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92nd General Assembly

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Public Act 92-0112

HB3199 Enrolled                                LRB9206284LBmg

    AN ACT concerning pharmaceuticals.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.  The Pharmacy Practice Act of 1987 is amended
by changing Section 25 as follows:

    (225 ILCS 85/25) (from Ch. 111, par. 4145)
    Sec. 25.  No person shall compound, or sell or offer  for
sale, or cause to be compounded, sold or offered for sale any
medicine  or preparation under or by a name recognized in the
United States Pharmacopoeia National Formulary, for  internal
or external use, which differs from the standard of strength,
quality  or purity as determined by the test laid down in the
United States Pharmacopoeia  National Formulary  official  at
the time of such compounding, sale or offering for sale.  Nor
shall  any  person compound, sell or offer for sale, or cause
to be compounded,  sold,  or  offered  for  sale,  any  drug,
medicine, poison, chemical or pharmaceutical preparation, the
strength  or  purity  of which shall fall below the professed
standard of strength or purity under which it  is  sold.   If
the   physician   or   other   authorized   prescriber,  when
transmitting  an  oral  or  written  prescription,  does  not
prohibit drug product selection, a different  brand  name  or
nonbrand  name  drug  product of the same generic name may be
dispensed by the pharmacist, provided that the selected  drug
has  a unit price less than the drug product specified in the
prescription and provided that the selection is permitted, is
not subject to review at  a  meeting  of  a  hearing  by  the
Technical  Advisory  Council,  is not subject to a hearing in
accordance  with  this  Section,  or  is   not   specifically
prohibited  by  the  current Drug Product Selection Formulary
issued by the Department of Public Health pursuant to Section
3.14 of  the  Illinois  Food,  Drug  and  Cosmetics  Act,  as
amended.  A  generic  drug  determined  to be therapeutically
equivalent by the United States Food and Drug  Administration
(FDA)  shall  be  available  for  substitution in Illinois in
accordance with this Act and  the  Illinois  Food,  Drug  and
Cosmetic  Act,  provided  that  each  manufacturer  submits a
notification  containing  product  technical   bioequivalence
information  as  a  prerequisite to product substitution when
they have completed  all  required  testing  to  support  FDA
product  approval and, in any event, the information shall be
submitted no later than 60 days prior to product substitution
in the State.  If the Technical Advisory Council finds that a
generic drug product may have issues related to the  practice
of  medicine  or  the  practice  of  pharmacy,  the Technical
Advisory Council shall review the generic drug product hold a
hearing at its next regularly  scheduled  Technical  Advisory
Council  meeting.  Following the Technical Advisory Council's
review and initial recommendation that a generic drug product
not be included in the Illinois  Formulary,  a  determination
that  an  issue exists related to the practice of medicine or
the practice of pharmacy, the hearing shall be  conducted  in
accordance  with the rules of the Department of Public Health
and Article 10 of the Illinois Administrative  Procedure  Act
if  requested  by  the  manufacturer.  The Technical Advisory
Council shall make its recommendation to  the  Department  of
Public  Health  within  20  business  days  after  the public
hearing.   If  the  Department  of  Public  Health,  on   the
recommendation  of the Technical Advisory Council, determines
that, based upon a preponderance of the evidence, the drug is
not bioequivalent, not therapeutically equivalent,  or  could
cause  clinically significant harm to the health or safety of
patients receiving  that  generic  drug,  the  Department  of
Public Health may prohibit the generic drug from substitution
in  the State.  A decision by the Department of Public Health
to prohibit a drug product from substitution shall constitute
