Bill Amendment: FL S0836 | 2014 | Regular Session

NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Medical Gas

Status: 2014-06-13 - Chapter No. 2014-89 [S0836 Detail]

Download: Florida-2014-S0836-Senate_Floor_Amendment_598242.html
       Florida Senate - 2014                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 836
       
       
       
       
       
       
                                Ì598242,Î598242                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/11/2014 12:07 PM       .                                
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    1         Senate Amendment 
    2  
    3         Delete lines 795 - 1447
    4  and insert:
    5         (b) Sales, purchases, trades, transfers, or use of a
    6  medical gas acquired by a medical director or licensed emergency
    7  medical services provider for use by the emergency medical
    8  services provider and its permitted transport and nontransport
    9  vehicles in accordance with the provider’s license under part
   10  III of chapter 401.
   11         (c) The provision of emergency supplies of medical gases to
   12  nursing homes during the hours of the day when necessary medical
   13  gases cannot normally be obtained from the nursing home’s
   14  regular distributors.
   15         (d) The transfer of medical gases between retail pharmacies
   16  to alleviate a temporary shortage.
   17         (5) “Emergency use oxygen” means oxygen USP administered in
   18  emergency situations without a prescription for oxygen
   19  deficiency and resuscitation. The container must be labeled in
   20  accordance with requirements of the United States Food and Drug
   21  Administration.
   22         (6) “Federal act” means the Federal Food, Drug, and
   23  Cosmetic Act.
   24         (7) “Medical gas” means a liquefied or vaporized gas that
   25  is a prescription drug, whether alone or in combination with
   26  other gases, and as defined in the federal act.
   27         (8) “Medical gas-related equipment” means a device used as
   28  a component part or accessory used to contain or control the
   29  flow, delivery, or pressure during the administration of a
   30  medical gas, such as liquid oxygen base and portable units,
   31  pressure regulators and flow meters, and oxygen concentrators.
   32         (9) “Misbranded” means having a label that is false or
   33  misleading; a label without the name and address of the
   34  manufacturer, packer, or distributor and without an accurate
   35  statement of the quantities of active ingredients; or a label
   36  without an accurate monograph for the medical gas, except in the
   37  case of mixtures of designated medical gases where the label
   38  identifies the component percentages of each designated medical
   39  gas used to make the mixture.
   40         (10) “Medical oxygen” means oxygen USP which must be
   41  labeled in compliance with labeling requirements for oxygen
   42  under the federal act.
   43         (11) “Product labeling” means the labels and other written,
   44  printed, or graphic matter upon an article, or the containers or
   45  wrappers that accompany an article, except for letters, numbers,
   46  and symbols stamped into the container as required by the
   47  federal Department of Transportation.
   48         (12) “USP” means the United States Pharmacopeia.
   49         (13) “USP-NF” means the United States Pharmacopeia-National
   50  Formulary.
   51         (14) “Wholesale distribution” means the distribution of
   52  medical gas to a person other than a consumer or patient.
   53  Wholesale distribution of medical gases does not include:
   54         (a) The sale, purchase, or trade of a medical gas; an offer
   55  to sell, purchase, or trade a medical gas; or the dispensing of
   56  a medical gas pursuant to a prescription;
   57         (b) Activities exempt from the definition of wholesale
   58  distribution in s. 499.003;
   59         (c) The sale, purchase, or trade of a medical gas or an
   60  offer to sell, purchase, or trade a medical gas for emergency
   61  medical reasons; or
   62         (d) Other transactions excluded from the definition of
   63  wholesale distribution under the federal act or regulations
   64  implemented under the federal act related to medical gas.
   65         (15) “Wholesale distributor” means any person or entity
   66  engaged in wholesale distribution of medical gas within or into
   67  this state, including, but not limited to, manufacturers; own
   68  label distributors; private-label distributors; warehouses,
   69  including manufacturers’ and distributors’ warehouses; and
   70  wholesale medical gas warehouses.
   71         Section 15. Section 499.83, Florida Statutes, is created to
   72  read:
   73         499.83Permits.—
   74         (1) A person or entity that intends to distribute medical
   75  gas within or into this state, unless exempted under this part,
   76  must obtain the applicable permit before operating as:
   77         (a) A medical gas wholesale distributor;
   78         (b) A medical gas manufacturer; or
   79         (c) A medical oxygen retail establishment.
