1-1  By:  Madla                                             S.B. No. 472
    1-2        (In the Senate - Filed February 24, 1993; February 25, 1993,
    1-3  read first time and referred to Committee on Health and Human
    1-4  Services; April 6, 1993, reported adversely, with favorable
    1-5  Committee Substitute by the following vote:  Yeas 9, Nays 0;
    1-6  April 6, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Zaffirini          x                               
   1-10        Ellis              x                               
   1-11        Madla              x                               
   1-12        Moncrief           x                               
   1-13        Nelson             x                               
   1-14        Patterson          x                               
   1-15        Shelley            x                               
   1-16        Truan              x                               
   1-17        Wentworth          x                               
   1-18  COMMITTEE SUBSTITUTE FOR S.B. No. 472                    By:  Madla
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the practice of pharmacy, including the Texas State
   1-22  Board of Pharmacy, dangerous drugs, and controlled substances.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Section 5, Texas Pharmacy Act (Article 4542a-1,
   1-25  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-26        Sec. 5.  Definitions.  In this Act, unless the context of its
   1-27  use clearly indicates otherwise:
   1-28              (1)  "A.C.P.E." means the American Council on
   1-29  Pharmaceutical Education.
   1-30              (2)  "Administer" means the direct application of a
   1-31  prescription drug by injection, inhalation, ingestion, or any other
   1-32  means to the body of a patient by:
   1-33                    (A)  a practitioner, <or> an authorized agent
   1-34  under his supervision, or other person authorized by law; or
   1-35                    (B)  the patient at the direction of a
   1-36  practitioner.
   1-37              (3)  "Administrative Procedure Act" means the
   1-38  Administrative Procedure and Texas Register Act, as amended
   1-39  (Article 6252-13a, Vernon's Texas Civil Statutes).
   1-40              (4)  "Board" means the Texas State Board of Pharmacy.
   1-41              (5)  "Class A pharmacy license" or "community pharmacy
   1-42  license" means a license issued to a pharmacy dispensing drugs or
   1-43  devices to the general public pursuant to a prescription drug
   1-44  order.
   1-45              (6)  "Class B pharmacy license" or "nuclear pharmacy
   1-46  license" means a license issued to a pharmacy dispensing or
   1-47  providing radioactive drugs or devices for administration to an
   1-48  ultimate user.
   1-49              (7)  "Class C pharmacy license" or "institutional
   1-50  pharmacy license" means a license issued to a pharmacy located in a
   1-51  hospital or other in-patient facility that is licensed under
   1-52  Chapter 241, Health and Safety Code, or Chapter 6, Texas Mental
   1-53  Health Code (Article 5547-1 et seq., Vernon's Texas Civil
   1-54  Statutes), or to a pharmacy located in a hospital maintained or
   1-55  operated by the state.
   1-56              (8)  "Class D pharmacy license" or "clinic pharmacy
   1-57  license" means a license issued to a pharmacy dispensing a limited
   1-58  type of drugs or devices pursuant to a prescription drug order.
   1-59              (9)  "Class E pharmacy license" or "nonresident
   1-60  pharmacy license" means a license issued under this Act to a
   1-61  pharmacy located in a state of the United States other than this
   1-62  state whose primary business is to dispense a prescription drug or
   1-63  device under a prescription drug order and to deliver the drug or
   1-64  device to a patient, including a patient in this state, by the
   1-65  United States mail, a common carrier, or a delivery service.
   1-66              (10)  "College of pharmacy" means a school, university,
   1-67  or college of pharmacy that satisfies the accreditation standards
   1-68  of A.C.P.E. as adopted by the board; or that has degree
    2-1  requirements which meet the standards of accreditation set by the
    2-2  board.
    2-3              (11)  "Compounding" means the preparation, mixing,
    2-4  assembling, packaging, or labeling of a drug or device:
    2-5                    (A)  as the result of a practitioner's
    2-6  prescription drug order or initiative based on the
    2-7  practitioner-patient-pharmacist relationship in the course of
    2-8  professional practice;
    2-9                    (B)  in anticipation of prescription drug orders
   2-10  based on routine, regularly observed prescribing patterns; or
   2-11                    (C)  for the purpose of or as an incident to
   2-12  research, teaching, or chemical analysis and not for sale or
   2-13  dispensing.
   2-14              (12)  "Confidential record" means any health-related
   2-15  record maintained by a pharmacy or pharmacist such as a patient
   2-16  medication record, prescription drug order, or medication order.
   2-17              (13)  "Controlled substance" means a drug, immediate
   2-18  precursor, or other substance listed in Schedules I-V or Penalty
   2-19  Groups 1-4 of Chapter 481, Health and Safety Code, or a drug,
   2-20  immediate precursor, or other substance included in Schedule I, II,
   2-21  III, IV, or V of the Federal Comprehensive Drug Abuse Prevention
   2-22  and Control Act of 1970 (21 U.S.C. Section 801 et seq.).
   2-23              (14) <(12)>  "Controlled Substances Act" means Chapter
   2-24  481, Health and Safety Code, or the Federal Comprehensive Drug
   2-25  Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et
   2-26  seq.).
   2-27              (15) <(13)>  "Dangerous drug" means any drug or device
   2-28  that is not included in Penalty Groups 1-4 of the Controlled
   2-29  Substances Act and that is unsafe for self-medication or any drug
   2-30  or device that bears or is required to bear the legend:
   2-31                    (A)  "Caution:  federal law prohibits dispensing
   2-32  without prescription"; or
   2-33                    (B)  "Caution:  federal law restricts this drug
   2-34  to use by or on the order of a licensed veterinarian."
   2-35              (16) <(14)>  "Dangerous Drug Act" means Chapter 483,
   2-36  Health and Safety Code.
   2-37              (17) <(15)>  "Deliver" or "delivery" means the actual,
   2-38  constructive, or attempted transfer of a prescription drug or
   2-39  device or controlled substance from one person to another, whether
   2-40  or not for a consideration.
   2-41              (18) <(15)>  "Designated agent" means:
   2-42                    (A)  a licensed nurse, physician assistant,
   2-43  pharmacist, or other <an> individual <under the supervision of a
   2-44  practitioner,> designated by a <the> practitioner, and for whom the
   2-45  practitioner assumes legal responsibility, who communicates
   2-46  prescription drug orders <the practitioner's instructions> to a
   2-47  pharmacist;
   2-48                    (B)  a licensed nurse, physician assistant, or
   2-49  pharmacist employed in a health care facility to whom the
   2-50  practitioner communicates a prescription drug order; or
   2-51                    (C)  a registered nurse or physician assistant
   2-52  authorized by a practitioner to carry out a prescription drug order
   2-53  for dangerous drugs under Subdivision (5), Subsection (d), Section
   2-54  3.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil
   2-55  Statutes).
   2-56              (19) <(16)>  "Device" means an instrument, apparatus,
   2-57  implement, machine, contrivance, implant, in vitro reagent, or
   2-58  other similar or related article, including any component part or
   2-59  accessory, that is required under federal or state law to be
   2-60  ordered or prescribed by a practitioner.
   2-61              (20) <(17)>  "Dispense" means preparing, packaging,
   2-62  compounding, or labeling for delivery a prescription drug or device
   2-63  in the course of professional practice to an ultimate user or his
   2-64  agent by or pursuant to the lawful order of a practitioner.