a final administrative decision within the meaning of Section
22.2 of the Illinois Food, Drug and Cosmetic Act and  Section
3-101 of the Code of Civil Procedure, and shall be subject to
judicial  review pursuant to the provisions of Article III of
the Administrative Review Law.   A  decision  to  prohibit  a
generic  drug  from  substitution  must  be  accompanied by a
written detailed explanation of the basis for  the  decision.
On  the  prescription forms of prescribers, shall be placed a
signature line and the words "may substitute"  and  "may  not
substitute".   The prescriber, in his or her own handwriting,
shall place a mark beside either the "may substitute" or "may
not substitute" alternatives to guide the pharmacist  in  the
dispensing  of  the prescription. A prescriber placing a mark
beside the "may substitute" alternative or failing in his  or
her own handwriting to place a mark beside either alternative
authorizes  drug  product  selection  in accordance with this
Act.  Preprinted or rubber stamped marks, or other deviations
from the above prescription format shall  not  be  permitted.
The  prescriber  shall  sign  the  form  in  his  or  her own
handwriting to authorize the issuance  of  the  prescription.
When  a  person  presents a prescription to be dispensed, the
pharmacist to whom it is presented may inform the  person  if
the pharmacy has available a different brand name or nonbrand
name of the same generic drug prescribed and the price of the
different  brand  name  or nonbrand name of the drug product.
If the person presenting the prescription is the one to  whom
the  drug  is to be administered, the pharmacist may dispense
the prescription with the brand  prescribed  or  a  different
brand  name or nonbrand name product of the same generic name
that has been permitted by the Department of  Public  Health,
if  the  drug  is  of  lesser  unit  cost  and the patient is
informed and agrees to the selection and the pharmacist shall
enter such information into  the  pharmacy  record.   If  the
person  presenting the prescription is someone other than the
one to whom the drug is to  be  administered  the  pharmacist
shall  not  dispense the prescription with a brand other than
the one specified in the prescription unless  the  pharmacist
has  the  written or oral authorization to select brands from
the person to whom the  drug  is  to  be  administered  or  a
parent, legal guardian or spouse of that person.
    In  every  case in which a selection is made as permitted
by the Illinois Food, Drug and Cosmetic Act,  the  pharmacist
shall   indicate   on  the  pharmacy  record  of  the  filled
prescription  the  name  or  other  identification   of   the
manufacturer of the drug which has been dispensed.
    The  selection  of any drug product by a pharmacist shall
not  constitute  evidence  of  negligence  if  the   selected
nonlegend  drug  product was of the same dosage form and each
of its active ingredients did not vary by more than 1 percent
from the active ingredients of the  prescribed,  brand  name,
nonlegend drug product or if the selected legend drug product
was included in the Illinois Drug Product Selection Formulary
current  at the time the prescription was dispensed.  Failure
of a prescribing  physician  to  specify  that  drug  product
selection  is  prohibited  does  not  constitute  evidence of
negligence unless that practitioner has reasonable  cause  to
believe that the health condition of the patient for whom the
physician  is  prescribing warrants the use of the brand name
drug product and not another.
    The Department is authorized  to  employ  an  analyst  or
chemist  of  recognized  or  approved  standing whose duty it
shall be to examine into any  claimed  adulteration,  illegal
substitution,   improper   selection,  alteration,  or  other
violation hereof, and report the result of his investigation,
and if such report justify such action the  Department  shall
cause the offender to be prosecuted.
(Source: P.A. 91-766, eff. 9-1-00.)
    Section  10.  The Illinois Food, Drug and Cosmetic Act is
amended by changing Section 3.14 as follows:

