To establish certain duties for pharmacies when pharmacists employed by the pharmacies refuse to fill valid prescriptions for drugs or devices on the basis of personal beliefs, and for other purposes.

April 14, 2005

Mrs. MALONEY (for herself, Mr. BROWN of Ohio, Mr. DEFAZIO, Ms. WASSERMAN SCHULTZ, Mrs. JONES of Ohio, Mr. SHAYS, Mr. GEORGE MILLER of California, Mr. GUTIERREZ, Ms. BALDWIN, Mr. MORAN of Virginia, Mr. CROWLEY, Mr. KENNEDY of Rhode Island, Mrs. CAPPS, Mr. MCGOVERN, Ms. CARSON, Mrs. DAVIS of California, Mr. BRADY of Pennsylvania, and Ms. ZOE LOFGREN of California) introduced the following bill; which was referred to the Committee on Energy and Commerce

To establish certain duties for pharmacies when pharmacists employed by the pharmacies refuse to fill valid prescriptions for drugs or devices on the basis of personal beliefs, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Access to Legal Pharmaceuticals Act'.

SEC. 2. FINDINGS.

The Congress finds as follows:

(1) An individual's right to religious belief and worship is a protected, fundamental right in the United States.

(2) An individual's right to access legal contraception is a protected, fundamental right in the United States.

(3) An individual's right to religious belief and worship cannot impede an individual's access to legal prescriptions, including contraception.

SEC. 3. DUTIES OF PHARMACIES WITH RESPECT TO REFUSAL OF PHARMACISTS TO FILL VALID PRESCRIPTIONS.

(a) In General- Part B of title II of the Public Health Service Act (42 U.S.C. 238 et seq.) is amended by adding at the end the following section:

`SEC. 249. DUTIES OF PHARMACIES WITH RESPECT TO REFUSAL OF PHARMACISTS TO FILL VALID PRESCRIPTIONS.

`(a) In General- A pharmacy that receives prescription drugs or prescription devices in interstate commerce shall maintain compliance with the following conditions:

`(1) If a product is in stock and a pharmacist employed by the pharmacy refuses on the basis of a personal belief to fill a valid prescription for the product, the pharmacy ensures, subject to the consent of the individual presenting the prescription in any case in which the individual has reason to know of the refusal, that the prescription is, without delay, filled by another pharmacist employed by the pharmacy.

`(2) Subject to subsection (b), if a product is not in stock and a pharmacist employed by the pharmacy refuses on the basis of a personal belief or on the basis of pharmacy policy to order or to offer to order the product when presented a valid prescription for the product--

`(A) the pharmacy ensures that the individual presenting the prescription is immediately informed that the product is not in stock but can be ordered by the pharmacy; and

`(B) the pharmacy ensures, subject to the consent of the individual, that the product is, without delay, ordered by another pharmacist employed by the pharmacy.

`(3) The pharmacy does not employ any pharmacist who engages in any conduct with the intent to prevent or deter an individual from filling a valid prescription for a product or from ordering the product (other than the specific conduct described in paragraph (1) or (2)), including--

`(A) the refusal to return a prescription form to the individual after refusing to fill the prescription or order the product, if the individual requests the return of such form;

`(B) the refusal to transfer prescription information to another pharmacy for refill dispensing when such a transfer is lawful, if the individual requests such transfer;

`(C) subjecting the individual to humiliation or otherwise harassing the individual; or

`(D) breaching medical confidentiality with respect to the prescription or threatening to breach such confidentiality.

`(b) Products not Ordinarily Stocked- Subsection (a)(2) applies only with respect to a pharmacy ordering a particular product for an individual presenting a valid prescription for the product, and does not require the pharmacy to keep such product in stock, except that such subsection has no applicability with respect to a product for a health condition if the pharmacy does not keep in stock any product for such condition.

`(c) Enforcement-

`(1) CIVIL PENALTY- A pharmacy that violates a requirement of subsection (a) is liable to the United States for a civil penalty in an amount not exceeding $5,000 per day of violation, not to exceed $500,000 for all violations adjudicated in a single proceeding.

`(2) PRIVATE CAUSE OF ACTION- Any person aggrieved as a result of a violation of a requirement of subsection (a) may, in any court of competent jurisdiction, commence a civil action against the pharmacy involved to obtain appropriate relief, including actual and punitive damages, injunctive relief, and a reasonable attorney's fee and cost.

`(3) LIMITATIONS- A civil action under paragraph (1) or (2) may not be commenced against a pharmacy after the expiration of the five-year period beginning on the date on which the pharmacy allegedly engaged in the violation involved.

`(d) Definitions- For purposes of this section:

`(1) The term `employ', with respect to the services of a pharmacist, includes entering into a contract for the provision of such services.

`(2) The term `pharmacist' means a person authorized by a State to practice pharmacy, including the dispensing and selling of prescription drugs.

`(3) The term `pharmacy' means a person who--

`(A) is authorized by a State to engage in the business of selling prescription drugs at retail; and

`(B) employs one or more pharmacists.

`(4) The term `prescription device' means a device whose sale at retail is restricted under section 520(e)(1) of the Federal Food, Drug, and Cosmetic Act.

`(5) The term `prescription drug' means a drug that is subject to section 503(b)(1) of the Federal Food, Drug, and Cosmetic Act.

`(6) The term `product' means a prescription drug or a prescription device.

`(7) The term `valid', with respect to a prescription, means--

`(A) in the case of a drug, a prescription within the meaning of section 503(b)(1) of the Federal Food, Drug, and Cosmetic Act that is in compliance with applicable law, including, in the case of a prescription for a drug that is a controlled substance, compliance with part 1306 of title 21, Code of Federal Regulations, or successor regulations; and

`(B) in the case of a device, an authorization of a practitioner within the meaning of section 520(e)(1) of such Act that is in compliance with applicable law.

`(8) The term `without delay', with respect to a pharmacy filling a prescription for a product or ordering the product, means within the usual and customary timeframe at the pharmacy for filling prescriptions for products for the health condition involved or for ordering such products, respectively.'.

(b) Effective Date- The amendment made by subsection (a) takes effect upon the expiration of 30 days after the date of the enactment of this Act, without regard to whether the Secretary of Health and Human Services has issued any guidance or final rule regarding such amendment.

END