   2-65              (21) <(18)>  "Distribute" means the delivery of a
   2-66  prescription drug or device other than by administering or
   2-67  dispensing.
   2-68              (22) <(19)>  "Drug" means:
   2-69                    (A)  a substance recognized as drugs in the
   2-70  current official United States Pharmacopoeia, official National
    3-1  Formulary, official Homeopathic Pharmacopoeia, or other drug
    3-2  compendium or any supplement to any of them;
    3-3                    (B)  a substance intended for use in the
    3-4  diagnosis, cure, mitigation, treatment, or prevention of disease in
    3-5  man or other animals;
    3-6                    (C)  a substance, other than food, intended to
    3-7  affect the structure or any function of the body of man or other
    3-8  animals;
    3-9                    (D)  a substance intended for use as a component
   3-10  of any articles specified in Paragraph (A), (B), or (C) of this
   3-11  subdivision;
   3-12                    (E)  a dangerous drug; or
   3-13                    (F)  a controlled substance.
   3-14              (23)  "Drug regimen review" includes the following
   3-15  activities:
   3-16                    (A)  evaluation of the prescription drug or
   3-17  medication orders and patient medication records for:
   3-18                          (i)  known allergies;
   3-19                          (ii)  rational therapy-contraindications;
   3-20                          (iii)  reasonable dose and route of
   3-21  administration; and
   3-22                          (iv)  reasonable directions for use;
   3-23                    (B)  evaluation of the prescription drug or
   3-24  medication orders and patient medication records for duplication of
   3-25  therapy;
   3-26                    (C)  evaluation of the prescription drug or
   3-27  medication orders and patient medication records for:
   3-28                          (i)  drug-drug interactions;
   3-29                          (ii)  drug-food interactions;
   3-30                          (iii)  drug-disease interactions;
   3-31                          (iv)  adverse drug reactions; and
   3-32                    (D)  evaluation of prescription drug and
   3-33  medication orders and patient medication records for proper
   3-34  utilization, including overutilization or underutilization.
   3-35              (24) <(20)>  "Internship" means a practical experience
   3-36  program that is approved by the board.
   3-37              (25) <(21)>  "Label" means written, printed, or graphic
   3-38  matter on the immediate container of a drug or device.
   3-39              (26) <(22)>  "Labeling" means the process of affixing a
   3-40  label including all information required by federal and state law
   3-41  or regulation to any drug or device container.  The term does not
   3-42  include the labeling by a manufacturer, packer, or distributor of a
   3-43  nonprescription drug or commercially packaged prescription drug or
   3-44  device, or unit dose packaging.
   3-45              (27)  "Manufacturing" means the production,
   3-46  preparation, propagation, conversion, or processing of a drug or
   3-47  device, either directly or indirectly, by extraction from
   3-48  substances of natural origin or independently by means of chemical
   3-49  or biological synthesis and includes any packaging or repackaging
   3-50  of the substances or labeling or relabeling of the container and
   3-51  the promotion and marketing of such drugs or devices.
   3-52  Manufacturing also includes the preparation and promotion of
   3-53  commercially available products from bulk compounds for resale by
   3-54  pharmacies, practitioners, or other persons but does not include
   3-55  compounding.
   3-56              (28) <(23)>  "Medication order" means an order from a
   3-57  practitioner or a practitioner's designated agent for
   3-58  administration of a drug or device.
   3-59              (29) <(24)>  "Nonprescription drug" means a nonnarcotic
   3-60  drug or device that may be sold without a prescription and that is
   3-61  labeled and packaged in compliance with applicable state or federal
   3-62  law.
   3-63              (30)  "Patient counseling" means the communication by
   3-64  the pharmacist of information, as specified in the rules of the
   3-65  board, to the patient or caregiver, in order to improve therapy by
   3-66  ensuring proper use of drugs and devices.
   3-67              (31) <(25)>  "Person" means an individual, corporation,
   3-68  government or governmental subdivision or agency, business trust,
   3-69  estate, trust, partnership, association, or any other legal entity.
   3-70              (32)  "Pharmaceutical care" is the provision of drug
    4-1  therapy and other pharmaceutical services defined in the rules of
    4-2  the board and intended to assist in the cure or prevention of a
    4-3  disease, elimination or reduction of a patient's symptoms, or
    4-4  arresting or slowing of a disease process.
    4-5              (33) <(26)>  "Pharmacist" means a person licensed by
    4-6  the board to practice pharmacy.
    4-7              (34) <(27)>  "Pharmacist-in-charge" means the
    4-8  pharmacist designated on a pharmacy license as the pharmacist who
    4-9  has the authority or responsibility for a pharmacy's compliance
   4-10  with laws and rules pertaining to the practice of pharmacy.
   4-11              (35) <(28)>  "Pharmacist-intern" means an undergraduate
   4-12  student enrolled in the professional sequence of a college of
   4-13  pharmacy approved by the board and participating in a school-based,
   4-14  board-approved internship program or a graduate of a college of
   4-15  pharmacy who is participating in a board-approved internship.
   4-16              (36) <(29)>  "Pharmacy" means a facility licensed by
   4-17  the board pursuant to Section 29 of this Act <where the practice of
   4-18  pharmacy occurs>.
   4-19              (37) <(30)>  "Practice of pharmacy" means:
   4-20                    (A)  provision of those acts or services
   4-21  necessary to provide pharmaceutical care;
   4-22                    (B)  interpretation and evaluation of
   4-23  prescription drug orders or medication orders;
   4-24                    (C)  participation in drug and device selection
   4-25  as authorized by law, drug administration, drug regimen review, or
   4-26  drug or drug-related research;
   4-27                    (D)  provision of patient counseling; and
   4-28                    (E)  responsibility for:
   4-29                          (i)  dispensing of prescription drug orders
   4-30  or distribution of medication orders;
   4-31                          (ii)  compounding and labeling of drugs and
   4-32  devices, except labeling by a manufacturer, repackager, or
   4-33  distributor of nonprescription drugs and commercially packaged
   4-34  prescription drugs and devices;
   4-35                          (iii)  proper and safe storage of drugs and
   4-36  devices; or
   4-37                          (iv)  maintenance of proper records for
   4-38  drugs and devices <interpreting and evaluating prescription or
   4-39  medication orders, dispensing and labeling drugs or devices,
   4-40  selecting drugs and reviewing drug utilization, storing
   4-41  prescription drugs and devices and maintaining prescription drug
   4-42  records in a pharmacy, advising or consulting when necessary or
   4-43  required by law about therapeutic value, content, hazard, or use of
   4-44  drugs or devices, or offering or performing the services and
   4-45  transactions necessary to operate a pharmacy>.
   4-46              (38) <(31)>  "Practitioner" means:
   4-47                    (A)  a physician, dentist, podiatrist,
   4-48  veterinarian, or other person licensed or registered to prescribe,
   4-49  distribute, administer, or dispense a prescription drug or device
   4-50  in the course of professional practice in this state;
   4-51                    (B)  a person licensed by another state in a
   4-52  health field in which, under Texas law, licensees in this state may
   4-53  legally prescribe dangerous drugs or a person practicing in another
   4-54  state and licensed by another state as a physician, dentist,
   4-55  veterinarian, or podiatrist, having a current Federal Drug
   4-56  Enforcement Administration registration number, and who may legally
   4-57  prescribe Schedule II, III, IV, or V controlled substances in such
   4-58  other state; or
   4-59                    (C)  a person licensed in the Dominion of Canada
   4-60  or the United Mexican States in a health field in which, under the
   4-61  laws of this state, a licensee may legally prescribe dangerous
   4-62  drugs.  "Practitioner" does not include a person licensed under
   4-63  this Act.
