By: Black H.B. No. 1513
73R4042 CAG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and functions of the Texas State Board
1-3 of Pharmacy and to the regulation of the practice of pharmacy;
1-4 providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 3, Texas Pharmacy Act (Article 4542a-1,
1-7 Vernon's Texas Civil Statutes), is amended to read as follows:
1-8 Sec. 3. Sunset provision. The Texas State Board of Pharmacy
1-9 is subject to Chapter 325, Government Code (Texas Sunset Act).
1-10 Unless continued in existence as provided by that chapter, the
1-11 board is abolished and this Act expires September 1, 2005 <1993>.
1-12 SECTION 2. Section 7, Texas Pharmacy Act (Article 4542a-1,
1-13 Vernon's Texas Civil Statutes), is amended to read as follows:
1-14 Sec. 7. Membership. (a) The board consists of nine
1-15 members, six <seven> of whom must be licensed pharmacists and three
1-16 <two> of whom must be representatives of the general public. There
1-17 shall be representation on the board for licensed pharmacists who
1-18 are primarily employed in Class A and Class C pharmacies.
1-19 (b) A person <who is required to register as a lobbyist
1-20 under Chapter 305, Government Code, by virtue of his activities as
1-21 a member of a trade or professional association in the regulated
1-22 profession> may not act as general counsel or serve as a member of
1-23 the board if the person is required to register as a lobbyist under
1-24 Chapter 305, Government Code, and its subsequent amendments,
2-1 because of the person's activities for compensation on behalf of a
2-2 profession related to the operation of the board.
2-3 SECTION 3. Section 8, Texas Pharmacy Act (Article 4542a-1,
2-4 Vernon's Texas Civil Statutes), is amended to read as follows:
2-5 Sec. 8. Qualifications. (a) A licensed pharmacist member
2-6 of the board may not be a salaried faculty member at a college of
2-7 pharmacy and must at the time of his appointment:
2-8 (1) be a resident of this state;
2-9 (2) be licensed for the five years immediately
2-10 preceding appointment and be in good standing to engage in the
2-11 practice of pharmacy in this state; and
2-12 (3) be engaged in the practice of pharmacy in this
2-13 state<; and>
2-14 <(4) not be an officer, employee, or paid consultant
2-15 of a trade association in the regulated industry or be related
2-16 within the second degree by affinity or consanguinity, as
2-17 determined under Article 5996h, Revised Statutes, to a person who
2-18 is an officer, employee, or paid consultant of a trade association
2-19 in the regulated industry>.
2-20 (b) A person is not eligible for appointment as a public
2-21 member of the board if the person or the person's spouse:
2-22 (1) is registered, certified, or licensed by an
2-23 occupational regulatory agency in the field of health care;
2-24 (2) is employed by or participates in the management
2-25 of a <an agency or> business entity or other organization regulated
2-26 by the board or receiving funds from the board <that provides
2-27 health care services or that sells, manufactures, or distributes
3-1 health care supplies or equipment>; <or>
3-2 (3) owns or<,> controls<, or has an interest in>,
3-3 directly or indirectly, more than a 10 percent interest in <of> a
3-4 business entity or other organization regulated by the board or
3-5 receiving funds from the board; or
3-6 (4) uses or receives a substantial amount of tangible
3-7 goods, services, or funds from the board, other than compensation
3-8 or reimbursement authorized by law for board membership,
3-9 attendance, or expenses <that provides health care services or that
3-10 sells, manufactures, or distributes health care supplies or
3-11 equipment>.
3-12 (c) It is a ground for removal from the board if a member:
3-13 (1) does not have at the time of appointment or does
3-14 not maintain during his service on the board the qualifications
3-15 required by Section 7(a) of this Act; <Subsection (a) or (b) of
3-16 this section, as appropriate; or>
3-17 (2) violates the prohibition prescribed by Section
3-18 7(b) of this Act or Subsection (a) of this section;
3-19 (3) cannot discharge the member's duties for a
3-20 substantial part of the term for which the member is appointed
3-21 because of illness or disability; or
3-22 (4) is absent from more than half of the regularly
3-23 scheduled board meetings that the member is eligible to attend
3-24 during a calendar year unless the absence is excused by majority
3-25 vote of the board.
3-26 (d) The validity of an action of the board is not affected
3-27 by the fact that it is taken when a ground for removal of a board
4-1 member exists.
4-2 (e) If the executive director has knowledge that a potential
4-3 ground for removal exists, the executive director shall notify the
4-4 president of the board of the ground. The president shall then
4-5 notify the governor that a potential ground for removal exists.
4-6 SECTION 4. Section 9(a), Texas Pharmacy Act (Article
4-7 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
4-8 follows:
4-9 (a) The governor shall appoint the members of the board with
4-10 the advice and consent of the senate. Appointments to the board
4-11 shall be made without regard to the race, color, disability
4-12 <creed>, sex, religion, age, or national origin of the appointee.
4-13 SECTION 5. Section 12, Texas Pharmacy Act (Article 4542a-1,
4-14 Vernon's Texas Civil Statutes), is amended by amending Subsections
4-15 (c), (d), and (e) and by adding Subsection (f) to read as follows:
4-16 (c) The board shall employ a licensed pharmacist who shall
4-17 serve as a secretary to and be an ex officio member of the board
4-18 without vote to serve as a full-time employee of the board in the
4-19 position of executive director. The executive director shall be
4-20 responsible for the performance of the regular administrative
4-21 functions of the board and other duties as the board may direct.
4-22 The executive director may not perform any discretionary or
4-23 decision-making functions for which the board is solely
4-24 responsible. The board shall develop and implement policies that
4-25 clearly define the respective responsibilities of the board and the
4-26 staff of the board.
4-27 (d) The executive director or the executive director's <his>
5-1 designee shall develop within one year of the effective date of
5-2 this Act an intra-agency career ladder program, one part of which
5-3 shall be the intra-agency posting of all nonentry level positions
5-4 concurrently with <for at least 10 days prior to> any public
5-5 posting.
