Florida Senate - 2015                             CS for SB 1052
       
       
        
       By the Committee on Health Policy; and Senator Brandes
       
       
       
       
       
       588-02380A-15                                         20151052c1
    1                        A bill to be entitled                      
    2         An act relating to the Florida Right to Try Act;
    3         providing a short title; creating s. 385.213, F.S.;
    4         defining terms; authorizing a manufacturer of an
    5         investigational drug, biological product, or device to
    6         make such drug, product, or device available to
    7         certain eligible patients with a terminal illness
    8         without charge or for a specified cost; authorizing
    9         the manufacturer to require eligible patients to
   10         participate in certain data collection; specifying
   11         that an insurer, a health plan, or a government health
   12         care program is not required to provide coverage for
   13         the cost of such drug, product, or device; authorizing
   14         such entities to provide coverage under specified
   15         circumstances; specifying that such entities are not
   16         required to cover care or treatment needed as the
   17         result of the use of such drug, product, or device
   18         except under certain circumstances; specifying that
   19         the Department of Corrections and the Department of
   20         Juvenile Justice are not required to provide coverage
   21         for such drugs, products, or devices for individuals
   22         in the departments’ custody; prohibiting a state
   23         regulatory board or agency from taking action against
   24         the licenses of certain health care providers or
   25         against the licenses or Medicare certifications of
   26         certain health care institutions for specified actions
   27         with respect to an eligible patient’s access to,
   28         treatment with, or use of investigational drugs,
   29         biological products, or devices; specifying when an
   30         investigational drug, biological product, or device
   31         may continue to be offered by the manufacturer if the
   32         drug, product, or device is found to be ineffective
   33         under certain circumstances; requiring certain
   34         information relating to clinical trials to be provided
   35         to a patient taking an investigational drug,
   36         biological product, or device outside of the clinical
   37         trial; providing that the section does not create a
   38         private cause of action against certain manufacturers,
   39         entities, and individuals for any harm to an eligible
   40         patient which results from the use of an
   41         investigational drug, biological product, or device
   42         under certain circumstances; providing a criminal
   43         penalty for an official, employee, or agent of the
   44         state who blocks or attempts to block the access of an
   45         eligible patient to certain investigational drugs,
   46         biological products, or devices; creating s. 408.064,
   47         F.S.; requiring the Agency for Health Care
   48         Administration to establish and maintain a database
   49         that allows a state resident to electronically submit
   50         a plan that indicates his or her directives for
   51         compassionate and palliative care; requiring the
   52         database to serve as a clearinghouse of plan
   53         information that is accessible by certain health care
   54         providers; authorizing the agency to subscribe to or
   55         participate in a national or private clearinghouse in
   56         lieu of establishing and maintaining an independent
   57         clearinghouse; requiring the agency to publish and
   58         disseminate certain information and provide certain
   59         training relating to the clearinghouse; amending ss.
   60         395.1041, 400.142, and 400.487, F.S.; authorizing
   61         hospital personnel, nursing home facility staff, and
   62         home health agency personnel, respectively, to
   63         withhold or withdraw cardiopulmonary resuscitation if
   64         an individual has a Physician Order for Life
   65         Sustaining Treatment (POLST); amending s. 400.605,
   66         F.S.; requiring the Department of Elder Affairs in
   67         consultation with the Agency for Health Care
   68         Administration to adopt by rule procedures for the
   69         implementation of POLSTs in hospice care; amending s.
   70         400.6095, F.S.; authorizing a hospice care team to
   71         withhold or withdraw cardiopulmonary resuscitation if
   72         an individual has a POLST; amending s. 401.35, F.S.;
   73         requiring the Department of Health to establish
   74         circumstances and procedures for honoring a POLST;
   75         amending s. 401.45, F.S.; authorizing emergency
   76         medical transportation providers to withhold or
   77         withdraw cardiopulmonary resuscitation or other
   78         medical interventions if an individual has a POLST;
   79         providing requirements for a POLST to be valid;
   80         amending s. 429.255, F.S.; authorizing assisted living
   81         facility staff to withhold or withdraw cardiopulmonary
   82         resuscitation if an individual has a POLST; amending
   83         s. 429.73, F.S.; requiring the Department of Elder
   84         Affairs to adopt rules for the implementation of
   85         POLSTs in adult family-care homes; authorizing a
   86         provider of such home to withhold or withdraw
   87         cardiopulmonary resuscitation if an individual has a
   88         POLST; providing immunity from civil and criminal
   89         liability to a provider for such actions; amending s.