   4-64              (39) <(32)>  "Preceptor" means a pharmacist in good
   4-65  standing licensed in this state to practice pharmacy and certified
   4-66  by the board to supervise and be responsible for the activities and
   4-67  functions of a pharmacist-intern in the internship program.
   4-68              (40) <(33)>  "Prescription drug" means:
   4-69                    (A)  a substance for which federal or state law
   4-70  requires a prescription before it may be legally dispensed to the
    5-1  public;
    5-2                    (B)  a drug or device that under federal law is
    5-3  required, prior to being dispensed or delivered, to be labeled with
    5-4  either of the following statements:
    5-5                          (i)  "Caution:  federal law prohibits
    5-6  dispensing without prescription"; or
    5-7                          (ii)  "Caution:  federal law restricts this
    5-8  drug to use by or on the order of a licensed veterinarian"; or
    5-9                    (C)  a drug or device that is required by any
   5-10  applicable federal or state law or regulation to be dispensed on
   5-11  prescription only or is restricted to use by a practitioner only.
   5-12              (41) <(34)>  "Prescription drug order" means:
   5-13                    (A)  an order from a practitioner or a
   5-14  practitioner's designated agent to a pharmacist for a drug or
   5-15  device to be dispensed; or
   5-16                    (B)  an order pursuant to Subdivision (5),
   5-17  Subsection (d), Section 3.06, Medical Practice Act (Article 4495b,
   5-18  Vernon's Texas Civil Statutes).
   5-19              (42)  "Prospective drug use review" means a review of
   5-20  the patient's drug therapy and prescription drug order or
   5-21  medication order, as defined in the rules of the board, prior to
   5-22  dispensing or distributing the drug.
   5-23              (43) <(35)>  "Provide" means to supply one or more unit
   5-24  doses of a nonprescription drug or dangerous drug to a patient.
   5-25              (44) <(36)>  "Radioactive drug" means a drug that
   5-26  exhibits spontaneous disintegration of unstable nuclei with the
   5-27  emission of nuclear particles or photons, including any
   5-28  nonradioactive reagent kit or nuclide generator that is intended to
   5-29  be used in the preparation of any such substance.
   5-30              (45) <(37)>  "Substitution" means the dispensing of a
   5-31  drug or a brand of drug other than that which is ordered or
   5-32  prescribed.
   5-33              (46) <(38)>  "Supportive personnel" means those
   5-34  individuals utilized in pharmacies whose responsibility it shall be
   5-35  to provide <nonjudgmental> technical services that do not require
   5-36  professional judgment concerned with the preparation and
   5-37  distribution of drugs under the direct supervision of and
   5-38  responsible to a pharmacist.
   5-39              (47) <(39)>  "Ultimate user" means a person who has
   5-40  obtained and possesses a prescription drug or device for the
   5-41  person's own use or for the use of a member of the person's
   5-42  household or for administering to an animal owned by the person or
   5-43  by a member of the person's household.
   5-44              (48) <(40)>  "Unit dose packaging" means the ordered
   5-45  amount of drug in a dosage form ready for administration to a
   5-46  particular patient, by the prescribed route at the prescribed time,
   5-47  and properly labeled with name, strength, and expiration date of
   5-48  the drug.
   5-49              <(41)  "Authorized agent" means an individual under the
   5-50  supervision of a practitioner, designated by the practitioner, and
   5-51  for whom the practitioner assumes legal responsibility, who
   5-52  communicates the practitioner's instructions to the pharmacist.>
   5-53        SECTION 2.  Section 16, Texas Pharmacy Act (Article 4542a-1,
   5-54  Vernon's Texas Civil Statutes), is amended to read as follows:
   5-55        Sec. 16.  Rules.  (a)  The board shall adopt, amend, and
   5-56  repeal rules for the proper administration and enforcement of this
   5-57  Act, consistent with this Act.  The rules shall be adopted,
   5-58  amended, or repealed in accordance with the Administrative
   5-59  Procedure Act.
   5-60              (b)  If the board determines it necessary in order to
   5-61  protect the health and welfare of the citizens of this state, it
   5-62  may make a rule concerning the operation of a licensed pharmacy
   5-63  located in this state also applicable to pharmacies licensed by the
   5-64  board that are located in another state.
   5-65              (c)  The board may not adopt rules restricting
   5-66  competitive bidding or advertising by a person regulated by the
   5-67  board except to prohibit false, misleading, or deceptive practices
   5-68  by the person.
   5-69        SECTION 3.  Subsections (a), (b) and (q), Section 17, Texas
   5-70  Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
    6-1  amended to read as follows:
    6-2        (a)  The board is responsible for the regulation of the
    6-3  practice of pharmacy in this state, including the following:
    6-4              (1)  the licensing by examination or by reciprocity of
    6-5  applicants who are qualified to engage in the practice of pharmacy
    6-6  and the licensing of pharmacies under this Act;
    6-7              (2)  the renewal of licenses to engage in the practice
    6-8  of pharmacy and licenses to operate pharmacies;
    6-9              (3)  the determination and issuance of standards for
   6-10  recognition and approval of degree requirements of colleges of
   6-11  pharmacy whose graduates shall be eligible for licensing in this
   6-12  state and the specification and enforcement of requirements for
   6-13  practical training, including internship;
   6-14              (4)  the enforcement of those provisions of this Act
   6-15  relating to the conduct or competence of pharmacists practicing in
   6-16  this state and the conduct of pharmacies operating in this state
   6-17  and the suspension, revocation, fining, reprimanding, cancellation,
   6-18  or restriction of licenses to engage in the practice of pharmacy or
   6-19  to operate a pharmacy;
   6-20              (5)  the determination of conditions under which a
   6-21  pharmacist may administer drugs and the training or education
   6-22  necessary for a pharmacist to administer drugs; the conditions
   6-23  shall be adopted by rule of the board based upon the advice of a
   6-24  five-member technical advisory committee to be appointed as
   6-25  follows:
   6-26                    (A)  one practicing hospital pharmacist appointed
   6-27  by the board;
   6-28                    (B)  one practicing home health pharmacist
   6-29  appointed by the board;
   6-30                    (C)  one practicing community pharmacist
   6-31  appointed by the board; and
   6-32                    (D)  two practicing registered nurses appointed
   6-33  by the Board of Nurse Examiners;
   6-34              (6)  the regulation of the training, qualifications,
   6-35  and employment of pharmacist-interns; and
   6-36              (7) <(6)>  the enforcement of this Act and any rules
   6-37  adopted under this Act.