5-6 (e) The executive director or the executive director's <his>
5-7 designee shall develop <within one year of the effective date of
5-8 this Act> a system of annual performance evaluations <based on
5-9 measurable job tasks>. All <Within two years of the effective date
5-10 of this Act, all> merit pay for board employees <authorized by the
5-11 executive director> must be based on the system established by this
5-12 subsection.
5-13 (f) Each board member shall comply with the board member
5-14 training requirements established by any other state agency that is
5-15 given authority to establish the requirements for the board.
5-16 SECTION 6. Section 15, Texas Pharmacy Act (Article 4542a-1,
5-17 Vernon's Texas Civil Statutes), is amended by amending Subsection
5-18 (c) and by adding Subsections (d), (e), and (f) to read as follows:
5-19 (c) An <employee of the board may not be an> officer,
5-20 employee, or paid consultant of a Texas trade association in the
5-21 field of health care may not be a member or employee of the board
5-22 who is exempt from the state's position classification plan or is
5-23 compensated at or above the amount prescribed by the General
5-24 Appropriations Act for step 1, salary group 17, of the position
5-25 classification salary schedule <regulated industry or be related
5-26 within the second degree by affinity or consanguinity, as
5-27 determined under Article 5996h, Revised Statutes, to a person who
6-1 is an officer, employee, or paid consultant of a trade association
6-2 in the regulated industry>.
6-3 (d) A person who is the spouse of an officer, manager, or
6-4 paid consultant of a Texas trade association in the field of health
6-5 care may not be a board member and may not be a board employee who
6-6 is exempt from the state's position classification plan or is
6-7 compensated at or above the amount prescribed by the General
6-8 Appropriations Act for step 1, salary group 17, of the position
6-9 classification salary schedule.
6-10 (e) For the purposes of this section, a Texas trade
6-11 association is a nonprofit, cooperative, and voluntarily joined
6-12 association of business or professional competitors in this state
6-13 designed to assist its members and its industry or profession in
6-14 dealing with mutual business or professional problems and in
6-15 promoting their common interest.
6-16 (f) The board shall provide to its members and employees, as
6-17 often as necessary, information regarding their qualification for
6-18 office or employment under this Act and their responsibilities
6-19 under applicable laws relating to standards of conduct for state
6-20 officers or employees.
6-21 SECTION 7. The Texas Pharmacy Act (Article 4542a-1, Vernon's
6-22 Texas Civil Statutes) is amended by adding Section 15A to read as
6-23 follows:
6-24 Sec. 15A. EQUAL EMPLOYMENT OPPORTUNITIES. (a) The
6-25 executive director or the executive director's designee shall
6-26 prepare and maintain a written policy statement to assure
6-27 implementation of a program of equal employment opportunity under
7-1 which all personnel transactions are made without regard to race,
7-2 color, disability, sex, religion, age, or national origin. The
7-3 policy statement must include:
7-4 (1) personnel policies, including policies relating to
7-5 recruitment, evaluation, selection, appointment, training, and
7-6 promotion of personnel that are in compliance with requirements of
7-7 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
7-8 Civil Statutes) and its subsequent amendments;
7-9 (2) a comprehensive analysis of the board work force
7-10 that meets federal and state guidelines;
7-11 (3) procedures by which a determination can be made of
7-12 significant underuse in the board work force of all persons for
7-13 whom federal or state guidelines encourage a more equitable
7-14 balance; and
7-15 (4) reasonable methods to appropriately address those
7-16 areas of significant underuse.
7-17 (b) A policy statement prepared under Subsection (a) of this
7-18 section must cover an annual period, be updated annually and
7-19 reviewed by the Commission on Human Rights for compliance with
7-20 Subsection (a)(1) of this section, and be filed with the governor's
7-21 office.
7-22 (c) The governor's office shall deliver a biennial report to
7-23 the legislature based on the information received under Subsection
7-24 (b) of this section. The report may be made separately or as a
7-25 part of other biennial reports made to the legislature.
7-26 SECTION 8. Section 16, Texas Pharmacy Act (Article 4542a-1,
7-27 Vernon's Texas Civil Statutes), is amended by adding Subsection (c)
8-1 to read as follows:
8-2 (c) The board may not include in its rules to prohibit
8-3 false, misleading, or deceptive practices by a person regulated by
8-4 the board a rule that:
8-5 (1) restricts the use of any medium for advertising;
8-6 (2) restricts the person's personal appearance or use
8-7 of the person's voice in an advertisement;
8-8 (3) relates to the size or duration of an
8-9 advertisement by the person; or
8-10 (4) restricts the person's advertisement under a trade
8-11 name.
8-12 SECTION 9. Section 17(f), Texas Pharmacy Act (Article
8-13 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
8-14 follows:
8-15 (f) The board shall submit whatever reports are required by
8-16 state law. The <Before December 1 of each year, the> board shall
8-17 file annually with the governor and the presiding officer of each
8-18 house of the legislature a complete and detailed <a> written report
8-19 accounting <with the legislature and the governor in which the
8-20 board accounts> for all funds received and disbursed by the board
8-21 during the preceding fiscal year. The annual report must be in the
8-22 form and reported in the time provided by the General
8-23 Appropriations Act.
8-24 SECTION 10. The Texas Pharmacy Act (Article 4542a-1,
8-25 Vernon's Texas Civil Statutes) is amended by adding Sections 17A,
8-26 17B, 17C, 17D, and 17E to read as follows:
8-27 Sec. 17A. PUBLIC INTEREST INFORMATION AND COMPLAINTS; PUBLIC
9-1 ACCESS TO BOARD FUNCTIONS. (a) The board shall prepare
9-2 information of public interest describing the functions of the
9-3 board and the board's procedures by which complaints are filed with
9-4 and resolved by the board. The board shall make the information
9-5 available to the public and appropriate state agencies.
9-6 (b) The board by rule shall establish methods by which
9-7 consumers and service recipients are notified of the name, mailing
9-8 address, and telephone number of the board for the purpose of
9-9 directing complaints to the board. The board may provide for that
9-10 notification:
9-11 (1) on each registration form, application, or written
9-12 contract for services of an individual or entity regulated under
9-13 this Act;
9-14 (2) on a sign prominently displayed in the place of
9-15 business of each individual or entity regulated under this Act; or
9-16 (3) in a bill for service provided by an individual or
9-17 entity regulated under this Act.