   80         (2) The following permits are established:
   81         (a) Medical gas wholesale distributor permit.—A medical gas
   82  wholesale distributor permit is required for wholesale
   83  distribution, whether within or into this state. A medical gas
   84  must remain in the original container obtained by the wholesale
   85  distributor and the wholesale distributor may not engage in
   86  further manufacturing operations unless it possesses a medical
   87  gas manufacturer permit. A medical gas wholesale distributor may
   88  not possess or engage in the wholesale distribution of a
   89  prescription drug that is not a medical gas or distribute a
   90  medical gas other than by wholesale distribution unless
   91  otherwise authorized under this chapter.
   92         (b) Medical gas manufacturer permit.—A medical gas
   93  manufacturer permit is required for a person or entity located
   94  in this state which engages in the manufacture of medical gases
   95  by physical air separation, chemical action, purification, or
   96  filling containers by a liquid-to-liquid, liquid-to-gas, or gas
   97  to-gas process and distributes those medical gases within this
   98  state.
   99         1. A permitted medical gas manufacturer may not manufacture
  100  or possess a prescription drug other than a medical gas, unless
  101  otherwise authorized under this chapter.
  102         2. A permitted medical gas manufacturer may not distribute
  103  a medical gas without obtaining the applicable permit, except
  104  that it may engage in wholesale distribution of medical gases
  105  that it manufactured without obtaining a medical gas wholesale
  106  distributor permit if it complies with this part and the rules
  107  adopted under this part that apply to a wholesale distributor.
  108         3. A permitted medical gas manufacturer shall comply with
  109  all of the requirements applicable to a wholesale distributor
  110  under this part and all appropriate state and federal good
  111  manufacturing practices.
  112         (c) Medical oxygen retail establishment permit.—A medical
  113  oxygen retail establishment permit is required for an entity
  114  that is located in the state and that sells or delivers medical
  115  oxygen directly to patients in this state. The sale and delivery
  116  must be based on a prescription or an order from a practitioner
  117  authorized by law to prescribe. A pharmacy licensed under
  118  chapter 465 does not require a permit as a medical oxygen retail
  119  establishment.
  120         1. A medical oxygen retail establishment may not possess,
  121  purchase, sell, or trade a medical gas other than medical
  122  oxygen, unless otherwise authorized under this chapter.
  123         2. A medical oxygen retail establishment may fill and
  124  deliver medical oxygen to an individual patient based on an
  125  order from a practitioner authorized by law to prescribe. The
  126  medical oxygen retail establishment must comply with all
  127  appropriate state and federal good manufacturing practices.
  128  Medical oxygen sold or delivered by a medical oxygen retail
  129  establishment pursuant to an order from a practitioner may not
  130  be returned into the retail establishment’s inventory.
  131         3. A medical oxygen retail establishment shall comply with
  132  all of the requirements applicable to a wholesale distributor
  133  under this part, except for those requirements that pertain
  134  solely to nitrous oxide.
  135         (3) An out-of-state wholesale distributor that engages in
  136  wholesale distribution into this state must be legally
  137  authorized to engage in the wholesale distribution of medical
  138  gases as a wholesale distributor in the state in which it
  139  resides and provide proof of registration as set forth in s.
  140  499.93(3), if required.
  141         (4) A wholesale distributor may not operate from a place of
  142  residence, and a place of residence may not be granted a permit
  143  or operate under this part, except for the on-call delivery of
  144  home care oxygen for wholesale distributors that also maintain a
  145  medical oxygen retail establishment permit.
  146         (5) If wholesale distribution is conducted at more than one
  147  location within this state or more than one location
  148  distributing into this state, each location must be permitted by
  149  the department.
  150         Section 16. Section 499.831, Florida Statutes, is created
  151  to read:
  152         499.831Permit application.—
  153         (1) The department shall adopt rules to establish the form
  154  and content of the application to obtain a permit and to renew a
  155  permit listed under this part.