   6-38        (b)  The board has the following responsibilities relating to
   6-39  the practice of pharmacy and to prescription drugs and devices used
   6-40  in this state in the diagnosis, mitigation, and treatment or
   6-41  prevention of injury, illness, and disease:
   6-42              (1)  regulation of the delivery or distribution of
   6-43  prescription drugs and devices, including the right to seize, after
   6-44  notice and hearing, any prescription drugs or devices posing a
   6-45  hazard to the public health and welfare, but the board may not
   6-46  regulate:
   6-47                    (A)  manufacturers' representatives or employees
   6-48  acting in the normal course of business;
   6-49                    (B)  persons engaged in the wholesale drug
   6-50  business and registered with the commissioner of health as provided
   6-51  by Chapter 431, Health and Safety Code; or
   6-52                    (C)  employees of persons engaged in the
   6-53  wholesale drug business and registered with the commissioner of
   6-54  health as provided by Chapter 431, Health and Safety Code, if the
   6-55  employees are acting in the normal course of business;
   6-56              (2)  specification of minimum standards for
   6-57  professional environment, technical equipment, and security in the
   6-58  prescription dispensing area;
   6-59              (3)  specification of minimum standards for drug
   6-60  storage, maintenance of prescription drug records, and procedures
   6-61  for the delivery, dispensing in a suitable container appropriately
   6-62  labeled, <or> providing of prescription drugs or devices,
   6-63  monitoring of drug therapy, and counseling of patients on proper
   6-64  use of prescription drugs and devices within the practice of
   6-65  pharmacy; and
   6-66              (4)  adoption of rules regulating a prescription drug
   6-67  order or medication order transmitted by electronic means <a
   6-68  facsimile or FAX machine>.
   6-69        (q)  Board investigative files and all information and
   6-70  materials compiled by the board in connection with an investigation
    7-1  are confidential and are not subject to disclosure under
    7-2  <considered open records for purposes of> Chapter 424, Acts of the
    7-3  63rd Legislature, Regular Session, 1973, as amended (Article
    7-4  6252-17a, Vernon's Texas Civil Statutes), and are not subject to
    7-5  disclosure, discovery, subpoena, or other means of legal compulsion
    7-6  for their release to anyone other than the board or its employees
    7-7  or agents involved in licensee discipline except that this
    7-8  information may be disclosed to:
    7-9              (1)  persons involved with the board in a disciplinary
   7-10  action against the licensee;
   7-11              (2)  pharmacist or pharmacy licensing or disciplinary
   7-12  authorities of other jurisdictions;
   7-13              (3)  a pharmaceutical peer review committee as outlined
   7-14  in Section 27A of this Act;
   7-15              (4)  law enforcement agencies; and
   7-16              (5)  persons engaged in bona fide research, if all
   7-17  individual-identifying information has been deleted.
   7-18        SECTION 4.  Subsection (c), Section 21, Texas Pharmacy Act
   7-19  (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
   7-20  read as follows:
   7-21        (c)  The examinations for licensing required under this
   7-22  section shall be given by the board at least two times during the
   7-23  fiscal year of the state.  The board shall determine the content
   7-24  and subject matter of each examination and determine which persons
   7-25  have successfully passed the examination.  An applicant who fails
   7-26  the examination may retake the examination two additional times.
   7-27  Before an applicant who has failed the examination three times is
   7-28  allowed to retake the examination, the applicant shall provide
   7-29  documentation from a college of pharmacy that additional college
   7-30  course work in subject areas the applicant failed in the
   7-31  examination has been successfully completed.  If a person who fails
   7-32  the licensing examination administered under this Act so requests
   7-33  in writing, the board shall furnish the person an analysis of his
   7-34  performance on the examination.
   7-35        SECTION 5.  Subsection (a), Section 26, Texas Pharmacy Act
   7-36  (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
   7-37  read as follows:
   7-38        (a)  Grounds for Disciplining a Holder of a Pharmacist
   7-39  License:  The board shall refuse to issue a pharmacist license for
   7-40  failure to meet the requirements of Section 21 or 22 of this Act.
   7-41  The board may in its discretion refuse to issue or renew a license
   7-42  or may fine, reprimand, revoke, restrict, cancel, retire, or
   7-43  suspend any license granted by the board<,> and may probate any
   7-44  license suspension if the board finds that the applicant or
   7-45  licensee has:
   7-46              (1)  violated any provision of this Act or any of the
   7-47  rules of the board adopted under this Act;
   7-48              (2)  engaged in unprofessional conduct as that term is
   7-49  defined by the rules of the board;
   7-50              (3)  engaged in gross immorality as that term is
   7-51  defined by the rules of the board;
   7-52              (4)  developed an incapacity of a nature that prevents
   7-53  a pharmacist or applicant from engaging in the practice of pharmacy
   7-54  with reasonable skill, competence, and safety to the public.  In
   7-55  enforcing this subdivision, the board shall, on probable cause,
   7-56  request a pharmacist or applicant to submit to a mental or physical
   7-57  examination by physicians or other health care professionals
   7-58  designated by the board.  If the pharmacist or applicant refuses to
   7-59  submit to the examination, the board shall issue an order requiring
   7-60  the pharmacist or applicant to show cause why he will not submit to
   7-61  the examination and shall schedule a hearing on the order within 30
   7-62  days after notice is served on the pharmacist or applicant.  The
   7-63  pharmacist or applicant shall be notified by either personal
   7-64  service or certified mail with return receipt requested.  At the
   7-65  hearing, the pharmacist or applicant and his attorney are entitled
   7-66  to present any testimony and other evidence to show why the
   7-67  pharmacist or applicant should not be required to submit to the
   7-68  examination.  After the hearing, the board shall issue an order
   7-69  either requiring the pharmacist or applicant to submit to the
   7-70  examination or withdrawing the request for examination;
    8-1              (5)  engaged in any fraud, deceit, or misrepresentation
    8-2  as those words are defined by the rules of the board in the
    8-3  practice of pharmacy or in seeking a license to act as a
    8-4  pharmacist;
    8-5              (6)  been convicted of a felony or a misdemeanor
    8-6  involving moral turpitude by a court of competent jurisdiction;
    8-7              (7)  a drug or alcohol dependency;
    8-8              (8)  failed to keep and maintain records required by
    8-9  this Act or failed to keep and maintain complete and accurate
   8-10  records of purchases and disposals of drugs listed in the
   8-11  Controlled Substances Act or the Dangerous Drug Act;
   8-12              (9)  violated any provision of the Controlled
   8-13  Substances Act or Dangerous Drug Act or a rule relating to those
   8-14  acts or any provision of Sections 485.031-485.035, Health and
   8-15  Safety Code, or a rule adopted under Section 485.011, Health and
   8-16  Safety Code;
   8-17              (10)  aided or abetted an unlicensed individual to
   8-18  engage in the practice of pharmacy if the pharmacist knew or
   8-19  reasonably should have known that the individual was unlicensed at
   8-20  the time;
   8-21              (11)  refused an entry into any pharmacy for any
   8-22  inspection authorized by this Act if the pharmacist had received
   8-23  notification from which the pharmacist knew or reasonably should
   8-24  have known that the attempted inspection was authorized;
   8-25              (12)  violated the pharmacy or drug laws or rules of
   8-26  this state or any other state or of the United States;
   8-27              (13)  been negligent in the practice of pharmacy;
   8-28              (14)  failed to submit to an examination after hearing
   8-29  and being ordered to do so by the board pursuant to Subdivision (4)
   8-30  of this subsection;
   8-31              (15)  dispensed prescription drugs while acting outside
   8-32  the usual course and scope of professional practice; or
   8-33              (16)  had a license to practice pharmacy issued by
   8-34  another state canceled, revoked, surrendered, or suspended for
   8-35  conduct substantially equivalent to conduct described in
   8-36  Subdivisions (1) through (15) of this subsection.  A certified copy
   8-37  of the record of the state taking action as set out above shall be
   8-38  conclusive evidence of the action taken by such state.