9-18 (c) The board shall list along with its regular telephone
9-19 number the toll-free telephone number that may be called to present
9-20 a complaint about a health professional if the toll-free number is
9-21 established under other state law.
9-22 (d) The board shall develop and implement policies that
9-23 provide the public with a reasonable opportunity to appear before
9-24 the board and to speak on any issue under the jurisdiction of the
9-25 board.
9-26 (e) The board shall prepare and maintain a written plan that
9-27 describes how a person who does not speak English can be provided
10-1 reasonable access to the board's programs. The board shall also
10-2 comply with federal and state laws for program and facility
10-3 accessibility.
10-4 Sec. 17B. RECORDS OF COMPLAINTS. (a) The board shall keep
10-5 an information file about each complaint filed with the board. The
10-6 board's information file shall be kept current and contain a record
10-7 for each complaint of:
10-8 (1) all persons contacted in relation to the
10-9 complaint;
10-10 (2) a summary of findings made at each step of the
10-11 complaint process;
10-12 (3) an explanation of the legal basis and reason for a
10-13 complaint that is dismissed; and
10-14 (4) other relevant information.
10-15 (b) If a written complaint is filed with the board that the
10-16 board has authority to resolve, the board, at least as frequently
10-17 as quarterly and until final disposition of the complaint, shall
10-18 notify the parties to the complaint of the status of the complaint
10-19 unless the notice would jeopardize an undercover investigation.
10-20 (c) The board by rule shall adopt a form to standardize
10-21 information concerning complaints made to the board. The board by
10-22 rule shall prescribe information to be provided to a person when
10-23 the person files a complaint with the board.
10-24 (d) The board shall provide reasonable assistance to a
10-25 person who wishes to file a complaint with the board.
10-26 Sec. 17C. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
10-27 board shall adopt rules concerning the investigation of a complaint
11-1 filed with the board. The rules adopted under this subsection
11-2 shall:
11-3 (1) distinguish between categories of complaints;
11-4 (2) ensure that complaints are not dismissed without
11-5 appropriate consideration;
11-6 (3) require that the board be advised of a complaint
11-7 that is dismissed and that a letter be sent to the person who filed
11-8 the complaint explaining the action taken on the dismissed
11-9 complaint;
11-10 (4) ensure that the person who filed the complaint has
11-11 an opportunity to explain the allegations made in the complaint;
11-12 and
11-13 (5) prescribe guidelines concerning the categories of
11-14 complaints that require the use of a private investigator and the
11-15 procedures for the board to obtain the services of a private
11-16 investigator.
11-17 (b) The board shall dispose of all complaints in a timely
11-18 manner. The board shall establish a timeline for conducting each
11-19 phase of a complaint that is under the control of the board not
11-20 later than the 30th day after the date the complaint is received by
11-21 the board. The timeline shall be kept in the information file for
11-22 the complaint and all parties shall be notified of the projected
11-23 time requirements for pursuing the complaint. A change in the
11-24 timeline must be noted in the complaint information file and all
11-25 parties to the complaint must be notified not later than the
11-26 seventh day after the date the change is made.
11-27 (c) The executive director of the board shall notify the
12-1 board of a complaint that extends beyond the time prescribed by the
12-2 board for resolving the complaint so that the board may take
12-3 necessary action on the complaint.
12-4 Sec. 17D. INFORMAL PROCEEDINGS. (a) The board by rule
12-5 shall adopt procedures governing:
12-6 (1) informal disposition of a contested case under
12-7 Section 13(e), Administrative Procedure and Texas Register Act
12-8 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-9 subsequent amendments; and
12-10 (2) informal proceedings held in compliance with
12-11 Section 18(c), Administrative Procedure and Texas Register Act
12-12 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-13 subsequent amendments.
12-14 (b) Rules adopted under this section must provide the
12-15 complainant and the licensee an opportunity to be heard and must
12-16 require the presence of a representative of the office of the
12-17 attorney general to advise the board or the board's employees.
12-18 Sec. 17E. MONITORING OF LICENSE HOLDER. The board by rule
12-19 shall develop a system for monitoring license holders' compliance
12-20 with the requirements of this Act. Rules adopted under this
12-21 section shall include procedures for monitoring a license holder
12-22 who is ordered by the board to perform certain acts to ascertain
12-23 that the license holder performs the required acts and to identify
12-24 and monitor license holders who represent a risk to the public.
12-25 SECTION 11. Section 21, Texas Pharmacy Act (Article 4542a-1,
12-26 Vernon's Texas Civil Statutes), is amended by amending Subsections
12-27 (c) and (d) and by adding Subsection (h) to read as follows:
13-1 (c) The examinations for licensing required under this
13-2 section shall be given by the board at least two times during the
13-3 fiscal year of the state. The board shall determine the content
13-4 and subject matter of each examination and determine which persons
13-5 have successfully passed the examination. <An applicant who fails
13-6 the examination may retake the examination.> If requested in
13-7 writing by a person who fails the licensing examination
13-8 administered under this Act <so requests in writing>, the board
13-9 shall furnish the person with an analysis of the person's <his>
13-10 performance on the examination.
13-11 (d) The examination shall be prepared to measure the
13-12 competence of the applicant to engage in the practice of pharmacy.
13-13 The board may employ and cooperate with any organization or
13-14 consultant in the preparation and grading of an appropriate
13-15 examination, but shall retain the sole discretion and
13-16 responsibility of determining which applicants have successfully
13-17 passed the examination. A written examination prepared or offered
13-18 by the board, including standardized national examinations, shall
13-19 be validated by an independent testing professional.
13-20 (h) The board by rule shall establish the conditions under
13-21 which an applicant who fails the licensing examination may retake
13-22 the examination. The board may require an applicant to fulfill
13-23 additional educational requirements and may deny an applicant who
13-24 failed the examination the opportunity to retake the examination.
13-25 SECTION 12. Section 22, Texas Pharmacy Act (Article 4542a-1,
13-26 Vernon's Texas Civil Statutes), is amended to read as follows:
13-27 Sec. 22. Qualification for Licensing by Reciprocity.
