Executive Insight

MICHAEL JACKSON, BPHARM, RETIRED EVP & CEO, FLORIDA PHARMACY ASSOCIATION TJ MORTON, FPA GENERAL COUNSEL

Parental Bill of Rights What Does This Have to Do with Pharmacists?

Just recently, I had the honor of presenting a legislative update program to the members of the Alachua County Association of Pharmacists in Gainesville. This was their first in-person meeting post-pandemic and I sense that all who were present relished the ability to come together again. It is a scenario that I am seeing much of these days; but this is not the subject of my commentary in Florida Pharmacy Today this month.

If you have been scanning through our policy updates (see FPA Latest News – October 11, 2021) or attending our regulatory and law conferences, you may be aware of legislation that was approved by the Governor in 2021 entitled Parents’ Bill of Rights. HB241 had no less than 26 co-sponsors in the Florida House of Representatives. The bill acknowledges the constitutional principles in place that parents, who have children in their care, have certain liberties to protect the privacy of their offspring. This ranges from choices related to education and/or health care.

What is interesting and what we have shared with our members is that HB241 created F.S. 1014.06 under Parental Bill of Rights. This new statute is not within the pharmacy practice act (F.S. 465) or the general health profession laws (F.S. 456); rather, it is in a new section. Under this new statute, you will find this language: “Except as otherwise provided by law, a health care practitioner, as defined in s.456.001, or an individual employed by such health care practitioner may not provide or solicit or arrange to provide health care services or prescribe medicinal drugs to a minor child without first obtaining written parental consent.” If you look under F.S. 456.001, you will discover that pharmacists are listed as one of the many “health care practitioners” under Florida laws.

So, what does this have to do with pharmacists? Well, the simple answer is before you provide a pharmacy service such as dispensing or consulting to a minor, you must have written consent from the parent of the child. Failure to get that consent means that you may be committing a misdemeanor.

It gets more interesting as we dive deeper into this issue. The Board of Pharmacy has revised its disciplinary guidelines to address this issue. Rule 64B16-30.001 has been changed (effective 3/13/2022) to create a licensure penalty for failure to comply with parental consent requirements of F.S. 1016.06. The minimum penalty is a reprimand and a $250 fine with a maximum penalty of a 1 year probation and a fine of $500. For repeat offenders, the penalty could go as high as a revocation of the license.

So, who is considered a minor? Our general counsel, T. J. Morton, points to F.S. 1.01(13) as defining a minor as anyone who has not reached the age of 18; so anyone who is 17 or under will be the subject of the need to get consent. Some of our members were interested in how HIPAA privacy standards permit getting consent from someone who is not a patient. According to HHS, which is responsible for interpreting and enforcing HIPAA, HIPAA allows a parent to access his or her minor child’s medical records. However, there are 3 limited exceptions to this: ■ When the consent of the parent is not required under state law. Un-

Michael Jackson, B.Pharm, CPh FPA CEO (Ret)

TJ Morton

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610 N. Adams St. • Tallahassee, FL 32301 850/222-2400 • FAX 850/561-6758 Web address: www.floridapharmacy.org. der section 1014.06, consent of the parent is almost always required.

Thus, this exception will rarely apply in Florida. ■ When the minor obtains care at the direction of a court or courtappointed representative. ■ When, and to the extent, that the parents agree that the provider and the child may have a confidential relationship.

Even if one of these exceptions applies, a parent may still have a right to access the records if a state law allows it.

So how does a pharmacy comply with this obligation? Recalling my time as a community pharmacist health care provider, the services I delivered to minor patients always seem to be through the child’s parent. It was very rare to receive a prescription at the counter from a minor child. The appropriate thing to do is to create a simple consent form or digital signature log. We sign consent forms all the time for our children to attend and participate in school functions. You can easily build one from those templates or if you prefer a more formalized process, you can have your legal counsel draft something for you that is appropriate for your pharmacy. It is probably recommended to keep those records for at least 4 years. Many other health care providers flag consent forms for renewal after some time has passed. Keeping the patient’s age in your pharmacy point-of-care systems may also help to determine whether getting a signed consent is needed. ■

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