State of Illinois
91st General Assembly
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Public Act 91-0766

HB2965 Enrolled                                LRB9109621ACtm

    AN ACT regarding 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 such  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  a  hearing  by  the  Technical
Advisory  Council,  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", approved June 29,
1967,  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 hold a hearing
at its next regularly scheduled  Technical  Advisory  Council
meeting.    Following   the   Technical   Advisory  Council's
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.  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
such  different  brand name or nonbrand name of the such 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 such 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. 85-796.)

    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  such  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 such drug products. Nothing in this
Section shall prohibit the selection of different  brands  of
the  same  generic drug, based upon a positive drug formulary
listing which is developed, maintained,  and  issued  by  the
Department   of   Public  Health  under  which  drug  product
selection within a generic class, or  selection  of  specific
products  for  those prescribed, is permitted, is not subject
to the hearing  review  process  by  the  Technical  Advisory
Council,  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 hold a hearing
at  its  next  regularly scheduled Technical Advisory Council
meeting.   Following   the   Technical   Advisory   Council's
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.  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. 87-860; 87-1237; 88-45.)

    Section 99. Effective date.  This Act takes  effect  upon
becoming   law   solely  for  the  purpose  of  allowing  the
Department of Public Health to begin rulemaking to effect the
changes made by this Act.  In all other  respects,  this  Act
takes effect on September 1, 2000.

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