   8-39        SECTION 6.  Subsections (a) and (b), Section 26A, Texas
   8-40  Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
   8-41  amended to read as follows:
   8-42        (a)  On the entry of an initial order against an applicant
   8-43  for a license to practice pharmacy or a person licensed by the
   8-44  board to practice pharmacy, the board may refuse to issue a license
   8-45  to the applicant or suspend the person's license.  On the person's
   8-46  final conviction, the board may revoke the person's license.
   8-47        (b)  On the entry of an initial order against an applicant
   8-48  for a license for a pharmacy or a person who has been issued a
   8-49  license or renewal license for a pharmacy under this Act, or
   8-50  against a managing officer of the licensee or applicant if the
   8-51  licensee or applicant is an association, joint-stock company,
   8-52  partnership, or corporation, the board may refuse to issue the
   8-53  license or suspend the license.  On final conviction, the board may
   8-54  revoke the license.
   8-55        SECTION 7.  Subsection (a), Section 26B, Texas Pharmacy Act
   8-56  (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
   8-57  read as follows:
   8-58        (a)  The board may in its discretion refuse to issue or renew
   8-59  a license or may fine or reprimand any licensee or revoke,
   8-60  restrict, cancel, or suspend any license granted by the board, if
   8-61  the board finds that an applicant or licensee has:
   8-62              (1)  dispensed a drug, quantity, or strength of drug
   8-63  other than that which is ordered for the patient by a practitioner
   8-64  or labeled a prescription with incorrect directions for use;
   8-65              (2)  violated any of the following provisions of this
   8-66  Act:
   8-67                    (A)  Section 29(a), (b)(5), or (c)(5);
   8-68                    (B)  Section 30(i) or (j); or
   8-69                    (C)  Section 32(a);
   8-70              (3)  failed to comply with the following requirements
    9-1  unless compliance would violate the pharmacy or drug laws or rules
    9-2  in the state in which the pharmacy is located:
    9-3                    (A)  Section 481.074 or 481.075, Health and
    9-4  Safety Code;
    9-5                    (B)  Texas substitution requirements regarding:
    9-6                          (i)  the practitioner's directions relative
    9-7  to generic substitution;
    9-8                          (ii)  the patient's right to refuse generic
    9-9  substitution; or
   9-10                          (iii)  notification to the patient of the
   9-11  patient's right to refuse substitution; <or>
   9-12                    (C)  board rules relating to the provision of
   9-13  drug information to the patient or patient's agent in written form
   9-14  or by telephone; or
   9-15                    (D)  board rules adopted pursuant to Section
   9-16  16(a) of this Act and determined by the board to be applicable
   9-17  pursuant to Section 16(b) of this Act; or
   9-18              (4)  engaged in conduct which caused serious bodily
   9-19  injury to a Texas resident.
   9-20        SECTION 8.  Section 27A, Texas Pharmacy Act (Article 4542a-1,
   9-21  Vernon's Texas Civil Statutes), is amended by amending Subsection
   9-22  (d) and adding Subsection (j) to read as follows:
   9-23        (d)  The records and proceedings of the board, its authorized
   9-24  agents, or any pharmaceutical organization committee as set out in
   9-25  Subsections (a) and (b) of this section shall be confidential and
   9-26  are not considered open records for the purposes of Chapter 424,
   9-27  Acts of the 63rd Legislature, Regular Session, 1973, as amended
   9-28  (Article 6252-17a, Vernon's Texas Civil Statutes); provided,
   9-29  however, the board may disclose this confidential information only:
   9-30              (1)  in a disciplinary hearing before the board or in a
   9-31  subsequent trial or appeal of a board action or order;
   9-32              (2)  to the pharmacist licensing or disciplinary
   9-33  authorities of other jurisdictions; <or>
   9-34              (3)  pursuant to an order of a court of competent
   9-35  jurisdiction; or
   9-36              (4)  pursuant to Subsection (j) of this section.
   9-37        (j)  The board may disclose that the license of a pharmacist
   9-38  who is the subject of an order of the board deemed confidential by
   9-39  Subsection (d) of this section is suspended, revoked, canceled,
   9-40  restricted, or retired or that the pharmacist is in any manner
   9-41  otherwise limited in the practice of pharmacy; however, the board
   9-42  may not disclose the nature of the impairment or other information
   9-43  that resulted in such action.
   9-44        SECTION 9.  Subsection (b), Section 28, Texas Pharmacy Act
   9-45  (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
   9-46  read as follows:
   9-47        (b)  A person whose pharmacy license or license to practice
   9-48  pharmacy in this state has been canceled, revoked, or restricted
   9-49  under this Act, whether voluntarily or by action of the board, may,
   9-50  after 12 months from the effective date of the cancellation,
   9-51  revocation, or restriction, petition the board for reinstatement or
   9-52  removal of the restriction of the license.  The petition shall be
   9-53  in writing and in the form prescribed by the board.  On
   9-54  investigation and review of the petition <hearing>, the board may
   9-55  in its discretion grant or deny the petition or it may modify its
   9-56  original finding to reflect any circumstances that have changed
   9-57  sufficiently to warrant the modification.  If such petition is
   9-58  denied by the board, a subsequent petition may not be considered by
   9-59  the board until 12 months from the date of denial of the previous
   9-60  petition.  The board in its discretion may require such person to
   9-61  pass an examination or examinations for reentry into the practice
   9-62  of pharmacy.
   9-63        SECTION 10.  Subsection (a), Section 32, Texas Pharmacy Act
   9-64  (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
   9-65  read as follows:
   9-66        (a)  A pharmacy shall report in writing to the board not
   9-67  later than the 10th day after the date of the occurrence, unless
   9-68  immediate notification is required by this section, any of the
   9-69  following:
   9-70              (1)  permanent closing;
   10-1              (2)  change of ownership;
   10-2              (3)  change of location;
   10-3              (4)  change of pharmacist-in-charge;
   10-4              (5)  the theft or significant loss of any controlled
   10-5  substances, immediately on discovery of the theft or loss, by
   10-6  including with the notification to the board of the theft or loss a
   10-7  list of all controlled substances stolen or lost;
   10-8              (6)  the sale or transfer of controlled substances or
   10-9  dangerous drugs on the permanent closing or change of ownership of
  10-10  the pharmacy;
  10-11              (7)  any matters and occurrences that the board may
  10-12  require by rule;
  10-13              (8)  out-of-state purchases of controlled substances as
  10-14  determined by the board; <and>
  10-15              (9)  a disaster, accident, or emergency that may affect
  10-16  the strength, purity, or labeling of a drug, medication, device, or
  10-17  other material used in the diagnosis or the treatment of injury,
  10-18  illness, and disease, immediately on the occurrence of the
  10-19  disaster, accident, or emergency;
  10-20              (10)  <.  (9)> a final order against the holder of a
  10-21  Class E pharmacy license by the regulatory or licensing agency of
  10-22  the state in which the pharmacy is located; and
  10-23              (11) <(10)>  a final order against a pharmacist who is
  10-24  designated as the pharmacist-in-charge of a Class E pharmacy by the
  10-25  regulatory or licensing agency of the state in which the pharmacy
  10-26  is located.
