Right to Try model legislation

Right to Try Model Legislation

A bill to authorize access to and use of experimental treatments for patients with an advanced illness; to
establish conditions for use of experimental treatment; to prohibit sanctions of health care providers
solely for recommending or providing experimental treatment; to clarify duties of a health insurer with
regard to experimental treatment authorized under this act; to prohibit certain actions by state officials,
employees, and agents; and to restrict certain causes of action arising from experimental treatment.
THE PEOPLE OF THE STATE OF _______________________ ENACT:
Sec. 1.
(1) This act shall be known and may be cited as the “right to try act”.
(2) As used in this act, and unless the context otherwise requires:
(a) “Advanced illness”, for purposes of this section only, means a progressive disease or
medical or surgical condition that entails significant functional impairment, that is not
considered by a treating physician to be reversible even with administration of current
federal drug administration approved and available treatments, and that, without lifesustaining
procedures, will soon result in death.
(b) “Eligible patient” means an individual who meets all of the following conditions:
(i) Has an advanced illness, attested to by the patient’s treating physician.
(ii) Has considered all other treatment options currently approved by the United
States food and drug administration.
(iii) Has received a recommendation from his or her physician for an
investigational drug, biological product, or device.
(iv) Has given written, informed consent for the use of the investigational drug,
biological product, or device.
(v) Has documentation from his or her physician that he or she meets the
requirements of this subdivision.
(c) “Investigational drug, biological product, or device” means a drug, biological product,
or device that has successfully completed phase 1 of a clinical trial but has not yet been
approved for general use by the United States food and drug administration and
remains under investigation in a United States food and drug administration-approved
clinical trial.
(d) “Written, informed consent” means a written document that is signed by the
patient; parent, if the patient is a minor; legal guardian; or patient advocate designated
by the patient under section _____________ of the estates and protected individuals
code, _____________________, and attested to by the patient’s physician and a witness
and that, at a minimum, includes all of the following:
(i) An explanation of the currently approved products and treatments for the
disease or condition from which the patient suffers.
(ii) An attestation that the patient concurs with his or her Physician in believing
that all currently approved and conventionally recognized treatments are
unlikely to prolong the patient’s life.
(iii) Clear identification of the specific proposed investigational drug, biological
product, or device that the patient is seeking to use.
(iv) A description of the potentially best and worst outcomes of using the
investigational drug, biological product, or device and a realistic description of
the most likely outcome. The description shall include the possibility that new,
unanticipated, different, or worse symptoms might result and that death could
be hastened by the proposed treatment. The description shall be based on the
physician’s knowledge of the proposed treatment in conjunction with an
awareness of the patient’s condition.
(v) A statement that the patient’s health plan or third party administrator and
provider are not obligated to pay for any care or treatments consequent to the
use of the investigational drug, biological product, or device, unless they are
specifically required to do so by law or contract.
(vi) A statement that the patient’s eligibility for hospice care may be withdrawn if the patient begins curative treatment with the investigational drug, biological
product, or device and that care may be reinstated if this treatment ends and
the patient meets hospice eligibility requirements.
(vii) A statement that the patient understands that he or she is liable for all
expenses consequent to the use of the investigational drug, biological product,
or device and that this liability extends to the patient’s estate, unless a contract
between the patient and the manufacturer of the drug, biological product, or
device states otherwise.
Sec. 2.
(1) A manufacturer of an investigational drug, biological product, or device may make available
and an eligible patient may request the manufacturer’s investigational drug, biological product,
or device under this act. This act does not require that a manufacturer make available an
investigational drug, biological product, or device to an eligible patient.
(2) A manufacturer may do all of the following:
(a) Provide an investigational drug, biological product, or device to an eligible patient
without receiving compensation.
(b) Require an eligible patient to pay the costs of, or the costs associated with, the
manufacture of the investigational drug, biological product, or device.
Sec. 3.
(1) This act does not expand the coverage required of an insurer under the insurance code of
_______________________________________.
(2) A health plan, third party administrator, or governmental agency may, but is not required to,
provide coverage for the cost of an investigational drug, biological product, or device, or the
cost of services related to the use of an investigational drug, biological product, or device under
this act.
(3) This act does not require any governmental agency to pay costs associated with the use,
care, or treatment of a patient with an investigational drug, biological product, or device.
(4) This act does not require a hospital or facility licensed under part __________ of the public
health code, __________________________________, to provide new or additional services,
unless approved by the hospital or facility.
Sec. 4. If a patient dies while being treated by an investigational drug, biological product, or device, the
patient’s heirs are not liable for any outstanding debt related to the treatment or lack of insurance due
to the treatment.
Sec. 5. A licensing board or disciplinary subcommittee shall not revoke, fail to renew, suspend, or take
any action against a health care provider’s license issued under article _________ of the public health
code, _______________________________________ and ________________________, based solely on
the health care provider’s recommendations to an eligible patient regarding access to or treatment with
an investigational drug, biological product, or device. An entity responsible for medicare certification
shall not take action against a health care provider’s medicare certification based solely on the health
care provider’s recommendation that a patient have access to an investigational drug, biological
product, or device.
Sec. 6. An official, employee, or agent of this state shall not block or attempt to block an eligible
patient’s access to an investigational drug, biological product, or device. Counseling, advice, or a
recommendation consistent with medical standards of care from a licensed health care provider is not a
violation of this section.
Sec. 7.
(1) This act does not create a private cause of action against a manufacturer of an
investigational drug, biological product, or device or against any other person or entity involved
in the care of an eligible patient using the investigational drug, biological product, or device for
any harm done to the eligible patient resulting from the investigational drug, biological product,
or device, if the manufacturer or other person or entity is complying in good faith with the terms
of this act and has exercised reasonable care.
(2) This act does not affect any mandatory health care coverage for participation in clinical trials
under the insurance code of ______________________________________.