130th Ohio General Assembly
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H. B. No. 99  As Introduced
As Introduced

127th General Assembly
Regular Session
2007-2008
H. B. No. 99


Representative Schneider 

Cosponsors: Representatives Chandler, Stewart, J., Dodd, Ujvagi, Wagoner, Combs, Skindell, Collier, Schindel, Peterson, Setzer, Stebelton, Uecker 



A BILL
To amend sections 4729.38 and 4729.99 and to enact section 4729.382 of the Revised Code regarding substitution of drugs intended to treat epilepsy.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4729.38 and 4729.99 be amended and section 4729.382 of the Revised Code be enacted to read as follows:
Sec. 4729.38.  (A) Unless instructed otherwise by the person receiving the drug pursuant to the prescription, a pharmacist filling a prescription for a drug prescribed by its brand name may select a generically equivalent drug, as defined in section 3715.01 of the Revised Code, subject to the following conditions:
(1) The pharmacist shall not select a generically equivalent drug if the prescriber handwrites "dispense as written," or "D.A.W.," on the written prescription, or, when ordering a prescription electronically or orally, the prescriber specifies that the prescribed drug is medically necessary. These designations shall not be preprinted or stamped on the prescription. Division (A)(1) of this section does not preclude a reminder of the procedure required to prohibit the selection of a generically equivalent drug from being preprinted on the prescription.
(2) The pharmacist shall not select a generically equivalent drug unless its price to the patient is less than or equal to the price of the prescribed drug.
(3) The pharmacist, or the pharmacist's agent, assistant, or employee shall inform the patient or the patient's agent if a generically equivalent drug is available at a lower or equal cost, and of the person's right to refuse the drug selected. Division (A)(3) of this section does not apply to any:
(a) Prescription that is billed to any agency, division, or department of this state which will reimburse the pharmacy;
(b) Prescriptions for patients of a hospital, nursing home, or similar patient care facility.
(4) If the drug is prescribed to treat epilepsy, the pharmacist receives the statement required by section 4729.382 of the Revised Code.
(B) Unless the prescriber instructs otherwise, the label for every drug dispensed shall include the drug's brand name, if any, or its generic name and the name of the distributor, using abbreviations if necessary. When dispensing at retail a generically equivalent drug for the brand name drug prescribed, the pharmacist shall indicate on the drug's label or container that a generic substitution was made. The labeling requirements established by this division are in addition to all other labeling requirements of Chapter 3715. of the Revised Code.
(C) A pharmacist who selects a generically equivalent drug pursuant to this section assumes no greater liability for selecting the dispensed drug than would be incurred in filling a prescription for a drug prescribed by its brand name.
(D) The failure of a prescriber to restrict a prescription by specifying "dispense as written," or "D.A.W.," pursuant to division (A)(1) of this section shall not constitute evidence of the prescriber's negligence unless the prescriber had reasonable cause to believe that the health condition of the patient for whom the drug was intended warranted the prescription of a specific brand name drug and no other. No prescriber shall be liable for civil damages or in any criminal prosecution arising from the interchange of a generically equivalent drug for a prescribed brand name drug by a pharmacist, unless the prescribed brand name drug would have reasonably caused the same loss, damage, injury, or death.
Sec. 4729.382.  (A) As used in this section:
(1) "Epilepsy drug" means a drug prescribed for the treatment of epilepsy or a drug prescribed to treat or prevent seizures.
(2) "Epilepsy" means a neurological condition characterized by recurrent seizures.
(3) "Seizure" means a brief disturbance in the electrical activity of the brain.
(4) "Interchange" means the substitution of a generically equivalent drug for the prescribed drug, or substitution of a different drug for the drug prescribed, including any of the following:
(a) The substitution of a generic brand of the drug for the brand prescribed;
(b) The substitution of one generic brand of the drug for another generic brand;
(c) The substitution of one formulation of the drug for another;
(d) The substitution of one therapeutic drug treatment for another.
(B) A pharmacist shall not knowingly interchange a prescribed epilepsy drug without notifying the prescriber and receiving a signed statement consenting to the interchange from the prescriber and either the patient or the patient's parent, legal guardian, or spouse.
Sec. 4729.99.  (A) Whoever violates section 4729.16, division (A) or (B) of section 4729.38, or section 4729.382 or 4729.57 of the Revised Code is guilty of a minor misdemeanor. Each day's violation constitutes a separate offense.
(B) Whoever violates section 4729.27, 4729.28, or 4729.36 of the Revised Code is guilty of a misdemeanor of the third degree. Each day's violation constitutes a separate offense. If the offender previously has been convicted of or pleaded guilty to a violation of this chapter, that person is guilty of a misdemeanor of the second degree.
(C) Whoever violates section 4729.32, 4729.33, or 4729.34 of the Revised Code is guilty of a misdemeanor.
(D) Whoever violates division (A), (B), (D), or (E) of section 4729.51 of the Revised Code is guilty of a misdemeanor of the first degree.
(E)(1) Whoever violates section 4729.37, division (C)(2) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code is guilty of a felony of the fifth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this chapter or a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the fourth degree.
(2) If an offender is convicted of or pleads guilty to a violation of section 4729.37, division (C) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code, if the violation involves the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and if the court imposing sentence upon the offender finds that the offender as a result of the violation is a major drug offender, as defined in section 2929.01 of the Revised Code, and is guilty of a specification of the type described in section 2941.1410 of the Revised Code, the court, in lieu of the prison term authorized or required by division (E)(1) of this section and sections 2929.13 and 2929.14 of the Revised Code and in addition to any other sanction imposed for the offense under sections 2929.11 to 2929.18 of the Revised Code, shall impose upon the offender, in accordance with division (D)(3)(a) of section 2929.14 of the Revised Code, the mandatory prison term specified in that division and may impose an additional prison term under division (D)(3)(b) of that section.
(3) Notwithstanding any contrary provision of section 3719.21 of the Revised Code, the clerk of court shall pay any fine imposed for a violation of section 4729.37, division (C) of section 4729.51, division (J) of section 4729.54, or section 4729.61 of the Revised Code pursuant to division (A) of section 2929.18 of the Revised Code in accordance with and subject to the requirements of division (F) of section 2925.03 of the Revised Code. The agency that receives the fine shall use the fine as specified in division (F) of section 2925.03 of the Revised Code.
(F) Whoever violates section 4729.531 of the Revised Code or any rule adopted thereunder or section 4729.532 of the Revised Code is guilty of a misdemeanor of the first degree.
(G) Whoever violates division (C)(1) of section 4729.51 of the Revised Code is guilty of a felony of the fourth degree. If the offender has previously been convicted of or pleaded guilty to a violation of this chapter, or of a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the third degree.
(H) Whoever violates division (C)(3) of section 4729.51 of the Revised Code is guilty of a misdemeanor of the first degree. If the offender has previously been convicted of or pleaded guilty to a violation of this chapter, or of a violation of Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony of the fifth degree.
Section 2.  That existing sections 4729.38 and 4729.99 of the Revised Code are hereby repealed.
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