   90         765.205, F.S.; authorizing a health care surrogate to
   91         provide written consent for a POLST; providing an
   92         effective date.
   93          
   94  Be It Enacted by the Legislature of the State of Florida:
   95  
   96         Section 1. This act may be cited as the “Florida Right to
   97  Try Act.”
   98         Section 2. Section 385.213, Florida Statutes, is created to
   99  read:
  100         385.213 Compassionate treatment; access to experimental
  101  treatments.—
  102         (1) DEFINITIONS.—As used in this section, the term:
  103         (a) “Eligible patient” means an individual who:
  104         1. Has a terminal illness, as determined by the
  105  individual’s physician and consulting physician;
  106         2. As determined by the individual’s physician, does not
  107  have any comparable or satisfactory United States Food and Drug
  108  Administration-approved option available to be diagnosed,
  109  monitored, or treated for the individual’s disease or condition,
  110  and the probable risk to the individual from the investigational
  111  drug, biological product, or device is not greater than the risk
  112  from the disease or condition;
  113         3. Has received a prescription or recommendation from the
  114  individual’s physician for an investigational drug, biological
  115  product, or device;
  116         4. Has provided written, informed consent in accordance
  117  with s. 766.103 for the use of an investigational drug,
  118  biological product, or device or, if the individual is a minor
  119  or lacks the mental capacity to provide informed consent, a
  120  parent’s or legal guardian’s written, informed consent on the
  121  individual’s behalf; and
  122         5. Has documentation from the individual’s physician
  123  indicating that the individual has met all the requirements of
  124  this section.
  125         (b) “Investigational drug, biological product, or device”
  126  means a drug, biological product, or device that has
  127  successfully completed phase one of a clinical trial but has not
  128  yet been approved for general use by the United States Food and
  129  Drug Administration.
  130         (c) “Physician” means the physician licensed under chapter
  131  458 or chapter 459 who provides medical care or treatment to the
  132  eligible patient for the terminal illness.
  133         (d) “Terminal illness” means a disease or condition that,
  134  without life-sustaining procedures, will result in the patient’s
  135  death in the near future or a state of permanent unconsciousness
  136  from which recovery is unlikely.
  137         (2) AVAILABILITY OF INVESTIGATIONAL DRUGS, BIOLOGICAL
  138  PRODUCTS, OR DEVICES.—
  139         (a) A manufacturer of an investigational drug, biological
  140  product, or device may make the investigational drug, biological
  141  product, or device, available to an eligible patient. A
  142  manufacturer may:
  143         1. Provide the investigational drug, biological product, or
  144  device to an eligible patient without charge or require the
  145  eligible patient to pay the cost of, or the cost associated
  146  with, the manufacture of the investigational drug, biological
  147  product, or device.
  148         2. Require an eligible patient to participate in data
  149  collection relating to the eligible patient’s use of the
  150  investigational drug, biological product, or device.
  151         (b) This section does not require:
  152         1. An insurer, a health plan, or a government health care
  153  program to provide coverage for:
  154         a. The cost of an investigational drug, biological product,
  155  or device provided to an eligible patient. An insurer, a health
  156  plan, or a government health care program may elect to provide
  157  coverage for an investigational drug, biological product, or
  158  device that is not part of a clinical trial.
  159         b. Care or treatment needed as a result of an eligible
  160  patient’s use of an investigational drug, biological product, or
  161  device unless the use is part of an approved clinical trial.
  162         2.The Department of Corrections or the Department of
  163  Juvenile Justice to provide coverage for an investigational
  164  drug, biological product, or device for individuals in the
  165  custody of the Department of Corrections or the Department of
  166  Juvenile Justice.
  167         (3) ACTION AGAINST PROVIDER LICENSURE PROHIBITED.
  168  Notwithstanding any other law, a state regulatory board or
  169  agency:
  170         (a) May not take any action against a health care
  171  provider’s license issued under chapter 458 or chapter 459 based
  172  solely on the health care provider’s recommendation to an
  173  eligible patient regarding access to or treatment with an
  174  investigational drug, biological product, or device.
  175         (b) May not, with respect to a health care institution
  176  licensed in this state, take any action against the
  177  institution’s:
  178         1. License based solely on the institution’s participation
  179  in the treatment with, or in any other use of, an
  180  investigational drug, biological product, or device.
  181         2. Medicare certification based solely on a health care
  182  provider’s recommendation to an eligible patient regarding
  183  access to an investigational drug, biological product, or
  184  device.
