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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Hearing: Freedom of Conscience for Small Pharmacies

House Small Business Committee
Washington, D.C. 25 July, 2005

Prepared Remarks of Mr. J. Michael Patton, M.S., CAE
Executive Director Illinois Pharmacists Association

Unfortunately, what we are now finding is that some individuals are now testing select pharmacies to discern the willingness of the pharmacy to fill their prescription. A case in point is a woman who would drive over 100 miles to a very small rural pharmacy to get her prescription filled when she had passed multiple metropolitan areas.

Good Morning and thank you to Committee Chair Congressman Manzullo for inviting me to speak today before this committee on the issue of Freedom of Conscience for Small Pharmacies.

Ladies and Gentleman of the House Committee on Small Business!

On April 1st Illinois' Governor Rod Blagojevich invoked an emergency rule requiring all Illinois licensed pharmacies to provide contraceptives based on a valid, lawful prescription without delay. As initially implemented, this emergency rule posed a substantial risk to patient care and created a substantial challenge for pharmacists licensed in our State.

Since that time, the emergency ruling has been modified and proposed language will be reviewed by our Joint Committee on Administrative Rules on August 16th. The language as now being promulgated is as follows:

" Duty of Division I Pharmacy to Dispense Contraceptives

1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacy must dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay, consistent with the normal timeframe for filling any other prescription. If the contraceptive, or a suitable alternative, is not in stock, the pharmacy must obtain the contraceptive under the pharmacy's standard procedures for ordering contraceptive drugs not in stock, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. However, if the patient prefers, the prescription must either be transferred to a local pharmacy of the patient's choice or returned to the patient, as the patient directs.

2) For the purposes of this subsection (j), the term "contraceptive" shall refer to all FDA approved drugs or devices that prevent pregnancy.

3) Nothing in this subsection (j) shall interfere with a pharmacist's screening for potential drug therapy problems due to therapeutic duplication, drug-disease contraindications, drug-drug interactions (including serious interactions with nonprescription or over-the-counter drugs), drug-food interactions, incorrect drug dosage or duration of drug treatment, drug-allergy interactions or clinical abuse or misuse, pursuant to 225 ILCS85/3 (q)."

As the ruling is now being enforced, the Illinois Pharmacists Association has taken a formal position that we can accept and support these modifications. However, we feel it is imperative that the reference to "health care personnel" as cited in the Illinois Health Right of Conscience Act must be amended to specifically include pharmacists by reference rather than just by inference as "health care personnel".

The initial impact of this edict was harrowing for Illinois pharmacists as many of the small, rural communities did not carry emergency contraceptive indication referred to as Plan B. These pharmacies did not stock this item because of any personal or religious beliefs but rather the simple principles of supply and demand. If there is no demand there is no reason to inventory this product. The reality of many of these small pharmacies in these remote communities is that if a woman has unprotected sex and determines with the advice of her physician that pregnancy could be eminent, then she will seek out a pharmacy in a nearby metropolitan area to preserve and protect her privacy and anonymity.

Now these pharmacies are being challenged as to how to respond to the new ruling of the Governor. Most still do not carry this product, but have established a relationship for a personal referral with a nearby "chain store" who now will typically stock this product due to the new mandate and the corporate requirement for compliance. The ruling provides for the ability for the pharmacist, with the patient's permission, to transfer the prescription to a local pharmacy of the patient's choice or return the prescription to the patient.

Unfortunately, what we are now finding is that some individuals are now testing select pharmacies to discern the willingness of the pharmacy to fill their prescription. A case in point is a woman who would drive over 100 miles to a very small rural pharmacy to get her prescription filled when she had passed multiple metropolitan areas. This initiative has been utilized now at several pharmacies that happen to be owned by Illinois legislators. This has caused concern and fear of many rural pharmacies that they may also be targeted in this "plot" to coerce pharmacies into compliance; thereby creating the need for many pharmacies to now "inventory" this product in the event they might be "tested"!

This situation has caused many pharmacists to examine their own profession and dedication. They feel they no longer have the right to determine their own fate in the dilemma of dispensing. Should they or shouldn't they dispense? Pharmacists are now beginning to question their rights under this new mandate. Irrespective of their own personal beliefs, many pharmacists are now facing the reality if it is oral contraceptives today, what might the prescription be that will be mandated tomorrow?

Pharmacists are health care professionals, as defined in Illinois statute, and expect to be treated as the professionals that they are trained to be. The commitment of the pharmacist is to serve and protect the health and safety of their patients. This can quite easily be met by allowing pharmacists to do as they always have; if a medicine is not in stock, they may offer to order it for the patient or in the event of a time sensitive prescription like "Plan B", they may make a referral to a local fellow professional.

This ruling has created limited economic hardship on many small pharmacists, but the threat of a noncompliance complaint for legitimately not having this product in stock has created a much greater burden on all pharmacists. As a result, some pharmacists are questioning the viability of maintaining their practice in the State of Illinois. Some with whom I have spoken, are contemplating relocating into other nearby States that will allow them to practice without fear of intervention. This consideration, will undoubtedly have significant impact on the availability, affordability and access to quality healthcare in many remote rural areas, rendering those patients in greatest need to drive greater distances to have their prescriptions filled. Only time will tell the true cost implications of these decisions. Pharmacists by nature are quite diligent in their efforts to comply, but the outside influences of certain "activists groups" testing selected pharmacists has created a noose of fear that is greater than any inventory item.

These pharmacists fear their license may be in jeopardy if they fail to comply with a mandate such as this irrespective of their personal beliefs. The cost of compliance has become an emotional, as well as an economic burden.

The Illinois Pharmacists Association has also urged the Governor to give further consideration, to recognize the right of conscience for pharmacists, but for those choosing to be trained to do so; we suggest allowing properly trained pharmacists to dispense "Plan B" without a prescription under the formal protocols of a licensed physician. This is now being done in at least 6 other states. This would allow pharmacists to be properly trained to counsel and dispense, and pharmacies to publicly advocate their willingness to dispense emergency contraception without a prescription. This we feel addresses the availability of emergency contraception, and also provides the potential for savings as well.

Thank you ladies and gentlemen for the privilege and opportunity to be with you today, and I will be happy to try and address any questions that you might have.


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