  156         (2) An applicant must be at least 18 years of age or be
  157  managed, controlled, or overseen, directly or indirectly, by a
  158  natural person who is at least 18 years of age.
  159         (3) An application for a permit must be filed with the
  160  department and must include all of the following information:
  161         (a) The trade or business name of the applicant, including
  162  current and former fictitious names, which may not be identical
  163  to a name used by an unrelated entity permitted in this state to
  164  dispense or distribute medical gas.
  165         (b) The name or names of the owner and operator of the
  166  applicant, if not the same person or entity. The application
  167  must also include:
  168         1. If the applicant is an individual, the applicant’s name,
  169  business address, and date of birth.
  170         2. If the applicant is a sole proprietorship, the business
  171  address of the sole proprietor and the name and federal employer
  172  identification number of the business entity.
  173         3. If the applicant is a partnership, the name, business
  174  address, date of birth of each partner, the name of the
  175  partnership, and the partnership’s federal employer
  176  identification number.
  177         4. If the applicant is a limited liability company, the
  178  name, business address, and title of each company officer, the
  179  name of the limited liability company and federal employer
  180  identification number, and the name of the state in which the
  181  limited liability company was organized.
  182         5. If the applicant is a corporation, the name, business
  183  address, and title of each corporate officer and director, the
  184  corporate names, the state of incorporation, the federal
  185  employer identification number, and, if applicable, the name and
  186  business address of the parent company.
  187         (c) A list of disciplinary actions pertinent to wholesale
  188  distributors, manufacturers, and retailers of prescription drugs
  189  or controlled substances by a state or federal agency against
  190  the applicant seeking to distribute into this state and any such
  191  disciplinary actions against such applicant’s principals,
  192  owners, directors, or officers.
  193         (d) A complete disclosure of all of the applicant’s past
  194  felony convictions.
  195         (e) An address and description of each facility and
  196  warehouse, including all locations used for medical gas storage
  197  or wholesale distribution including a description of each
  198  facility’s security system.
  199         (4) An applicant shall attest in writing that the
  200  information contained in its application is complete and
  201  accurate.
  202         (5) An applicant must submit a reasonable fee, to be
  203  determined by the department, in order to obtain a permit.
  204         (a) The fee for a medical gas wholesale distributor permit
  205  may not be less than $200 or more than $300 annually.
  206         (b) The fee for a medical gas manufacturer permit may not
  207  be less than $400 or more than $500 annually.
  208         (c) The fee for a medical oxygen retail establishment
  209  permit may not be less than $200 or more than $300 annually.
  210         (6) Upon approval of the application by the department and
  211  payment of the required fee, the department shall issue a permit
  212  to the applicant pursuant to the rules adopted under this part.
  213         Section 17. Section 499.832, Florida Statutes, is created
  214  to read:
  215         499.832 Expiration and renewal of a permit.—
  216         (1) A permit issued under this part automatically expires 2
  217  years after the last day of the month in which the permit was
  218  originally issued.
  219         (2) A permit issued under this part may be renewed by
  220  submitting an application for renewal on a form furnished by the
  221  department and paying the appropriate fee. The application for
  222  renewal must contain a statement by the applicant attesting that
  223  the information is true and correct. Upon approval of a renewal
  224  application by the department and payment of the required
  225  renewal fee, the department shall renew a permit issued under
  226  this part pursuant to the rules adopted under this part.
  227         (3) A renewal application may be accepted up to 60 days
  228  after the expiration date of the permit if, along with the
  229  permit renewal fee, the applicant submits an additional renewal
  230  delinquent fee of $100. A permit that expired more than 60 days
  231  before a renewal application was submitted or postmarked may not
  232  be renewed.
  233         (4) Failure to renew a permit in accordance with this
  234  section precludes future renewal. If a permit has expired and
  235  cannot be renewed, the person, entity, or establishment holding
  236  the permit must cease all permit related activities. In order to
  237  engage in such activities, the person, entity, or establishment
  238  must submit an application for a new permit, pay the applicable
  239  application fee, the initial permit fee, and all applicable
  240  penalties, and be issued a new permit by the department before
  241  engaging in an activity that requires a permit under this part.
  242         (5) The department shall adopt rules to administer this
  243  section, including setting a reasonable fee for a renewal
  244  application.