  185         (4) CLINICAL TRIALS.—
  186         (a) If a clinical trial of an investigational drug,
  187  biological product, or device is not effective for a certain
  188  patient or condition and the trial is closed due to lack of
  189  efficacy, the manufacturer or health care provider may continue
  190  to offer the investigational drug, biological product, or device
  191  for a different condition to the patient or to new patients.
  192         (b) If the United States Food and Drug Administration or
  193  the safety committee for a clinical trial provides notice of
  194  information for an investigational drug, biological product, or
  195  device that is being taken by a patient outside of the clinical
  196  trial, the manufacturer of such drug, product, or device or the
  197  patient’s physician shall notify the patient of the information.
  198         (5) NO CAUSE OF ACTION.—This section does not create a
  199  private cause of action against a manufacturer of an
  200  investigational drug, biological product, or device or against
  201  an entity or individual involved in the care of an eligible
  202  patient for any harm to the eligible patient which results from
  203  the use of the investigational drug, biological product, or
  204  device if the manufacturer, entity, or individual is complying
  205  in good faith with this section, unless the manufacturer,
  206  entity, or individual failed to exercise reasonable care.
  207         (6) PENALTY.—An official, employee, or agent of the state
  208  who blocks or attempts to block the access of an eligible
  209  patient to an investigational drug, biological product, or
  210  device that has been recommended to the eligible patient by his
  211  or her physician and that has not been banned or removed from a
  212  clinical trial as unsafe by the United States Food and Drug
  213  Administration commits a misdemeanor of the second degree,
  214  punishable as provided in s. 775.082 or s. 775.083.
  215         Section 3. Section 408.064, Florida Statutes, is created to
  216  read:
  217         408.064 Clearinghouse for compassionate and palliative care
  218  plans.—
  219         (1) The agency shall establish and maintain a reliable and
  220  secure database that allows a resident of this state to
  221  electronically submit a plan that indicates his or her
  222  directives for compassionate and palliative care. The database
  223  shall serve as a clearinghouse of plan information that may be
  224  accessed by a health care provider who is treating the resident.
  225  The agency shall seek advice from residents, compassionate and
  226  palliative care providers, and health care facilities for the
  227  development and implementation of the clearinghouse.
  228         (2) The agency may subscribe to or otherwise participate in
  229  a national or private clearinghouse that will accomplish the
  230  requirements under subsection (1) in lieu of establishing and
  231  maintaining an independent clearinghouse for this state’s
  232  residents.
  233         (3) The agency shall publish and disseminate information to
  234  the residents of this state regarding the availability of the
  235  clearinghouse. The agency must also provide training to health
  236  care providers and health care facilities in this state on how
  237  to access plans through the clearinghouse.
  238         Section 4. Paragraph (l) of subsection (3) of section
  239  395.1041, Florida Statutes, is amended to read:
  240         395.1041 Access to emergency services and care.—
  241         (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF
  242  FACILITY OR HEALTH CARE PERSONNEL.—
  243         (l) Hospital personnel may withhold or withdraw
  244  cardiopulmonary resuscitation if presented with an order not to
  245  resuscitate executed pursuant to s. 401.45 or a Physician Order
  246  for Life-Sustaining Treatment (POLST). Facility staff and
  247  facilities shall not be subject to criminal prosecution or civil
  248  liability, nor be considered to have engaged in negligent or
  249  unprofessional conduct, for withholding or withdrawing
  250  cardiopulmonary resuscitation pursuant to either such an order.
  251  The absence of an order not to resuscitate executed pursuant to
  252  s. 401.45 or a POLST does not preclude a physician from
  253  withholding or withdrawing cardiopulmonary resuscitation as
  254  otherwise permitted by law.
  255         Section 5. Subsection (3) of section 400.142, Florida
  256  Statutes, is amended to read
  257         400.142 Emergency medication kits; orders not to
  258  resuscitate.—
  259         (3) Facility staff may withhold or withdraw cardiopulmonary
  260  resuscitation if presented with an order not to resuscitate
  261  executed pursuant to s. 401.45 or a Physician Order for Life
  262  Sustaining Treatment (POLST). Facility staff and facilities are
  263  not subject to criminal prosecution or civil liability, or
  264  considered to have engaged in negligent or unprofessional
  265  conduct, for withholding or withdrawing cardiopulmonary
  266  resuscitation pursuant to either such order. The absence of an
  267  order not to resuscitate executed pursuant to s. 401.45 or a
  268  POLST does not preclude a physician from withholding or
  269  withdrawing cardiopulmonary resuscitation as otherwise permitted
  270  by law.
