Duties of pharmacies to ensure provision of FDA-approved contraception

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: 249. Duties of pharmacies to ensure provision of FDA-approved contraception (a) In general Subject to subsection (c), a pharmacy that receives Food and Drug Administration-approved drugs or devices in interstate commerce shall maintain compliance with each of the following: (1) If a customer requests a contraceptive or a medication related to a contraceptive, including emergency contraception, that is in stock, the pharmacy shall ensure that the requested contraceptive or medication is provided to the customer without delay. (2) If a customer requests a contraceptive or a medication related to a contraceptive that is not in stock and the pharmacy in the normal course of business stocks contraception, the pharmacy shall immediately inform the customer that the requested contraceptive or medication is not in stock and without delay offer the customer the following options: (A) If the customer prefers to obtain the requested contraceptive or medication through a referral or transfer, the pharmacy shall— (i) locate a pharmacy of the customer’s choice or the closest pharmacy confirmed to have the requested contraceptive or medication in stock; and (ii) refer the customer or transfer the prescription to that pharmacy. (B) If the customer prefers for the pharmacy to order the requested contraceptive or medication, the pharmacy shall obtain the contraceptive or medication under the pharmacy’s standard procedure for expedited ordering of medication and notify the customer when the contraceptive or medication arrives. (3) The pharmacy shall ensure that— (A) the pharmacy does not operate an environment in which customers are intimidated, threatened, or harassed in the delivery of services relating to a request for contraception or a medication related to a contraceptive; (B) the pharmacy’s employees do not interfere with or obstruct the delivery of services relating to a request for contraception or a medication related to a contraceptive; (C) the pharmacy’s employees do not intentionally misrepresent or deceive customers about the availability of a contraceptive or a medication related to a contraceptive, or the mechanism of action of such contraceptive or medication; (D) the pharmacy’s employees do not breach medical confidentiality with respect to a request for a contraceptive or a medication related to a contraceptive or threaten to breach such confidentiality; or (E) the pharmacy’s employees do not refuse to return a valid, lawful prescription for a contraceptive or a medication related to a contraceptive upon customer request. (b) Contraceptives not ordinarily stocked Nothing in subsection (a)(2) shall be construed to require any pharmacy to comply with such subsection if the pharmacy does not ordinarily stock contraceptives or medications related to contraceptives, as the case may be, in the normal course of business. (c) Refusals pursuant to standard pharmacy practice This section does not prohibit a pharmacy from refusing to provide a contraceptive or a medication related to a contraceptive to a customer in accordance with any of the following: (1) If it is unlawful to dispense the requested contraceptive or medication to the customer without a valid, lawful prescription and no such prescription is presented. (2) If the customer is unable to pay for the requested contraceptive or medication. (3) If the employee of the pharmacy refuses to provide the requested contraceptive or medication on the basis of a professional clinical judgment. (d) Relation to other law (1) Rule of construction Nothing in this section shall be construed to invalidate or limit rights, remedies, procedures, or legal standards under title VII of the Civil Rights Act of 1964. (2) Certain claims The Religious Freedom Restoration Act of 1993 shall not provide a basis for a claim concerning, or a defense to a claim under, this section, or provide a basis for challenging the application or enforcement of this section. (e) Preemption This section does not preempt any provision of State law or affect any professional obligation made applicable by a State board or other entity responsible for licensing or discipline of pharmacies or pharmacists, to the extent that such State law or professional obligation provides protections for customers that are greater than the protections provided by this section. (f) 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 $1,000 per day of violation, not to exceed $100,000 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 costs. (3) Limitations A civil action under paragraph (1) or (2) may not be commenced against a pharmacy after the expiration of the 5-year period beginning on the date on which the pharmacy allegedly engaged in the violation involved. (g) Definitions In this section: (1) Contraception The term contraception or contraceptive means any drug or device approved by the Food and Drug Administration to prevent pregnancy. (2) Employee The term employee means a person hired, by contract or any other form of an agreement, by a pharmacy. (3) Medication related to a contraceptive The term medication related to a contraceptive means any drug or device approved by the Food and Drug Administration that a medical professional determines necessary to use before or in conjunction with use of a contraceptive. (4) Pharmacy The term pharmacy means an entity that— (A) is authorized by a State to engage in the business of selling prescription drugs at retail; and (B) employs one or more employees. (5) Product The term product means a Food and Drug Administration-approved drug or device. (6) Professional clinical judgment The term professional clinical judgment means a clinical judgment, formed with the use of professional knowledge and skills, in accordance with prevailing medical standards. (7) Without delay The term without delay, with respect to a pharmacy providing, providing a referral for, or ordering contraception, or transferring the prescription for contraception, means within the usual and customary timeframe at the pharmacy for providing, providing a referral for, or ordering other products, or transferring the prescription for other products, respectively. (h) Effective date This section shall take effect on the 31st day after the date of the enactment of this section, without regard to whether the Secretary has issued any guidance or final rule regarding this section..