE PRESCRIPTION DRUGS.—Eligible importers may 341 import a drug from an eligible Canadian supplier if: 342 (a) The drug meets the United States Food and Drug 343 Administration’s standards related to safety, effectiveness, 344 misbranding, and adulteration; 345 (b) Importing the drug would not violate the patent laws of 346 the United States; 347 (c) Importing the drug is expected to generate cost 348 savings; and 349 (d) The drug is not: 350 1. A controlled substance as defined in 21 U.S.C. s. 802; 351 2. A biological product as defined in 42 U.S.C. s. 262; 352 3. An infused drug; 353 4. An intravenously injected drug; 354 5. A drug that is inhaled during surgery; or 355 6. A drug that is a parenteral drug, the importation of 356 which is determined by the United States Secretary of Health and 357 Human Services to pose a threat to the public health. 358 (7) DISTRIBUTION REQUIREMENTS.—Eligible Canadian suppliers 359 and importers participating under the program: 360 (a) Must comply with the tracking and tracing requirements 361 of 21 U.S.C. ss. 360eee et seq. 362 (b) May not distribute, dispense, or sell drugs imported 363 under the program outside of the program or outside of this 364 state. 365 (8) PRESCRIPTION DRUG SUPPLY CHAIN DOCUMENTATION.— 366 (a) The vendor shall ensure the safety and quality of drugs 367 imported under the program. The vendor shall: 368 1. For an initial imported shipment, ensure that each batch 369 of the drug in the shipment is statistically sampled and tested 370 for authenticity and degradation in a manner consistent with the 371 Federal Act. 372 2. For any subsequent imported shipment, ensure that a 373 statistically valid sample of the shipment was tested for 374 authenticity and degradation in a manner consistent with the 375 Federal Act. 376 3. Certify that the drug: 377 a. Is approved for marketing in the United States and is 378 not adulterated or misbranded; and 379 b. Meets all of the labeling requirements under 21 U.S.C. 380 s. 352. 381 4. Maintain qualified laboratory records, including 382 complete data derived from all tests necessary to ensure that 383 the drug is in compliance with the requirements of this section. 384 5. Maintain documentation demonstrating that the testing 385 required by this section was conducted at a qualified laboratory 386 in accordance with the Federal Act and any other applicable 387 federal and state laws and regulations governing laboratory 388 qualifications. 389 (b) All testing required by this section must be conducted 390 in a qualified laboratory that meets the standards under the 391 Federal Act and any other applicable federal and state laws and 392 regulations governing laboratory qualifications for drug 393 testing. 394 (c) The vendor shall maintain information and documentation 395 submitted under this section for a period of at least 7 years. 396 (d) A participating importer must submit the all of 397 following information to the vendor: 398 1. The name and quantity of the active ingredient of the 399 drug. 400 2. A description of the dosage form of the drug. 401 3. The date on which the drug is received. 402 4. The quantity of the drug that is received. 403 5. The point of origin and destination of the drug. 404 6. The price paid by the importer for the drug. 405 (e) A participating Canadian supplier must submit the 406 following information and documentation to the vendor specifying 407 all of the following: 408 1. The original source of the drug, including: 409 a. The name of the manufacturer of the drug. 410 b. The date on which the drug was manufactured. 411 c. The location (country, state or province, and city) 412 where the drug was manufactured. 413 2. The date on which the drug is shipped. 414 3. The quantity of the drug which is shipped. 415 4. The quantity of each lot of the drug originally received 416 and from which source. 417 5. The lot or control number and the batch number assigned 418 to the drug by the manufacturer. 419 (f) The agency may require that the vendor collect any 420 other information necessary to ensure the protection of the 421 public health. 422 (9) IMMEDIATE SUSPENSION.—The agency shall immediately 423 suspend the importation of a specific drug or the importation of 424 drugs by a specific importer if it discovers that any drug or 425 activity is in violation of this section or any federal or state 426 law or regulation. The agency may revoke the suspension if, 427 after conducting an investigation, it determines that the public 428 is adequately protected from counterfeit or unsafe drugs being 429 imported into the state. 430 (10) FEDERAL APPROVAL.—By July 1, 2020, the agency shall 431 submit a request to the United States Secretary of Health and 432 Human Services for approval of the program under 21 U.S.C. s. 433 384(l). At a minimum, the request must do all of the following: 434 (a) Describe the agency’s plan for operating the program. 435 (b) Demonstrate how the drugs imported into the state under 436 the program will meet the applicable federal and state standards 437 for safety and effectiveness. 438 (c) Demonstrate how the drugs imported into the state under 439 the program will comply with federal tracing procedures. 440 (d) Include a list of proposed drugs that have the highest 441 potential for cost savings to the state through importation at 442 the time that the request is submitted. 443 (e) Estimate the total cost savings attributable to the 444 program. 445 (f) Provide the costs of program implementation to the 446 state. 447 (g) Include a list of potential Canadian suppliers from 448 which the state would import drugs and demonstrate that the 449 suppliers are in full compliance with relevant Canadian federal 450 and provincial laws and regulations as well as all applicable 451 federal and state laws and regulations. 452 (11) NOTIFICATION OF FEDERAL APPROVAL.—Upon receipt of 453 federal approval of the program, the agency shall notify the 454 President of the Senate, the Speaker of the House of 455 Representatives, and the relevant committees of the Senate and 456 the House of Representatives. The program may not be implemented 457 until the Legislature approves the program as authorized by the 458 federal government. As part of its review process for 459 implementation approval, the Legislature shall consider the 460 estimated cost savings to the state and whether the program has 461 met the required safety standards. 462 (12) ANNUAL REPORT.—By December 1 of each year, the agency 463 shall submit a report to the Governor, the President of the 464 Senate, and the Speaker of the House of Representatives on the 465 operation of the program during the previous fiscal year. The 466 report must include, at a minimum: 467 (a) A list of the drugs that were imported under the 468 program; 469 (b) The number of participating entities; 470 (c) The number of prescriptions dispensed through the 471 program; 472 (d) The estimated cost savings during the previous fiscal 473 year and to date in the program; 474 (e) A description of the methodology used to determine 475 which drugs should be included; and 476 (f) Documentation of how the program ensures the following 477 criteria: 478 1. Canadian suppliers participating in the program are of 479 high quality, high performance, and in full compliance with 480 relevant Canadian federal and provincial laws and regulations as 481 well as all United States and Florida laws and regulations; 482 2. Drugs imported under the program are not shipped, sold, 483 or dispensed outside of the state or the program once in the 484 possession of the importer; 485 3. Drugs imported under the program are unadulterated, 486 potent, and safe; 487 4. The program does not put consumers at a higher health 488 and safety risk than if the consumer did not participate; and 489 5. The program provides cost savings to the state. 490 (13) RULEMAKING.—The agency may adopt rules necessary to 491 implement this section. 492 Section 2. This act shall take effect July 1, 2019.