  271         Section 6. Section 400.487, Florida Statutes, is amended to
  272  read:
  273         400.487 Home health service agreements; physician’s,
  274  physician assistant’s, and advanced registered nurse
  275  practitioner’s treatment orders; patient assessment;
  276  establishment and review of plan of care; provision of services;
  277  orders not to resuscitate; physician orders for life-sustaining
  278  treatment.—
  279         (1) Services provided by a home health agency must be
  280  covered by an agreement between the home health agency and the
  281  patient or the patient’s legal representative specifying the
  282  home health services to be provided, the rates or charges for
  283  services paid with private funds, and the sources of payment,
  284  which may include Medicare, Medicaid, private insurance,
  285  personal funds, or a combination thereof. A home health agency
  286  providing skilled care must make an assessment of the patient’s
  287  needs within 48 hours after the start of services.
  288         (2) If When required by the provisions of chapter 464,;
  289  part I, part III, or part V of chapter 468,; or chapter 486, the
  290  attending physician, physician assistant, or advanced registered
  291  nurse practitioner, acting within his or her respective scope of
  292  practice, shall establish treatment orders for a patient who is
  293  to receive skilled care. The treatment orders must be signed by
  294  the physician, physician assistant, or advanced registered nurse
  295  practitioner before a claim for payment for the skilled services
  296  is submitted by the home health agency. If the claim is
  297  submitted to a managed care organization, the treatment orders
  298  must be signed within the time allowed under the provider
  299  agreement. The treatment orders shall be reviewed, as frequently
  300  as the patient’s illness requires, by the physician, physician
  301  assistant, or advanced registered nurse practitioner in
  302  consultation with the home health agency.
  303         (3) A home health agency shall arrange for supervisory
  304  visits by a registered nurse to the home of a patient receiving
  305  home health aide services in accordance with the patient’s
  306  direction, approval, and agreement to pay the charge for the
  307  visits.
  308         (4) Each patient has the right to be informed of and to
  309  participate in the planning of his or her care. Each patient
  310  must be provided, upon request, a copy of the plan of care
  311  established and maintained for that patient by the home health
  312  agency.
  313         (5) If When nursing services are ordered, the home health
  314  agency to which a patient has been admitted for care must
  315  provide the initial admission visit, all service evaluation
  316  visits, and the discharge visit by a direct employee. Services
  317  provided by others under contractual arrangements to a home
  318  health agency must be monitored and managed by the admitting
  319  home health agency. The admitting home health agency is fully
  320  responsible for ensuring that all care provided through its
  321  employees or contract staff is delivered in accordance with this
  322  part and applicable rules.
  323         (6) The skilled care services provided by a home health
  324  agency, directly or under contract, must be supervised and
  325  coordinated in accordance with the plan of care.
  326         (7) Home health agency personnel may withhold or withdraw
  327  cardiopulmonary resuscitation if presented with an order not to
  328  resuscitate executed pursuant to s. 401.45 or a Physician Order
  329  for Life-Sustaining Treatment (POLST). The agency shall adopt
  330  rules providing for the implementation of such orders. Home
  331  health personnel and agencies shall not be subject to criminal
  332  prosecution or civil liability, nor be considered to have
  333  engaged in negligent or unprofessional conduct, for withholding
  334  or withdrawing cardiopulmonary resuscitation pursuant to such
  335  orders an order and rules adopted by the agency.
  336         Section 7. Paragraph (e) of subsection (1) of section
  337  400.605, Florida Statutes, is amended to read:
  338         400.605 Administration; forms; fees; rules; inspections;
  339  fines.—
  340         (1) The agency, in consultation with the department, may
  341  adopt rules to administer the requirements of part II of chapter
  342  408. The department, in consultation with the agency, shall by
  343  rule establish minimum standards and procedures for a hospice
  344  pursuant to this part. The rules must include:
  345         (e) Procedures relating to the implementation of advanced
  346  directives; physician orders for life-sustaining treatment; and
  347  do-not-resuscitate orders.
  348         Section 8. Subsection (8) of section 400.6095, Florida
  349  Statutes, is amended to read:
  350         400.6095 Patient admission; assessment; plan of care;
  351  discharge; death.—
  352         (8) The hospice care team may withhold or withdraw
  353  cardiopulmonary resuscitation if presented with an order not to
  354  resuscitate executed pursuant to s. 401.45 or a Physician Order
  355  for Life-Sustaining Treatment (POLST). The department shall
  356  adopt rules providing for the implementation of such orders.