  245         Section 18. Section 499.833, Florida Statutes, is created
  246  to read:
  247         499.833Permitholder changes.—
  248         (1) A permit issued under this part is valid only for the
  249  person or entity to which it is issued and is not subject to
  250  sale, assignment, or other transfer, voluntarily or
  251  involuntarily.
  252         (2) A permit issued under this part is not valid for an
  253  establishment other than the establishment for which it was
  254  originally issued.
  255         (3) The department may approve the following permit
  256  changes:
  257         (a)Change of location.A person or entity permitted under
  258  this part must notify and receive approval from the department
  259  before changing location. The department shall set a change-of
  260  location fee not to exceed $100.
  261         (b)Change in ownership.—If a majority of the ownership or
  262  controlling interest of a permitted establishment is transferred
  263  or assigned or if a lessee agrees to undertake or provide
  264  services such that legal liability for operation of the
  265  establishment will rest with the lessee, an application for a
  266  new permit is required. Such application must be submitted and
  267  approved by the department before the change of ownership takes
  268  place. However, if a permitted wholesale distributor or
  269  manufacturer is changing ownership and the new owner has held
  270  another permit that allows the wholesale distribution of medical
  271  gas under this chapter for the preceding 18 months without
  272  having been found in violation of the provisions of this chapter
  273  relating to medical gases, then the new owner may operate under
  274  the permit of the acquired entity if the new owner submits the
  275  application for a new permit by the first business day after
  276  ownership is transferred or assigned. A new owner operating
  277  under the original permit is responsible for compliance with all
  278  laws and regulations governing medical gas. If the application
  279  is denied, the new owner shall immediately cease operation at
  280  the establishment until a permit is issued to the new owner.
  281         (c)Change of name.—A permitholder may make a change of
  282  business name without submitting a new permit application.
  283  However, the permitholder must notify the department before
  284  making the name change.
  285         (d)Closure.—If an establishment permitted under this part
  286  closes, the owner must notify the department, in writing, before
  287  the effective date of the closure and must:
  288         1. Return the permit to the department; and
  289         2. Indicate the disposition of any medical gas authorized
  290  to be distributed or dispensed under the permit, including the
  291  name, address, and inventory, and provide the name and address
  292  of a person to contact regarding access to the records that are
  293  required to be maintained under this part. Transfer of ownership
  294  of medical gas may be made only to persons authorized to receive
  295  medical gas pursuant to this part.
  296         (e) Change in information.—Any change in the information
  297  required under this part, other than the changes in paragraphs
  298  (a)-(d), shall be submitted to the department within 30 days
  299  after such change occurs.
  300         (4) A permitholder in good standing may change the type of
  301  permit issued by completing a new application for the requested
  302  permit, meeting the applicable permitting requirements for the
  303  new permit type, and paying any difference between the permit
  304  fees. A refund may not be issued if the fee for the new permit
  305  is less than the fee that was paid for the original permit. The
  306  new permit retains the expiration date of the original permit.
  307         Section 19. Section 499.834, Florida Statutes, is created
  308  to read:
  309         499.834Minimum qualifications.—The department shall
  310  consider all of the following factors in determining eligibility
  311  for, and renewal of, a permit for a person or entity under this
  312  part:
  313         (1) A finding by the department that the applicant has
  314  violated or been disciplined by a regulatory agency in any state
  315  for violating a federal, state, or local law relating to
  316  prescription drugs.
  317         (2) Felony convictions of the applicant under a federal,
  318  state, or local law.
  319         (3) The applicant’s past experience in the manufacture,
  320  retail, or distribution of medical gases.
  321         (4) False or fraudulent material provided by the applicant
  322  in an application made in connection with the manufacturing,
  323  retailing, or distribution of prescription drugs.
  324         (5) Any suspension, sanction, or revocation by a federal,
  325  state, or local government against a license or permit currently
  326  or previously held by the applicant or its owners for violations
  327  of a federal, state, or local law regarding prescription drugs.
  328         (6) Compliance with previously granted licenses or permits.
  329         (7) Compliance with the requirements that distributors or
  330  retailers of medical gases maintain records and make records
  331  available to the department licensing authority or federal,
  332  state, or local law enforcement officials.