14-1 (a) To qualify for a temporary license to practice pharmacy by
14-2 reciprocity, an applicant for licensing must:
14-3 (1) submit to the board a reciprocity fee as
14-4 determined by the board and a completed application given under
14-5 oath, in the form prescribed by the board;
14-6 (2) <have good moral character;>
14-7 <(3)> have graduated and received the first
14-8 professional undergraduate degree or the advanced professional
14-9 practice degree from an accredited pharmacy degree program approved
14-10 by the board;
14-11 (3) <(4)> have possessed at the time of initial
14-12 licensing as a pharmacist other qualifications necessary to have
14-13 been eligible for licensing at that time in this state;
14-14 (4) <(5)> have presented to the board proof of initial
14-15 licensing by examination and proof that the license and other
14-16 license or licenses granted to the applicant by any other state
14-17 have not been suspended, revoked, canceled, surrendered, or
14-18 otherwise restricted for any reason; and
14-19 (5) submit to the board a notice of sponsorship of the
14-20 applicant by a licensee of the state under whom the applicant will
14-21 practice
14-22 <(6) pass the Texas Drug and Pharmacy Jurisprudence
14-23 examination>.
14-24 (b) A holder of a temporary license under this section shall
14-25 receive a permanent license if the applicant:
14-26 (1) passes the Texas Drug and Pharmacy Jurisprudence
14-27 examination;
15-1 (2) has verified the academic and professional
15-2 credentials of the applicant; and
15-3 (3) satisfies any other requirement set by statute.
15-4 (c) A person who falsely makes a statement to the board <the
15-5 affidavit prescribed by Subsection (a) of this section> is guilty
15-6 of fraudulent and dishonorable conduct and malpractice and is
15-7 subject to all penalties that may be prescribed for making a false
15-8 affidavit.
15-9 (d) <(c)> An applicant is not eligible for licensing by
15-10 reciprocity unless the state in which the applicant was initially
15-11 licensed as a pharmacist also grants reciprocal licensing to
15-12 pharmacists duly licensed by examination in this state, under like
15-13 circumstances and conditions.
15-14 (e) The board shall either grant or deny an application for
15-15 a permanent license within 180 days after the date of the board's
15-16 receipt of all required forms or information.
15-17 (f) The board shall adopt rules relating to the conditions
15-18 of sponsorship under Subsection (a)(5) of this section, including
15-19 waiver of the requirement in the event of a hardship.
15-20 SECTION 13. Section 24, Texas Pharmacy Act (Article 4542a-1,
15-21 Vernon's Texas Civil Statutes), is amended to read as follows:
15-22 Sec. 24. License renewal. (a) The board by rule may adopt
15-23 a system under which licenses expire on various dates during the
15-24 year. For the year in which the license expiration date is
15-25 changed, license fees payable on February 1 shall be prorated on a
15-26 monthly basis so that each licensee shall pay only that portion of
15-27 the license fee that is allocable to the number of months during
16-1 which the license is valid. On renewal of the license on the new
16-2 expiration date, the total license renewal fee is payable <A
16-3 license to practice pharmacy expires on December 31 of each year or
16-4 of every other year, as determined by the board. To be eligible to
16-5 renew the license, a licensee must comply with the continuing
16-6 education requirements prescribed by the board>.
16-7 (b) The license may be renewed for one or two years, as
16-8 determined by the board, by payment of a renewal fee as determined
16-9 by the board and by filing a completed application, given under
16-10 oath, with the board for a license renewal certificate before the
16-11 expiration date of the license. The application must state that
16-12 the mandatory <number of hours of> continuing education
16-13 requirements have been completed by the licensee during the
16-14 preceding license period.
16-15 (c) On timely receipt of the completed application, the
16-16 renewal fee, and proof of completion of the continuing education
16-17 requirements prescribed by Section 24A of this Act, the board shall
16-18 issue a license renewal certificate bearing the pharmacist's
16-19 license number, the period for which it is renewed, and other
16-20 information the board determines necessary.
16-21 (d) If a person's license has been expired for <not more
16-22 than> 90 days or less, the person may renew the license by paying
16-23 to the board the required renewal fee and a fee that is one-half of
16-24 the examination fee for the license.
16-25 (e) If a person's license has been expired for more than 90
16-26 days but less than one year <two years>, the person may renew the
16-27 license by paying to the board all unpaid renewal fees and a fee
17-1 that is equal to the examination fee for the license.
17-2 (f) If a person's license has been expired for one year <two
17-3 years> or more, the person may not renew the license <and must
17-4 apply for a new license>. The board may issue a new license to
17-5 that person if the person has not had a license granted by any
17-6 other state suspended, revoked, canceled, surrendered, or otherwise
17-7 restricted for any reason, and if the person:
17-8 (1) was licensed as a pharmacist in this state, moved
17-9 to another state, is licensed in the other state and has been
17-10 engaged in the practice of pharmacy in the other state for the two
17-11 years preceding the application for a new license, pays to the
17-12 board an amount equal to the examination fee for the license, and
17-13 passes the Texas Drug and Pharmacy Jurisprudence examination;
17-14 (2) was licensed as a pharmacist in this state, pays
17-15 to the board an amount equal to the examination fee for the
17-16 license, successfully passes the Texas Drug and Pharmacy
17-17 Jurisprudence examination and any other examination required by the
17-18 board, and, in addition to or in lieu of passing the examination as
17-19 required by the board, participates in continuing pharmacy
17-20 education and practices under conditions set by the board; or
17-21 (3) submits to reexamination and complies with the
17-22 requirements and procedures for obtaining an original license.