  10-27        SECTION 11.  Section 40, Texas Pharmacy Act (Article 4542a-1,
  10-28  Vernon's Texas Civil Statutes), is amended by amending Subsections
  10-29  (d) through (k) to read as follows:
  10-30        (d)  With the patient's consent and notification to the
  10-31  practitioner, a pharmacist may dispense a dosage form of a drug
  10-32  product different from that prescribed, such as tablet instead of
  10-33  capsule or liquid instead of tablet, provided the dosage form so
  10-34  dispensed:
  10-35              (1)  contains the identical amount of the active
  10-36  ingredients as the dosage prescribed for the patient;
  10-37              (2)  is not an enteric coated or time release product;
  10-38  and
  10-39              (3)  does not alter desired clinical outcomes.
  10-40        (e)  Unless otherwise directed by the practitioner, the label
  10-41  on the dispensing container shall indicate the actual drug product
  10-42  dispensed, either (1)  the brand name, or if none (2)  the generic
  10-43  name, the strength, and the name of the manufacturer or
  10-44  distributor.  In instances where a drug product has been selected
  10-45  other than the one prescribed, the pharmacist shall place on the
  10-46  container the words "Substituted for brand prescribed" or
  10-47  "Substituted for 'brand name'" where "brand name" is the actual
  10-48  name of the brand name drug product prescribed.<"  The brand name
  10-49  of the prescribed drug shall not appear on the prescription
  10-50  container label unless it is the drug product actually dispensed.>
  10-51        (f) <(e)>  A pharmacist may not select a generically
  10-52  equivalent drug unless the generically equivalent drug selected
  10-53  costs the patient less than the prescribed drug product.  A
  10-54  pharmacist may not charge a higher professional fee for dispensing
  10-55  a generically equivalent drug product than the fee he or she
  10-56  customarily charges for dispensing the brand name product
  10-57  prescribed.
  10-58        (g)(1) <(f)>  A pharmacist who selects a generically
  10-59  equivalent drug product as authorized by this section shall:
  10-60                    (A) <(1)>  personally, or through his or her
  10-61  agent or employee and prior to delivery of a generically equivalent
  10-62  drug product, inform the patient or the patient's agent that a less
  10-63  expensive generically equivalent drug product has been substituted
  10-64  for the brand prescribed and the patient or patient's agent's right
  10-65  to refuse such substitution; or
  10-66                    (B) <(2)>  cause to be displayed, in a prominent
  10-67  place that is in clear public view where prescription drugs are
  10-68  dispensed, a sign in block letters not less than one inch in height
  10-69  that reads, in both English and Spanish:
  10-70        "TEXAS LAW ALLOWS A LESS EXPENSIVE GENERICALLY
   11-1        EQUIVALENT DRUG TO BE SUBSTITUTED FOR CERTAIN BRAND
   11-2        NAME DRUGS UNLESS YOUR PHYSICIAN DIRECTS OTHERWISE.
   11-3        YOU HAVE A RIGHT TO REFUSE SUCH SUBSTITUTION.  CONSULT
   11-4        YOUR PHYSICIAN OR PHARMACIST CONCERNING THE
   11-5        AVAILABILITY OF A SAFE, LESS EXPENSIVE DRUG FOR YOUR
   11-6        USE."
   11-7        Only one sign displayed in a pharmacy, as required above,
   11-8  shall be deemed compliance with this subsection.
   11-9              (2) <(3)>  A pharmacist complies with the requirements
  11-10  of this section if an employee or agent of the pharmacist notifies
  11-11  a purchaser as required by Paragraph (A) of Subdivision (1) of this
  11-12  subsection.  The patient or patient's agent shall have the right to
  11-13  refuse such product selection.
  11-14        (h) <(g)>  No written prescription issued by a practitioner,
  11-15  as such term is defined in Section 5(30)(A) of this Act, may be
  11-16  dispensed unless it is ordered on a form containing two signature
  11-17  lines of equal prominence, side by side, at the bottom of the form.
  11-18  Under either signature line shall be printed clearly the words
  11-19  "product selection permitted," and under the other signature line
  11-20  shall be printed clearly the words "dispense as written."  The
  11-21  practitioner shall communicate dispensing instructions to the
  11-22  pharmacist by signing on the appropriate line.  If the
  11-23  practitioner's signature does not clearly indicate that the
  11-24  prescription must be dispensed as written, generically equivalent
  11-25  drug selection is permitted.  No prescription form furnished a
  11-26  practitioner shall contain a preprinted order for a drug product by
  11-27  brand name, generic name, or manufacturer.
  11-28        (i) <(h)>  If a prescription is transmitted to a pharmacist
  11-29  orally, the pharmacist shall note any dispensing instructions by
  11-30  the practitioner or the practitioner's agent on the file copy of
  11-31  the prescription and retain the prescription for the period of time
  11-32  specified by law.  Properly authorized prescription refills shall
  11-33  follow the original dispensing instructions unless otherwise
  11-34  indicated by the practitioner or practitioner's agent.
  11-35        (j) <(i)>  A pharmacist shall record on the prescription form
  11-36  the name, strength, and manufacturer or distributor of any drug
  11-37  product dispensed as herein authorized.
  11-38        (k) <(j)>  A pharmacist who selects a generically equivalent
  11-39  drug to be dispensed pursuant to this section assumes the same
  11-40  responsibility for selecting the generically equivalent drug that
  11-41  he does in filling a prescription for a drug product prescribed by
  11-42  generic name.  There shall be no liability on the prescriber for an
  11-43  act or omission by a pharmacist in selecting, preparing, or
  11-44  dispensing a drug product pursuant to this section.
  11-45        (l) <(k)>  Drug product selection as authorized in this
  11-46  section shall not apply to enteric-coated tablets; controlled
  11-47  release products; injectable suspensions, other than antibiotics;
  11-48  suppositories containing active ingredients for which systemic
  11-49  absorption is necessary for therapeutic activity; and different
  11-50  delivery systems for aerosol or nebulizer drugs.  This subsection
  11-51  shall not apply to any drug product which is determined to be
  11-52  generically equivalent to the brand prescribed.
  11-53        SECTION 12.  The Texas Pharmacy Act (Article 4542a-1,
  11-54  Vernon's Texas Civil Statutes) is amended by adding Sections 40B
  11-55  and 40C to read as follows:
  11-56        Sec. 40B.  EMERGENCY REFILLS.  A pharmacist may exercise his
  11-57  professional judgment in refilling a prescription for a
  11-58  prescription drug, other than a controlled substance listed in
  11-59  Schedule II, without the authorization of the prescribing
  11-60  practitioner, provided:
  11-61              (1)  failure to refill the prescription might result in
  11-62  an interruption of a therapeutic regimen or create patient
  11-63  suffering;
  11-64              (2)  either:
  11-65                    (A)  a natural or manmade disaster has occurred
  11-66  which prohibits the pharmacist from being able to contact the
  11-67  practitioner; or
  11-68                    (B)  the pharmacist is unable to contact the
  11-69  practitioner after reasonable effort;
  11-70              (3)  the quantity of prescription drug dispensed does
   12-1  not exceed a 72-hour supply;
   12-2              (4)  the pharmacist informs the patient or the
   12-3  patient's agent at the time of dispensing that the refill is being
   12-4  provided without such authorization and that authorization of the
   12-5  practitioner is required for future refills; and
   12-6              (5)  the pharmacist informs the practitioner of the
   12-7  emergency refill at the earliest reasonable time.