  333         (8) Other factors or qualifications the department has
  334  established in rule that are relevant to and consistent with the
  335  public health and safety.
  336         Section 20. Section 499.84, Florida Statutes, is created to
  337  read:
  338         499.84Minimum requirements for the storage and handling of
  339  medical gases.—
  340         (1) A facility where a medical gas is received, stored,
  341  warehoused, handled, held, offered, marketed, displayed, or
  342  transported, to avoid any negative effect on the identity,
  343  strength, quality, or purity of the medical gas, must:
  344         (a) Be of suitable construction to ensure that medical
  345  gases are maintained in accordance with the product labeling of
  346  the medical gas or in compliance with the USP-NF;
  347         (b) Be of suitable size and construction to facilitate
  348  cleaning, maintenance, and proper permitted operations;
  349         (c) Have adequate storage areas with appropriate lighting,
  350  ventilation, space, equipment, and security conditions;
  351         (d) Have a quarantined area for storage of medical gases
  352  that are suspected of being misbranded, adulterated, or
  353  otherwise unfit for distribution;
  354         (e) Be maintained in an orderly condition;
  355         (f) Be located in a commercial location and not in a
  356  personal dwelling or residence location, except that a personal
  357  dwelling location used for on-call delivery of oxygen USP for
  358  homecare use if the person providing on-call delivery is
  359  employed by or acting under a written contract with an entity
  360  that holds a medical oxygen retailer permit;
  361         (g) Provide for the secure and confidential storage of
  362  patient information, if applicable, with restricted access and
  363  policies and procedures to protect the integrity and
  364  confidentiality of patient information; and
  365         (h) Provide and maintain appropriate inventory controls to
  366  detect and document any theft of nitrous oxide.
  367         (2) Medical gas shall be stored under appropriate
  368  conditions in accordance with the manufacturer’s recommendations
  369  on product labeling and department rules or, in the absence of
  370  rules, in accordance with applicable industry standards.
  371         (3) Medical gas shall be packaged in accordance with
  372  official compendium standards, such as the USP-NF.
  373         Section 21. Section 499.85, Florida Statutes, is created to
  374  read:
  375         499.85Security.—
  376         (1) A permitholder that has a facility used for the
  377  distribution or retailing of medical gases shall protect such
  378  gases from unauthorized access by implementing all of the
  379  following security measures:
  380         (a) Keeping access from outside the premises well
  381  controlled and to a minimum.
  382         (b) Ensuring the outside perimeter of the premises is well
  383  lit.
  384         (c) Limiting access into areas where medical gases are held
  385  to authorized personnel.
  386         (d) Equipping all facilities with a fence or other system
  387  to detect or deter entry after hours.
  388         (2) A facility used for distributing or retailing medical
  389  gases shall be equipped with a system that provides suitable
  390  protection against theft, including if appropriate, protection
  391  against theft of computers or electronic records and the
  392  protection of the integrity and confidentiality of data and
  393  documents.
  394         (3) A facility used for wholesale distribution of medical
  395  gases shall be equipped with inventory management and control
  396  systems that protect against, detect, and document any instances
  397  of theft of nitrous oxide.
  398         (4) If a wholesale distributor uses electronic distribution
  399  records, the wholesale distributor shall employ, train, and
  400  document the training of personnel in the proper use of such
  401  technology and equipment.
  402         (5) Vehicles used for on-call delivery of oxygen USP and
  403  oxygen-related equipment for home care use by home care
  404  providers may be parked at a place of residence and must be
  405  locked and equipped with an audible alarm when not attended.
  406         (6) The department shall adopt rules that govern the
  407  distribution of medical oxygen for emergency use by persons
  408  authorized to receive emergency use oxygen. Unless the laws of
  409  this state specifically direct otherwise, such rules must be
  410  consistent with federal regulations, including the labeling
  411  requirements of oxygen under the federal act. Such rules may not
  412  be inconsistent with part III of chapter 401 or rules adopted
  413  thereunder.