17-23 (g) At least 30 days before the expiration of a person's
17-24 license, the board shall send written notice of the impending
17-25 license expiration to the person at the licensee's last known
17-26 address according to the records of the board. Notwithstanding
17-27 Subsection (f) of this section, the board may renew without
18-1 reexamination an expired license of a person who was licensed in
18-2 this state, moved to another state, and is currently licensed and
18-3 has been in practice in the other state for the two years preceding
18-4 application. The person must pay to the board a fee that is equal
18-5 to the examination fee for the license. <The board shall notify
18-6 each licensee in writing of the licensee's impending license
18-7 expiration at least 60 days before the expiration date and again
18-8 two weeks before the expiration date. The notice must state the
18-9 number of continuing education hours the licensee must complete to
18-10 be eligible to renew the license. If the licensee exceeded the
18-11 number of hours of continuing education required for renewal during
18-12 the preceding license period, the notice must include the number of
18-13 hours the licensee may carry forward.>
18-14 <(h) The board shall specify by rule the procedures to be
18-15 followed and the fees to be paid for renewal and penalties for late
18-16 renewal of licenses.>
18-17 <(i) Practicing pharmacy without an annual or biennial
18-18 renewal certificate for the current year, as provided by this Act,
18-19 shall have the same effect and be subject to all penalties of
18-20 practicing pharmacy without a license.>
18-21 <(j) A license to practice pharmacy or annual or biennial
18-22 renewal certificate issued by the board may not be duplicated in
18-23 any manner except as expressly provided by this Act. The board may
18-24 in its discretion issue duplicate copies of either the license to
18-25 practice pharmacy or the annual or biennial renewal certificate on
18-26 request from the holder and on payment of a fee as determined by
18-27 the board.>
19-1 SECTION 14. Section 24A, Texas Pharmacy Act (Article
19-2 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
19-3 follows:
19-4 Sec. 24A. MANDATORY CONTINUING EDUCATION REQUIREMENTS.
19-5 (a) To renew a license to practice pharmacy, a licensee must
19-6 demonstrate to the satisfaction of the board completion of the
19-7 requirement for continuing professional education <as required by
19-8 this section. Each licensee shall execute a certified statement at
19-9 the time of renewal attesting that the licensee has satisfied the
19-10 continuing education requirement>.
19-11 (b) <The continuing education requirement may be met either
19-12 by completing continuing education programs approved by the board
19-13 or by taking and passing a standardized pharmacy examination
19-14 approved by the board. A licensee who elects to take the
19-15 examination must pay the examination fee assessed by the board
19-16 under Section 39 of this Act.>
19-17 <(c) The board shall adopt rules relating to the approval of
19-18 continuing education programs and providers. In adopting the
19-19 rules, the board may consider providers approved by the American
19-20 Council on Pharmaceutical Education and programs approved by the
19-21 Texas Pharmacy Foundation. The board shall approve home study
19-22 courses, correspondence courses, or other similar programs. Each
19-23 program approved by the board shall issue a certificate of
19-24 completion to a licensee who completes the program in a
19-25 satisfactory manner.>
19-26 <(d) An applicant who satisfies the continuing education
19-27 requirement through completion of approved programs must present
20-1 evidence satisfactory to the board of completion of at least 12
20-2 hours of continuing education during the preceding license period.
20-3 A licensee who completes more than 12 hours during the preceding
20-4 license period may carry forward a maximum of 12 hours for the next
20-5 license period.>
20-6 <(e) Each licensee shall maintain records for three years
20-7 evidencing completion of the continuing education programs
20-8 completed by the licensee. On an audit by the board, a licensee is
20-9 considered in compliance with the continuing education requirements
20-10 if the licensee submits to the board:>
20-11 <(1) an affidavit stating that the licensee has
20-12 complied with those requirements; and>
20-13 <(2) records evidencing completion of the continuing
20-14 education programs.>
20-15 <(f)> The board shall adopt rules relating to the operation
20-16 of the mandatory continuing education programs. In establishing
20-17 the requirement for continuing education, the board shall consider:
20-18 (1) factors that lead to the competent performance of
20-19 professional duties; and
20-20 (2) the continuing education needs of licensees.
20-21 (c) The board shall adopt rules relating to the adoption or
20-22 approval of mandatory continuing education programs and providers
20-23 and shall adopt rules to evaluate the effectiveness of the programs
20-24 and a licensee's participation and performance in the programs.
20-25 (d) The board by rule may grant an extension to the
20-26 mandatory continuing education requirements for good cause.
20-27 (e) <(g)> The board may adopt rules to exempt persons from
21-1 all or a portion of the mandatory continuing education requirements
21-2 <during their initial license period>.
21-3 SECTION 15. Section 24B(a), Texas Pharmacy Act (Article
21-4 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
21-5 follows:
21-6 (a) The board by rule shall adopt a system for the placement
21-7 on inactive status of a license held by a person who is licensed by
21-8 the board to practice pharmacy but who is not eligible to renew the
21-9 license for failure to comply with the mandatory continuing
21-10 education requirements of Section 24A of this Act and who is not
21-11 engaged in the practice of pharmacy in this state. The board may
21-12 restrict the length of time a license holder may remain on inactive
21-13 status.
21-14 SECTION 16. The Texas Pharmacy Act (Article 4542a-1,
21-15 Vernon's Texas Civil Statutes) is amended by adding Section 24C to
21-16 read as follows:
21-17 Sec. 24C. TEMPORARY LICENSE. The board by rule may provide
21-18 for the issuance of a temporary license.
21-19 SECTION 17. Section 25, Texas Pharmacy Act (Article 4542a-1,
21-20 Vernon's Texas Civil Statutes), is amended to read as follows:
21-21 Sec. 25. Alternative License Renewal. <(a)> The board may
21-22 adopt a system in which licenses <to practice pharmacy> expire on
21-23 various dates during the year. For
21-24 <(b) In> the year in which the license expiration date is
21-25 changed, <the board shall prorate the> license fees <renewal fee>
21-26 due December 31 shall be prorated on a monthly basis so that each
21-27 licensee shall pay only that portion of the license fee that is
22-1 allocable to the number of <of each year or of every other year, as
22-2 determined by the board, to cover the> months for which the license
22-3 is valid. On renewal of the license on the new expiration date,
22-4 the <The> total license renewal fee is payable <due on the new
22-5 expiration date>.