    (410 ILCS 620/3.14) (from Ch. 56 1/2, par. 503.14)
    Sec. 3.14.  Dispensing  or  causing  to  be  dispensed  a
different drug  in place of the drug or brand of drug ordered
or  prescribed  without  the express permission of the person
ordering or  prescribing.  However,  this  Section  does  not
prohibit  the  interchange  of  different  brands of the same
generically equivalent drug product, when the  drug  products
are  not  required  to  bear the legend "Caution: Federal law
prohibits dispensing without prescription", provided that the
same dosage form is dispensed and there is no greater than 1%
variance in the stated amount of each  active  ingredient  of
the drug products. Nothing in this Section shall prohibit the
selection of different brands of the same generic drug, based
upon a drug formulary listing which is developed, maintained,
and  issued  by  the  Department of Public Health under which
drug product selection is permitted, is not subject to review
at a meeting of the hearing review process by  the  Technical
Advisory  Council,  is not subject to a hearing in accordance
with this Section,  or  is  not  specifically  prohibited.  A
generic  drug  determined to be therapeutically equivalent by
the United States Food and Drug Administration (FDA) shall be
available for substitution in  Illinois  in  accordance  with
this Act and the Pharmacy Practice Act of 1987, provided that
each  manufacturer  submits a notification containing product
technical bioequivalence information  as  a  prerequisite  to
product  substitution  when  they have completed all required
testing to support FDA product approval and,  in  any  event,
the  information  shall  be  submitted  no later than 60 days
prior to product substitution in the State.  If the Technical
Advisory Council finds that a generic drug product  may  have
issues related to the practice of medicine or the practice of
pharmacy,  the  Technical  Advisory  Council shall review the
generic drug product hold a hearing  at  its  next  regularly
scheduled  Technical Advisory Council meeting.  Following the
Technical   Advisory    Council's    review    and    initial
recommendation that a generic drug product not be included in
the  Illinois Formulary, a determination that an issue exists
related to the  practice  of  medicine  or  the  practice  of
pharmacy,  the  hearing shall be conducted in accordance with
the  Department's  Rules  of  Practice   and   Procedure   in
Administrative Hearings (77 Ill. Admin. Code 100) and Article
10  of the Illinois Administrative Procedure Act if requested
by the manufacturer.  The Technical  Advisory  Council  shall
make  its  recommendation  to the Department of Public Health
within 20 business days after the  public  hearing.   If  the
Department  of  Public  Health,  on the recommendation of the
Technical Advisory Council, determines  that,  based  upon  a
preponderance of the evidence, the drug is not bioequivalent,
not  therapeutically  equivalent,  or  could cause clinically
significant  harm  to  the  health  or  safety  of   patients
receiving  that generic drug, the Department of Public Health
may prohibit the generic drug from substitution in the State.
A decision by the Department to prohibit a drug product  from
substitution shall constitute a final administrative decision
within the meaning of Section 22.2 of the Illinois Food, Drug
and  Cosmetic  Act  and  Section  3-101  of the Code of Civil
Procedure, and shall be subject to judicial  review  pursuant
to the provisions of Article III of the Administrative Review
Law.  A decision to prohibit a generic drug from substitution
must  be accompanied by a written detailed explanation of the
basis for the decision.   Determination of products which may
be selected shall be  recommended  by  a  Technical  Advisory
Council of the Department, selected by the Director of Public
Health,  which council shall consist of 7 persons including 2
physicians, 2 pharmacists, 2 pharmacologists  and  one  other
prescriber  who  have  special knowledge of generic drugs and
formulary.  Technical Advisory Council  members  shall  serve
without  pay,  and  shall  be appointed for a 3 year term and
until their successors  are  appointed  and  qualified.   The
procedures  for  operation  of  the  Drug  Product  Selection
Program  shall  be  promulgated  by the Director, however the
actual list of  products  prohibited  or  approved  for  drug
product  selection  need  not  be  promulgated. The Technical
Advisory Council shall take cognizance  of  federal  studies,
the   U.S.  Pharmacopoeia  -  National  Formulary,  or  other
recognized  authoritative  sources,  and  shall  advise   the
Director   of  any  necessary  modifications.  Drug  products
previously approved by the  Technical  Advisory  Council  for
generic  interchange  may  be  substituted  in  the  State of
Illinois without further review subject to the conditions  of
approval in the State of Illinois prior to the effective date
of this amendatory Act of the 91st General Assembly.
    Timely  notice  of  revisions  to  the formulary shall be
furnished at no charge to all pharmacies by  the  Department.
Single  copies  of the drug formulary shall be made available
at no charge upon request to  licensed  prescribers,  student
pharmacists,  and  pharmacists  practicing  pharmacy  in this
State under a reciprocal license. The Department shall  offer
subscriptions  to  the  drug  formulary  and its revisions to
other  interested  parties  at  a  reasonable  charge  to  be
established by rule. Before the  Department  makes  effective
any  additions  to  or  deletions  from  the  procedures  for
operation  of  the  Drug Product Selection Program under this
Section, the Department shall file proposed  rules  to  amend
the  procedures  for  operation  of the program under Section
5-40 of  the  Illinois  Administrative  Procedure  Act.   The
Department  shall  issue  necessary rules and regulations for
the implementation of this Section.
(Source: P.A. 91-766, eff. 9-1-00.)
    Section 99.  Effective date.  This Act takes effect  upon
becoming law.
    Passed in the General Assembly May 01, 2001.
    Approved July 20, 2001.

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