   12-8        Sec. 40C.  RELEASE OF CONFIDENTIAL RECORDS.  Confidential
   12-9  records are privileged and may be released only to:
  12-10              (1)  the patient or the patient's agent;
  12-11              (2)  practitioners and other pharmacists when, in the
  12-12  pharmacist's professional judgment, such release is necessary to
  12-13  protect the patient's health and well-being;
  12-14              (3)  other persons, the board, or other state or
  12-15  federal agencies authorized by law to receive such confidential
  12-16  records;
  12-17              (4)  a law enforcement agency engaged in investigation
  12-18  of suspected violations of the Controlled Substances Act or the
  12-19  Dangerous Drug Act;
  12-20              (5)  a person employed by any state agency which
  12-21  licenses a practitioner as defined in this Act if such person is
  12-22  engaged in the performance of the person's official duties; or
  12-23              (6)  an insurance carrier or other third party payor
  12-24  authorized by a patient to receive such information.
  12-25        SECTION 13.  Subdivision (41), Section 481.002, Health and
  12-26  Safety Code, is amended to read as follows:
  12-27              (41)  "Prescription" means an order by a practitioner
  12-28  to a pharmacist for a controlled substance for a particular patient
  12-29  that specifies:
  12-30                    (A)  the date of issue;
  12-31                    (B)  the name and address of the patient or, if
  12-32  the controlled substance is prescribed for an animal, the species
  12-33  of the animal and the name and address of its owner;
  12-34                    (C)  the name and quantity of the controlled
  12-35  substance prescribed with the quantity shown numerically followed
  12-36  by the number written as a word if the order is written or, if the
  12-37  order is communicated orally or telephonically, with the quantity
  12-38  given by the practitioner and transcribed by the pharmacist
  12-39  numerically; <and>
  12-40                    (D)  directions for the use of the drug;
  12-41                    (E)  the intended use of the controlled substance
  12-42  or the diagnosis for which the controlled substance is prescribed;
  12-43  and
  12-44                    (F)  the name, address, Federal Drug Enforcement
  12-45  Administration registration number, and telephone number of the
  12-46  practitioner at the practitioner's usual place of business, legibly
  12-47  printed or stamped.
  12-48        SECTION 14.  Section 481.074, Health and Safety Code, is
  12-49  amended by amending Subsections (d) through (i) and adding
  12-50  Subsection (l) to read as follows:
  12-51        (d)  Except as specified in Subsections (e) and (f) of this
  12-52  section, a <A> person may not fill a prescription for a controlled
  12-53  substance listed in Schedule II after the end of the seventh day
  12-54  after the date on which the prescription is issued.  A person may
  12-55  not refill a prescription for a substance listed in Schedule II.
  12-56        (e)  The partial filling of a prescription for a controlled
  12-57  substance listed in Schedule II is permissible, if the pharmacist
  12-58  is unable to supply the full quantity called for in a written or
  12-59  emergency oral prescription and the pharmacist makes a notation of
  12-60  the quantity supplied on the face of the written prescription or
  12-61  written record of the emergency oral prescription.  The remaining
  12-62  portion of the prescription may be filled within 72 hours of the
  12-63  first partial filling; however, if the remaining portion is not or
  12-64  cannot be filled within the 72-hour period, the pharmacist shall so
  12-65  notify the prescribing individual practitioner.  No further
  12-66  quantity may be supplied beyond 72 hours without a new
  12-67  prescription.
  12-68        (f)  A prescription for a Schedule II controlled substance
  12-69  written for a patient in a long-term care facility (LTCF) or for a
  12-70  patient with a medical diagnosis documenting a terminal illness may
   13-1  be filled in partial quantities to include individual dosage units.
   13-2  If there is any question about whether a patient may be classified
   13-3  as having a terminal illness, the pharmacist must contact the
   13-4  practitioner prior to partially filling the prescription.  Both the
   13-5  pharmacist and the practitioner have a corresponding responsibility
   13-6  to assure that the controlled substance is for a terminally ill
   13-7  patient.  The pharmacist must record on the prescription whether
   13-8  the patient is "terminally ill" or an "LTCF patient."  A
   13-9  prescription that is partially filled and does not contain the
  13-10  notation "terminally ill" or "LTCF patient" shall be deemed to have
  13-11  been filled in violation of this Act.  For each partial filling,
  13-12  the dispensing pharmacist shall record on the back of Copy 1 and
  13-13  Copy 2 of the prescription the date of the partial filling, the
  13-14  quantity dispensed, the remaining quantity authorized to be
  13-15  dispensed, and the identification of the dispensing pharmacist.
  13-16  Prior to any subsequent partial filling the pharmacist is to
  13-17  determine that the additional partial filling is necessary.  The
  13-18  total quantity of Schedule II controlled substances dispensed in
  13-19  all partial fillings must not exceed the total quantity prescribed.
  13-20  Schedule II prescriptions for patients in a long-term care facility
  13-21  or patients with a medical diagnosis documenting a terminal illness
  13-22  shall be valid for a period not to exceed 30 days from the issue
  13-23  date unless sooner terminated by discontinuance of the medication.
  13-24        (g)  A person may not dispense a controlled substance in
  13-25  Schedule III or IV that is a prescription drug under the Federal
  13-26  Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.)
  13-27  without a written, oral, or telephonically communicated
  13-28  prescription of a practitioner defined by Section 481.002(39)(A),
  13-29  except that the practitioner may dispense the substance directly to
  13-30  an ultimate user.  A prescription for a controlled substance listed
  13-31  in Schedule III or IV may not be filled or refilled later than six
  13-32  months after the date on which the prescription is issued and may
  13-33  not be refilled more than five times, unless the prescription is
  13-34  renewed by the practitioner.
  13-35        (h) <(f)>  A pharmacist may dispense a controlled substance
  13-36  listed in Schedule III, IV, or V under an original written
  13-37  prescription issued by a practitioner defined by Section
  13-38  481.002(38)(C) and only if the pharmacist determines that the
  13-39  prescription was issued for a valid medical purpose and in the
  13-40  course of professional practice.  A prescription issued under this
  13-41  subsection may not be filled or refilled later than six months
  13-42  after the date the prescription is issued, and a prescription
  13-43  authorized to be refilled on the original prescription may not be
  13-44  refilled more than five times.
  13-45        (i) <(g)>  A person may not dispense a controlled substance
  13-46  listed in Section 481.036(1) or (2) without the prescription of a
  13-47  practitioner defined by Section 481.002(39)(A), except that a
  13-48  practitioner may dispense the substance directly to an ultimate
  13-49  user.  A prescription issued under this subsection may not be
  13-50  filled or refilled later than six months after the date the
  13-51  prescription is issued and may not be refilled more than five
  13-52  times, unless the prescription is renewed by the practitioner.
  13-53        (j) <(h)>  A practitioner or institutional practitioner may
  13-54  not allow a patient, on the patient's release from the hospital, to
  13-55  possess a controlled substance prescribed by the practitioner
  13-56  unless:
  13-57              (1)  the substance was dispensed under a medication
  13-58  order while the patient was admitted to the hospital;
  13-59              (2)  the substance is in a properly labeled container;
  13-60  and
  13-61              (3)  the patient possesses not more than a seven-day
  13-62  supply of the substance.