  357  Hospice staff shall not be subject to criminal prosecution or
  358  civil liability, nor be considered to have engaged in negligent
  359  or unprofessional conduct, for withholding or withdrawing
  360  cardiopulmonary resuscitation pursuant to such an order and
  361  applicable rules. The absence of an order to resuscitate
  362  executed pursuant to s. 401.45 or a POLST does not preclude a
  363  physician from withholding or withdrawing cardiopulmonary
  364  resuscitation as otherwise permitted by law.
  365         Section 9. Subsection (4) of section 401.35, Florida
  366  Statutes, is amended to read:
  367         401.35 Rules.—The department shall adopt rules, including
  368  definitions of terms, necessary to carry out the purposes of
  369  this part.
  370         (4) The rules must establish circumstances and procedures
  371  under which emergency medical technicians and paramedics may
  372  honor orders by the patient’s physician not to resuscitate and a
  373  Physician Order for Life-Sustaining Treatment (POLST) and the
  374  documentation and reporting requirements for handling such
  375  requests.
  376         Section 10. Paragraph (a) of subsection (3) of section
  377  401.45, Florida Statutes, are amended to read:
  378         401.45 Denial of emergency treatment; civil liability.—
  379         (3)(a) Resuscitation or other forms of medical intervention
  380  may be withheld or withdrawn from a patient by an emergency
  381  medical technician, or paramedic, or other health care
  382  professional if evidence of a Physician Order for Life
  383  Sustaining Treatment (POLST) or an order not to resuscitate is
  384  presented to that professional. To be valid, a POLST must be on
  385  the form adopted by rule of the department and signed by the
  386  patient’s physician after consultation with the patient,
  387  patient’s guardian, or legally authorized proxy or surrogate by
  388  the patient’s physician is presented to the emergency medical
  389  technician or paramedic. To be valid, an order not to
  390  resuscitate, to be valid, must be on the form adopted by rule of
  391  the department. The form must be signed by the patient’s
  392  physician and by the patient or, if the patient is
  393  incapacitated, the patient’s health care surrogate or proxy as
  394  provided in chapter 765, court-appointed guardian as provided in
  395  chapter 744, or attorney in fact under a durable power of
  396  attorney as provided in chapter 709. The court-appointed
  397  guardian or attorney in fact must have been delegated authority
  398  to make health care decisions on behalf of the patient.
  399         Section 11. Subsection (4) of section 429.255, Florida
  400  Statutes, is amended to read:
  401         429.255 Use of personnel; emergency care.—
  402         (4) Facility staff may withhold or withdraw cardiopulmonary
  403  resuscitation or the use of an automated external defibrillator
  404  if presented with an order not to resuscitate executed pursuant
  405  to s. 401.45 or a Physician Order for Life-Sustaining Treatment
  406  (POLST). The department shall adopt rules providing for the
  407  implementation of such orders. Facility staff and facilities
  408  shall not be subject to criminal prosecution or civil liability,
  409  nor be considered to have engaged in negligent or unprofessional
  410  conduct, for withholding or withdrawing cardiopulmonary
  411  resuscitation or use of an automated external defibrillator
  412  pursuant to such orders an order and rules adopted by the
  413  department. The absence of an order to resuscitate executed
  414  pursuant to s. 401.45 or a POLST does not preclude a physician
  415  from withholding or withdrawing cardiopulmonary resuscitation or
  416  use of an automated external defibrillator as otherwise
  417  permitted by law.
  418         Section 12. Subsection (3) of section 429.73, Florida
  419  Statutes, is amended to read:
  420         429.73 Rules and standards relating to adult family-care
  421  homes.—
  422         (3) The department shall adopt rules providing for the
  423  implementation of orders not to resuscitate and Physician Orders
  424  for Life-Sustaining Treatment (POLST). The provider may withhold
  425  or withdraw cardiopulmonary resuscitation if presented with an
  426  order not to resuscitate executed pursuant to s. 401.45 or a
  427  POLST. The provider shall not be subject to criminal prosecution
  428  or civil liability, nor be considered to have engaged in
  429  negligent or unprofessional conduct, for withholding or
  430  withdrawing cardiopulmonary resuscitation pursuant to such
  431  orders an order and applicable rules.
  432         Section 13. Paragraph (c) of subsection (1) of section
  433  765.205, Florida Statutes, is amended to read:
  434         765.205 Responsibility of the surrogate.—
  435         (1) The surrogate, in accordance with the principal’s
  436  instructions, unless such authority has been expressly limited
  437  by the principal, shall:
  438         (c) Provide written consent using an appropriate form
  439  whenever consent is required, including a physician’s order not
  440  to resuscitate or a Physician Order for Life-Sustaining
  441  Treatment (POLST).
  442         Section 14. This act shall take effect July 1, 2015.