[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 809 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 809

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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 14, 2005

 Mr. Lautenberg (for himself, Mr. Corzine, and Mrs. Boxer) introduced 
the following bill; which was read twice and referred to the Committee 
               on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
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, and 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.
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