22-6 SECTION 18. Section 26(a), Texas Pharmacy Act (Article
22-7 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
22-8 follows:
22-9 (a) Grounds for Disciplining a Holder of or Applicant for a
22-10 Pharmacist License: The board shall refuse to issue a pharmacist
22-11 license for failure to meet the requirements of Section 21 or 22 of
22-12 this Act. The board may in its discretion refuse to issue or renew
22-13 a license or may fine, reprimand, revoke, restrict, cancel, retire,
22-14 or suspend any license granted by the board, and may probate any
22-15 license suspension if the board finds that the applicant or
22-16 licensee has:
22-17 (1) violated any provision of this Act or any of the
22-18 rules of the board adopted under this Act;
22-19 (2) engaged in unprofessional conduct as that term is
22-20 defined by the rules of the board;
22-21 (3) engaged in gross immorality as that term is
22-22 defined by the rules of the board;
22-23 (4) developed an incapacity of a nature that prevents
22-24 a pharmacist or applicant from engaging in the practice of pharmacy
22-25 with reasonable skill, competence, and safety to the public. In
22-26 enforcing this subdivision, the board shall, on probable cause,
22-27 request a pharmacist or applicant to submit to a mental or physical
23-1 examination by physicians designated by the board. If the
23-2 pharmacist or applicant refuses to submit to the examination, the
23-3 board shall issue an order requiring the pharmacist or applicant to
23-4 show cause why he will not submit to the examination and shall
23-5 schedule a hearing on the order within 30 days after notice is
23-6 served on the pharmacist or applicant. The pharmacist or applicant
23-7 shall be notified by either personal service or certified mail with
23-8 return receipt requested. At the hearing, the pharmacist or
23-9 applicant and an <his> attorney are entitled to present any
23-10 testimony and other evidence to show why the pharmacist or
23-11 applicant should not be required to submit to the examination.
23-12 After the hearing, the board shall issue an order either requiring
23-13 the pharmacist or applicant to submit to the examination or
23-14 withdrawing the request for examination;
23-15 (5) engaged in any fraud, deceit, or misrepresentation
23-16 as those words are defined by the rules of the board in the
23-17 practice of pharmacy or in seeking a license to act as a
23-18 pharmacist;
23-19 (6) been convicted of a felony or a misdemeanor
23-20 involving moral turpitude by a court of competent jurisdiction;
23-21 (7) a drug or alcohol dependency;
23-22 (8) failed to keep and maintain records required by
23-23 this Act or failed to keep and maintain complete and accurate
23-24 records of purchases and disposals of drugs listed in the
23-25 Controlled Substances Act or the Dangerous Drug Act;
23-26 (9) violated any provision of the Controlled
23-27 Substances Act or Dangerous Drug Act or a rule relating to those
24-1 acts or any provision of Sections 485.031-485.035, Health and
24-2 Safety Code, or a rule adopted under Section 485.011, Health and
24-3 Safety Code;
24-4 (10) aided or abetted an unlicensed individual to
24-5 engage in the practice of pharmacy if the pharmacist knew or
24-6 reasonably should have known that the individual was unlicensed at
24-7 the time;
24-8 (11) refused an entry into any pharmacy for any
24-9 inspection authorized by this Act if the pharmacist had received
24-10 notification from which the pharmacist knew or reasonably should
24-11 have known that the attempted inspection was authorized;
24-12 (12) violated the pharmacy or drug laws or rules of
24-13 this state or any other state or of the United States;
24-14 (13) been negligent in the practice of pharmacy;
24-15 (14) failed to submit to an examination after hearing
24-16 and being ordered to do so by the board pursuant to Subdivision (4)
24-17 of this subsection;
24-18 (15) dispensed prescription drugs while acting outside
24-19 the usual course and scope of professional practice; or
24-20 (16) had a license to practice pharmacy issued by
24-21 another state canceled, revoked, surrendered, or suspended for
24-22 conduct substantially equivalent to conduct described in
24-23 Subdivisions (1) through (15) of this subsection. A certified copy
24-24 of the record of the state taking action as set out above shall be
24-25 conclusive evidence of the action taken by such state.
24-26 SECTION 19. Section 26B(b), Texas Pharmacy Act (Article
24-27 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
25-1 follows:
25-2 (b) A Class E pharmacy is subject to all rules and
25-3 regulations that are applicable to a Class A, B, C, or D pharmacy
25-4 <Except in the case of an emergency that creates an immediate
25-5 danger to the public health or safety, prior to initiating a
25-6 disciplinary action against a Class E pharmacy, the board must file
25-7 a complaint against a Class E pharmacy with the regulatory or
25-8 licensing agency of the state in which the Class E pharmacy is
25-9 located>.
25-10 SECTION 20. Section 27A(d), Texas Pharmacy Act (Article
25-11 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
25-12 follows:
25-13 (d) The records and proceedings of the board, its authorized
25-14 agents, or any pharmaceutical organization committee as set out in
25-15 Subsections (a) and (b) of this section shall be confidential and
25-16 are not considered open records for the purposes of Chapter 424,
25-17 Acts of the 63rd Legislature, Regular Session, 1973, as amended
25-18 (Article 6252-17a, Vernon's Texas Civil Statutes); provided,
25-19 however, the board may disclose this confidential information only:
25-20 (1) in a disciplinary hearing before the board or in a
25-21 subsequent trial or appeal of a board action or order;
25-22 (2) to the pharmacist licensing or disciplinary
25-23 authorities of other jurisdictions; <or>
25-24 (3) pursuant to an order of a court of competent
25-25 jurisdiction; or
25-26 (4) if the licensee is subject to a restriction on the
25-27 licensee's conduct of the practice of pharmacy as a result of a
26-1 substance abuse problem.