  414         Section 22. Section 499.86, Florida Statutes, is created to
  415  read:
  416         499.86Examination of materials.—
  417         (1) A wholesale distributor must visually examine a medical
  418  gas container upon receipt from the manufacturer in order to
  419  identify the medical gas stored within and to determine if the
  420  container has been damaged or is otherwise unfit for
  421  distribution. Such examination must occur in a manner that would
  422  reveal damage to the container which could suggest possible
  423  adulteration or misbranding.
  424         (2) A medical gas container that is found to be damaged or
  425  otherwise unfit pursuant to subsection (1) must be quarantined
  426  from the stock of medical gas until a determination is made that
  427  the medical gas in question is not misbranded or adulterated.
  428         (3) An outgoing shipment must be inspected to identify the
  429  medical gases in the shipment to ensure that medical gas
  430  containers that have been damaged in storage or held under
  431  improper conditions are not distributed or dispensed.
  432         (4) A wholesale distributor must review records documenting
  433  the acquisition of medical gas upon receipt for accuracy and
  434  completeness.
  435         Section 23. Section 499.87, Florida Statutes, is created to
  436  read:
  437         499.87Returned, damaged, and outdated medical gas.—
  438         (1) A medical gas that has left the control of the
  439  wholesale distributor may be returned to the wholesale
  440  distributor or manufacturer from which it was acquired, but may
  441  not be resold as a medical gas unless it is reprocessed by a
  442  manufacturer using proper and adequate controls to ensure the
  443  identity, strength, quality, and purity of the reprocessed
  444  medical gas.
  445         (2) A medical gas that has been subjected to improper
  446  conditions, such as a fire, accident, or natural disaster, may
  447  not be salvaged or reprocessed.
  448         (3) A medical gas, including its container, which is
  449  damaged, misbranded, or adulterated must be quarantined from
  450  other medical gases until it is destroyed or returned to the
  451  manufacturer or wholesale distributor from which it was
  452  acquired. External contamination of a medical gas container or
  453  closure system which does not impact the integrity of the
  454  medical gas is not considered damaged or adulterated for
  455  purposes of this subsection. If a medical gas is adulterated or
  456  misbranded or suspected of being adulterated or misbranded,
  457  notice shall be provided to the manufacturer or wholesale
  458  distributor from which the medical gas was acquired and to the
  459  appropriate boards and federal regulatory bodies.
  460         (4) A medical gas container that has been opened or used
  461  but is not adulterated or misbranded is considered empty and
  462  must be quarantined from nonempty medical gas containers and
  463  returned to the manufacturer or wholesale distributor from which
  464  it was acquired for destruction or reprocessing.
  465         (5) A medical gas, its container, or its associated
  466  documentation or labeling that is suspected of being used in
  467  criminal activity must be retained until its disposition is
  468  authorized by the department or an applicable law enforcement
  469  agency.
  470         Section 24. Section 499.88, Florida Statutes, is created to
  471  read:
  472         499.88Due diligence.
  473         (1) A wholesale distributor shall obtain, before the
  474  initial acquisition of medical gas, the following information
  475  from the supplying wholesale distributor or manufacturer:
  476         (a) If a manufacturer is distributing to a wholesale
  477  distributor, evidence that the manufacturer is registered and
  478  the medical gas is listed with the United States Food and Drug
  479  Administration;
  480         (b) If a wholesale distributor is distributing to a
  481  wholesale distributor, evidence that the wholesale distributor
  482  supplying the medical gas is legally authorized to distribute
  483  medical gas within or into the state;
  484         (c) The name of the responsible facility contact person for
  485  the supplying manufacturer or wholesale distributor; and
  486         (d) Certification that the manufacturer’s or wholesale
  487  distributor’s policies and procedures comply with this part.
  488         (2) A wholesale distributor is exempt from obtaining the
  489  information from a manufacturer, as required under subsection
  490  (1), if the manufacturer is registered with the United States
  491  Food and Drug Administration in accordance with s. 510 of the
  492  federal act and the manufacturer provides:
  493         (a) Proof of such registration; and
  494         (b) Proof of inspection by the United States Food and Drug
  495  Administration or other regulatory body within the past 3 years
  496  demonstrating substantial compliance with current good
  497  manufacturing practices applicable to medical gases.