26-2 SECTION 21. Section 28(a), Texas Pharmacy Act (Article
26-3 4542a-1, Vernon's Texas Civil Statutes), is amended to read as
26-4 follows:
26-5 (a) On the finding of the existence of grounds for
26-6 discipline of any person holding a license or seeking a license or
26-7 a renewal license under this Act, the board may impose one or more
26-8 of the following penalties:
26-9 (1) suspension of the offender's license;
26-10 (2) revocation of the offender's license;
26-11 (3) restriction of the offender's license to prohibit
26-12 the offender from performing certain acts or from engaging in the
26-13 practice of pharmacy or operating a pharmacy in a particular manner
26-14 for a term and under conditions to be determined by the board;
26-15 (4) imposition of an administrative penalty <a fine
26-16 not to exceed $1,000 for each offense involving diversion of
26-17 controlled substances or a fine not to exceed $250 for any other
26-18 offense>;
26-19 (5) refusal to issue or renew the offender's license;
26-20 (6) placement of the offender's license on probation
26-21 and supervision by the board for a period to be determined by the
26-22 board and imposition of a requirement that the practitioner:
26-23 (A) report regularly to the board on matters
26-24 that are the basis of the probation;
26-25 (B) limit practice to the areas prescribed by
26-26 the board; or
26-27 (C) continue or review professional education
27-1 until the practitioner attains a degree of skill satisfactory to
27-2 the board in those areas that are the basis of the probation;
27-3 (7) reprimand;
27-4 (8) cancellation of the offender's license; <or>
27-5 (9) retirement of the offender's license as provided
27-6 by board rule; or
27-7 (10) imposition of a civil penalty that does not
27-8 exceed $1,000 a day and that may be collected in a suit initiated
27-9 by the board.
27-10 SECTION 22. The Texas Pharmacy Act (Article 4542a-1,
27-11 Vernon's Texas Civil Statutes) is amended by adding Section 28A to
27-12 read as follows:
27-13 Sec. 28A. TEMPORARY SUSPENSION OF LICENSE. If the majority
27-14 of the board or a three-member committee of board members
27-15 designated by the board determines from the evidence or information
27-16 presented to it that a pharmacist by continuation in practice would
27-17 constitute a continuing threat to the public welfare, the board or
27-18 the three-member committee shall temporarily suspend the license of
27-19 the pharmacist. The license may be suspended under this section
27-20 without notice or hearing on the complaint, provided institution of
27-21 proceedings for a hearing before the board is initiated
27-22 simultaneously with the temporary suspension and provided that a
27-23 hearing is held as soon as can be accomplished under this Act and
27-24 the Administrative Procedure Act and its subsequent amendments.
27-25 SECTION 23. The Texas Pharmacy Act (Article 4542a-1,
27-26 Vernon's Texas Civil Statutes) is amended by adding Section 28B to
27-27 read as follows:
28-1 Sec. 28B. ADMINISTRATIVE PENALTIES. (a) If a person
28-2 licensed under this Act violates a provision of this Act or a rule
28-3 or order adopted by the board under this Act, the board may assess
28-4 an administrative penalty against the person as provided by this
28-5 section.
28-6 (b) The penalty for each violation involving the diversion
28-7 of controlled substances may be in an amount not to exceed $5,000.
28-8 The penalty for other offenses may not exceed $250. Each day a
28-9 violation continues or occurs may be considered a separate
28-10 violation for purposes of penalty assessments.
28-11 (c) In determining the amount of the penalty, the executive
28-12 director shall consider:
28-13 (1) the seriousness of the violation, including but
28-14 not limited to the nature, circumstances, extent, and gravity of
28-15 the prohibited acts, and the hazard or potential hazard created to
28-16 the health or safety of the public;
28-17 (2) the economic damage to property or the environment
28-18 caused by the violation;
28-19 (3) the history of previous violations;
28-20 (4) the amount necessary to deter future violations;
28-21 (5) efforts to correct the violation; and
28-22 (6) any other matter that justice may require.
28-23 (d) If, after investigation of a possible violation and the
28-24 facts surrounding that possible violation, the executive director
28-25 determines that a violation has occurred, the executive director
28-26 may issue a violation report stating the facts on which the
28-27 conclusion that a violation occurred is based, recommending that an
29-1 administrative penalty under this section be imposed on the person
29-2 charged, and recommending the amount of that proposed penalty. The
29-3 executive director shall base the recommended amount of the
29-4 proposed penalty on the seriousness of the violation determined by
29-5 consideration of the factors set forth in Subsection (c) of this
29-6 section.
29-7 (e) Not later than the 14th day after the date on which the
29-8 report is issued, the executive director shall give written notice
29-9 of the report to the person charged. The notice shall include a
29-10 brief summary of the charges, a statement of the amount of the
29-11 penalty recommended, and a statement of the right of the person
29-12 charged to a hearing on the occurrence of the violation or the
29-13 amount of the penalty, or both the occurrence of the violation and
29-14 the amount of the penalty.
29-15 (f) Not later than the 20th day after the date on which
29-16 notice is received, the person charged may accept the determination
29-17 of the executive director made under Subsection (d) of this
29-18 section, including the recommended penalty, or make a written
29-19 request for a hearing on the determination.
29-20 (g) If the person charged with the violation accepts the
29-21 determination of the executive director, the board shall issue an
29-22 order approving the determination and ordering the payment of the
29-23 recommended penalty.
29-24 (h) If the person charged requests a hearing or fails to
29-25 timely respond to the notice, the executive director shall set a
29-26 hearing and give notice of the hearing. The hearing shall be held
29-27 by the State Office of Administrative Hearings. The State Office
30-1 of Administrative Hearings shall make findings of fact and
30-2 conclusions of law and promptly issue to the board a proposal for
30-3 decision as to the occurrence of the violation, including a
30-4 recommendation as to the amount of the proposed penalty if a
30-5 penalty is warranted. Based on the findings of fact, conclusions
30-6 of law, and recommendations of the hearing examiner, the board by
30-7 order may find a violation has occurred and may assess a penalty or
30-8 may find that no violation has occurred. All proceedings under
30-9 this subsection are subject to the Administrative Procedure Act and
30-10 its subsequent amendments.
30-11 (i) The executive director shall give notice of the board's
30-12 order to the person charged. The notice shall include:
30-13 (1) the findings of fact and conclusions of law
30-14 separately stated;
30-15 (2) the amount of the penalty ordered, if any;
30-16 (3) a statement of the right of the person charged to
30-17 judicial review of the board's order, if any; and
30-18 (4) other information required by law.