  498         (3) A manufacturer or wholesale distributor that
  499  distributes to or acquires medical gas from another wholesale
  500  distributor shall provide to or obtain from the distributing or
  501  acquiring manufacturer or distributor the information required
  502  by s. 499.89(1), as applicable.
  503         Section 25. Section 499.89, Florida Statutes, is created to
  504  read:
  505         499.89Recordkeeping.—
  506         (1) A permitholder under this part shall establish and
  507  maintain a record of transactions regarding the receipt and the
  508  distribution, or other disposition, of medical gases, as
  509  applicable. Such records constitute an audit trail and must
  510  contain information sufficient to perform a recall of medical
  511  gas in compliance with 21 C.F.R. s. 211.196 and 21 C.F.R. s.
  512  820.160(b). Such records must include all of the following
  513  information, which may be kept in two separate documents one
  514  related to the distribution of medical gas and the other related
  515  to the receipt of medical gas:
  516         (a) The dates of receipt and distribution or other
  517  disposition of the medical gas.
  518         (b) The name, address, license or permit number and its
  519  expiration date for the person or entity purchasing the medical
  520  gas from the wholesale distributor.
  521         (c) The name, address, license or permit number and its
  522  expiration date for the person or entity receiving the medical
  523  gas, if different from the information required under paragraph
  524  (b).
  525         (d) Information sufficient to perform a recall of all
  526  medical gas received, distributed, or dispensed.
  527         (2) Such records shall be made available for inspection and
  528  copying by an authorized official of any federal, state, or
  529  local governmental agency for a period of:
  530         (a) Three years following the distribution date of high
  531  pressure medical gases.
  532         (b) Two years following the distribution date for cryogenic
  533  or refrigerated liquid medical gases.
  534         (3) Records kept at the inspection site or that can be
  535  immediately retrieved by computer or other electronic means
  536  shall be readily available for authorized inspection during the
  537  retention period. Records kept at a central location apart from
  538  the inspection site and not electronically retrievable shall be
  539  made available for inspection within 2 working days of a request
  540  by an authorized official of any state or federal governmental
  541  agency charged with enforcement of these rules.
  542         (4) A pedigree paper is not required for distributing or
  543  dispensing medical gas.
  544         (5) A wholesale distributor shall maintain records
  545  sufficient to aid in the mandatory reporting of any theft,
  546  suspected theft, or other significant loss of nitrous oxide to
  547  the department and other appropriate law enforcement agencies.
  548         Section 26. Section 499.90, Florida Statutes, is created to
  549  read:
  550         499.90Policies and procedures.—A wholesale distributor
  551  shall establish, maintain, and adhere to written policies and
  552  procedures for the receipt, security, storage, transport,
  553  shipping, and distribution of medical gases and shall establish,
  554  maintain, and adhere to procedures for maintaining inventories;
  555  for identifying, recording, and reporting losses or thefts; and
  556  for correcting all errors and inaccuracies in inventories
  557  associated with nitrous oxide. A wholesale distributor shall
  558  include in its written policies and procedures all of the
  559  following:
  560         (1) A procedure for handling recalls and withdrawals of
  561  medical gas. Such procedure must deal with recalls and
  562  withdrawals due to:
  563         (a) Action initiated at the request of the United States
  564  Food and Drug Administration or any federal, state, or local law
  565  enforcement or other government agency, including the
  566  department; or
  567         (b) Voluntary action by a manufacturer of medical gases to
  568  remove defective or potentially defective medical gases from the
  569  market.
  570         (2) A procedure that includes preparation for, protection
  571  against, and responding to a crisis that affects the security or
  572  operation of a facility that stores medical gases in the event
  573  of a strike; a fire, flood, or other natural disaster; or other
  574  local, state, or national emergency.
  575         (3) A procedure for reporting criminal or suspected
  576  criminal activity involving the inventory of nitrous oxide to
  577  the department and to applicable law enforcement agencies within
  578  3 business days after becoming aware of the criminal or
  579  suspected criminal activity.
  580         Section 27. Section 499.91, Florida Statutes, is created to
  581  read:
  582         499.91Prohibited acts.—A person may not perform or cause
  583  the performance of, or aid and abet in, any of the following
  584  acts:
  585         (1) The manufacture, sale, or delivery, or the holding or
  586  offering for sale, of a medical gas that is adulterated,
  587  misbranded, or is otherwise unfit for distribution.