30-19 (j) Within the 30-day period immediately following the day
30-20 on which the order becomes final as provided by Section 16(c),
30-21 Administrative Procedure Act, and its subsequent amendments, the
30-22 person charged with the penalty shall:
30-23 (1) pay the penalty in full; or
30-24 (2) if the person files a petition for judicial review
30-25 contesting either the amount of the penalty or the fact of the
30-26 violation or contesting both the fact of the violation and the
30-27 amount of the penalty:
31-1 (A) forward the amount to the executive director
31-2 for placement in an escrow account; or
31-3 (B) in lieu of payment into escrow, post with
31-4 the executive director a supersedeas bond in a form approved by the
31-5 executive director for the amount of the penalty, the bond to be
31-6 effective until all judicial review of the order or decision is
31-7 final.
31-8 (k) If a person charged is financially unable to either
31-9 forward the amount of the penalty for placement in an escrow
31-10 account or post a supersedeas bond for the amount of the penalty,
31-11 the person may satisfy the requirements of Subsection (j)(2) of
31-12 this section by filing with the executive director an affidavit
31-13 sworn by the person charged, stating that the person is financially
31-14 unable to either forward the amount of the penalty or post a bond.
31-15 (l) Failure to forward the money to or to post the bond or
31-16 file the affidavit with the executive director within the time
31-17 provided by Subsection (j) of this section results in a waiver of
31-18 all legal rights to judicial review. Also, if the person charged
31-19 fails to pay the penalty in full as provided under Subsection
31-20 (j)(1) of this section or forward the money, post the bond, or file
31-21 the affidavit as provided by Subsection (j) or (k) of this section,
31-22 the executive director may forward the matter to the attorney
31-23 general for enforcement.
31-24 (m) Judicial review of the order or decision of the board
31-25 assessing the penalty shall be under the substantial evidence rule
31-26 and shall be instituted by filing a petition with a district court
31-27 in Travis County, as provided by Section 19, Administrative
32-1 Procedure Act, and its subsequent amendments.
32-2 (n) If the penalty is reduced or not assessed by the court,
32-3 the executive director shall remit to the person charged the
32-4 appropriate amount plus accrued interest if the penalty has been
32-5 paid or shall execute a release of the bond if a supersedeas bond
32-6 has been posted. The accrued interest on amounts remitted by the
32-7 executive director under this subsection shall be paid at a rate
32-8 equal to the rate charged on loans to depository institutions by
32-9 the New York Federal Reserve Bank and shall be paid for the period
32-10 beginning on the date the penalty is paid to the executive director
32-11 under Subsection (j) of this section and ending on the date the
32-12 penalty is remitted.
32-13 (o) A penalty collected under this section for a violation
32-14 by a person licensed under this Act shall be deposited in the
32-15 general revenue fund.
32-16 SECTION 24. Section 29, Texas Pharmacy Act (Article 4542a-1,
32-17 Vernon's Texas Civil Statutes), is amended by adding Subsection (h)
32-18 to read as follows:
32-19 (h) A pharmacy shall retain prescription records for four
32-20 years.
32-21 SECTION 25. Section 33, Texas Pharmacy Act (Article 4542a-1,
32-22 Vernon's Texas Civil Statutes), is amended by adding Subsection (e)
32-23 to read as follows:
32-24 (e) A practitioner may not issue a prescription to be
32-25 dispensed unless the prescription contains the following typed,
32-26 printed, or stamped information:
32-27 (1) the practitioner's name, address, and phone
33-1 number; and
33-2 (2) the practitioner's required identification number.
33-3 SECTION 26. Section 39, Texas Pharmacy Act (Article 4542a-1,
33-4 Vernon's Texas Civil Statutes), is amended to read as follows:
33-5 Sec. 39. Fees. The board by rule shall establish reasonable
33-6 and necessary fees so that the fees, in the aggregate, produce
33-7 sufficient revenue to cover the cost of administering this Act.
33-8 The board may not set a fee for an amount less than the amount of
33-9 that fee on September 1, 1993. <may not charge more than the
33-10 following fees for the performance of the following duties and
33-11 functions to carry out the purposes of this Act:>
33-12 <(1) for processing application and administration of
33-13 examination for licensure--$250;>
33-14 <(2) for processing application for licensure by
33-15 reciprocity--$250 (plus the applicable license fee);>
33-16 <(3) for processing application and issuance of a
33-17 pharmacist license or renewal of a pharmacist license--$100 a year;>
33-18 <(4) for processing of an application and issuance of
33-19 a pharmacy license or renewal of a pharmacy license--$150; and>
33-20 <(5) for processing an application and the issuance or
33-21 renewal of a pharmacist license for a pharmacist who has been
33-22 licensed by the board for at least 50 years and who does not
33-23 actively practice pharmacy--$75 a year.>
33-24 SECTION 27. (a) The changes in law made by this Act
33-25 relating to an administrative or civil penalty that may be imposed
33-26 apply only to a violation of the Texas Pharmacy Act (Article
33-27 4542a-1, Vernon's Texas Civil Statutes) or a rule adopted by the
34-1 Texas State Board of Pharmacy that occurs on or after the effective
34-2 date of this Act. A violation occurs on or after the effective
34-3 date of this Act only if each element of the violation occurs on or
34-4 after that date. A violation that occurs before the effective
34-5 date of this Act is governed by the law in effect on the date the
34-6 violation occurred, and the former law is continued in effect for
34-7 this purpose.
34-8 (b) As the terms of members of the Texas State Board of
34-9 Pharmacy expire or as a vacancy occurs on the board, the governor
34-10 shall appoint members to the board to achieve, as soon as possible,
34-11 the membership plan prescribed for the board by this Act.
34-12 (c) The changes in law made by this Act in the
34-13 qualifications of members of the Texas State Board of Pharmacy do
34-14 not affect the entitlement of a member appointed before September
34-15 1, 1993, to continue to hold office on the board for the term for
34-16 which the member was appointed. The changes in the qualifications
34-17 apply only to a member appointed on or after September 1, 1993.
34-18 SECTION 28. Sections 17(m), 17(v), and 26B(c), Texas
34-19 Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
34-20 repealed.
34-21 SECTION 29. This Act takes effect September 1, 1993.
34-22 SECTION 30. The importance of this legislation and the
34-23 crowded condition of the calendars in both houses create an
34-24 emergency and an imperative public necessity that the
34-25 constitutional rule requiring bills to be read on three several
34-26 days in each house be suspended, and this rule is hereby suspended.