  588         (2) The adulteration or misbranding of a medical gas.
  589         (3) The receipt of a medical gas that is adulterated,
  590  misbranded, stolen, or obtained by fraud or deceit, and the
  591  delivery or proffered delivery of such medical gas for pay or
  592  otherwise.
  593         (4) The alteration, mutilation, destruction, obliteration,
  594  or removal of all or any part of the product labeling of a
  595  medical gas, or the willful commission of any other act with
  596  respect to a medical gas that results in it being misbranded.
  597         (5) The purchase or receipt of a medical gas from a person
  598  not authorized to distribute or dispense medical gas or who is
  599  not exempted from permitting requirements to wholesale
  600  distribute medical gas to such purchaser or recipient.
  601         (6) The knowing and willful sale or transfer of a medical
  602  gas to a recipient who is not legally authorized to receive a
  603  medical gas, except that a violation does not exist if a
  604  permitted wholesale distributor provides oxygen to a permitted
  605  medical oxygen retail establishment that is out of compliance
  606  with the notice of location change requirements of s. 499.834,
  607  provided that the wholesale distributor with knowledge of the
  608  violation notifies the department of the transaction by the next
  609  business day.
  610         (7) The failure to maintain or provide records required
  611  under this part and the rules adopted under this part.
  612         (8) Providing the department or any of its representatives
  613  or any state or federal official with false or fraudulent
  614  records or making false or fraudulent statements regarding this
  615  part or the rules adopted under this part.
  616         (9) The distribution of a medical gas that was:
  617         (a)Purchased by a public or private hospital or other
  618  health care entity, except for the physical distribution of such
  619  medical gas to an authorized recipient at the direction of a
  620  hospital or other health care entity;
  621         (b) Donated or supplied at a reduced price to a charitable
  622  organization; or
  623         (c) Stolen or obtained by fraud or deceit.
  624         (10) The failure to obtain a license or permit or operating
  625  without a valid license or permit, if one is required.
  626         (11) The obtaining of, or attempt to obtain, a medical gas
  627  by fraud, deceit, or misrepresentation or engaging in
  628  misrepresentation or fraud in the distribution of a medical gas.
  629         (12) Except for emergency use oxygen, the distribution of a
  630  medical gas to a patient without a prescription from a
  631  practitioner authorized by law to prescribe a medical gas.
  632         (13) The distribution or dispensing of a medical gas that
  633  was previously dispensed by a pharmacy or a practitioner
  634  authorized by law to prescribe.
  635         (14) The distribution or dispensing of a medical gas or
  636  medical gas-related equipment to a patient, unless the patient
  637  has been provided with the appropriate information and
  638  counseling on the use, storage, and disposal of the medical gas.
  639         (15) Failure to report an act prohibited under this part or
  640  the rules adopted under this part.
  641         (16) Failure to exercise due diligence as provided in s.
  642  499.88.
  643         Section 28. Section 499.92, Florida Statutes, is created to
  644  read:
  645         499.92Criminal acts.—
  646         (1) A person commits a felony of the third degree,
  647  punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
  648  if he or she:
  649         (a) Adulterates or misbrands a medical gas with intent to
  650  defraud or deceive;
  651         (b) Knowingly purchases or receives a medical gas from a
  652  person not legally authorized to distribute or dispense medical
  653  gas;
  654         (c) Knowingly engages in the wholesale distribution of, or
  655  sells, barters, brokers, or transfers, a medical gas to a person
  656  not legally authorized to purchase or receive medical gas in the
  657  jurisdiction in which the person receives the medical gas. A
  658  permitted wholesale distributor that provides oxygen to a
  659  permitted medical oxygen retail establishment that is out of
  660  compliance with only the change of location notice requirement
  661  under s. 499.834, does not commit a violation of this paragraph
  662  if the wholesale distributor notifies the department of the
  663  transaction no later than the next business day; or
  664         (d) Knowingly falsely creates a label for a medical gas or
  665  knowingly misrepresents a factual matter contained in a

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