  13-63        (k) <(i)>  A prescription for a controlled substance must
  13-64  show:
  13-65              (1)  the quantity of the substance prescribed:
  13-66                    (A)  numerically, followed by the number written
  13-67  as a word, if the prescription is written; or
  13-68                    (B)  if the prescription is communicated orally
  13-69  or telephonically, as transcribed by the receiving pharmacist;
  13-70              (2)  the date of issue;
   14-1              (3)  the name and address of the patient or, if the
   14-2  controlled substance is prescribed for an animal, the species of
   14-3  the animal and the name and address of its owner;
   14-4              (4)  the name and strength of the controlled substance
   14-5  prescribed;
   14-6              (5)  the directions for use of the controlled
   14-7  substance; <and>
   14-8              (6)  the intended use of the controlled substance or
   14-9  the diagnosis for which the controlled substance is prescribed; and
  14-10              (7)  the name, address, <and> Federal Drug Enforcement
  14-11  Administration registration number, and telephone number of the
  14-12  practitioner at the practitioner's usual place of business, legibly
  14-13  printed or stamped.
  14-14        (l)  A pharmacist may exercise his professional judgment in
  14-15  refilling a prescription for a controlled substance in Schedule
  14-16  III, IV, or V without the authorization of the prescribing
  14-17  practitioner provided:
  14-18              (1)  failure to refill the prescription might result in
  14-19  an interruption of a therapeutic regimen or create patient
  14-20  suffering;
  14-21              (2)  either:
  14-22                    (A)  a natural or manmade disaster has occurred
  14-23  which prohibits the pharmacist from being able to contact the
  14-24  practitioner; or
  14-25                    (B)  the pharmacist is unable to contact the
  14-26  practitioner after reasonable effort;
  14-27              (3)  the quantity of prescription drug dispensed does
  14-28  not exceed a 72-hour supply;
  14-29              (4)  the pharmacist informs the patient or the
  14-30  patient's agent at the time of dispensing that the refill is being
  14-31  provided without such authorization and that authorization of the
  14-32  practitioner is required for future refills; and
  14-33              (5)  the pharmacist informs the practitioner of the
  14-34  emergency refill at the earliest reasonable time.
  14-35        SECTION 15.  Subsections (d), (e), and (f), Section 481.075,
  14-36  Health and Safety Code, are amended to read as follows:
  14-37        (d)  Except for oral prescriptions prescribed under Section
  14-38  481.074(b), the prescribing practitioner shall:
  14-39              (1)  legibly fill in, or direct a designated agent to
  14-40  legibly fill in, on all three copies of the form in the space
  14-41  provided:
  14-42                    (A)  the date the prescription is written;
  14-43                    (B)  the drug prescribed, the quantity (shown
  14-44  numerically followed by the number written as a word), <and>
  14-45  instructions for use, and the intended use of the drug or the
  14-46  diagnosis for which the controlled substance is prescribed; and
  14-47                    (C)  the name, address, and age of the patient
  14-48  or, in the case of an animal, its owner, for whom the controlled
  14-49  substance is prescribed;
  14-50              (2)  sign Copies 1 and 2 of the form and give them to
  14-51  the person authorized to receive the prescription; and
  14-52              (3)  retain Copy 3 of the form with the practitioner's
  14-53  records for at least two years after the date the prescription is
  14-54  written.
  14-55        (e)  In the case of an oral prescription prescribed under
  14-56  Section 481.074(b), the prescribing practitioner shall give the
  14-57  dispensing pharmacy the information needed to complete the form.
  14-58        (f)  Each dispensing pharmacist shall:
  14-59              (1)  fill in on Copies 1 and 2 of the form in the space
  14-60  provided the information not required to be filled in by the
  14-61  prescribing practitioner or the Department of Public Safety;
  14-62              (2)  indicate the total quantity dispensed on the face
  14-63  of the triplicate prescription form;
  14-64              (3)  retain Copy 2 with the records of the pharmacy for
  14-65  at least two years; and
  14-66              (4) <(3)>  sign Copy 1 and send it to the Department of
  14-67  Public Safety not later than the 30th day after the date the
  14-68  prescription is filled or not later than the 30th day after the
  14-69  completion of a prescription dispensed under Section 481.074(f).
  14-70        SECTION 16.  Subchapter A, Chapter 483, Health and Safety
   15-1  Code, is amended by adding Section 483.0001 and amending Section
   15-2  483.001 to read as follows:
   15-3        Sec. 483.0001.  SHORT TITLE.  This Act may be cited as the
   15-4  Texas Dangerous Drug Act.
   15-5        Sec. 483.001.  DEFINITIONS.  In this chapter:
   15-6              (1) <(2)>  "Board" means the Texas State Board of
   15-7  Pharmacy.
   15-8              (2) <(3)>  "Dangerous drug" means a device or a drug
   15-9  that is unsafe for self-medication and that is not included in
  15-10  Schedules I through V or Penalty Groups 1 through 4 of Chapter 481
  15-11  (Texas Controlled Substances Act).  The term includes a device or a
  15-12  drug that bears or is required to bear the legend:
  15-13                    (A)  Caution:  federal law prohibits dispensing
  15-14  without prescription; or
  15-15                    (B)  Caution:  federal law restricts this drug to
  15-16  use by or on the order of a licensed veterinarian.
  15-17              (3) <(4)>  "Deliver" means to sell, dispense, give
  15-18  away, or supply in any other manner.
  15-19              (4)  "Designated agent" means:
  15-20                    (A)  a licensed nurse, physician assistant,
  15-21  pharmacist, or other individual designated by a practitioner to
  15-22  communicate prescription drug orders to a pharmacist;
  15-23                    (B)  a licensed nurse, physician assistant, or
  15-24  pharmacist employed in a health care facility to whom the
  15-25  practitioner communicates a prescription drug order; or
  15-26                    (C)  a registered nurse or physician assistant
  15-27  authorized by a practitioner to carry out a prescription drug order
  15-28  for dangerous drugs under Section 3.06(d)(5), Medical Practice Act
  15-29  (Article 4495b, Vernon's Texas Civil Statutes).
  15-30              (5)  "Dispense" means to prepare, package, compound, or
  15-31  label a dangerous drug in the course of professional practice for
  15-32  delivery under the lawful order of a practitioner to an ultimate
  15-33  user or the user's agent.
  15-34              (6)  "Manufacturer" means a person, other than a
  15-35  pharmacist, who manufactures dangerous drugs.  The term includes a
  15-36  person who prepares dangerous drugs in dosage form by mixing,
  15-37  compounding, encapsulating, entableting, or any other process.
  15-38              (7)  "Patient" means:
  15-39                    (A)  an individual for whom a dangerous drug is
  15-40  prescribed or to whom a dangerous drug is administered; or
  15-41                    (B)  an owner or the agent of an owner of an
  15-42  animal for which a dangerous drug is prescribed or to which a
  15-43  dangerous drug is administered.
  15-44              (8)  "Person" includes an individual, corporation,
  15-45  partnership, and association.
  15-46              (9)  "Pharmacist" means a person licensed by the Texas
  15-47  State Board of Pharmacy to practice pharmacy.
  15-48              (10)  "Pharmacy" means a facility licensed by the board
  15-49  pursuant to Section 29, Texas Pharmacy Act (Article 4542a-1,
  15-50  Vernon's Texas Civil Statutes) <in which the practice of pharmacy
  15-51  occurs>.
  15-52              (11)  "Practice of pharmacy" means:
  15-53                    (A)  provision of those acts or services
  15-54  necessary to provide pharmaceutical care;
  15-55                    (B)  interpretation and evaluation of
  15-56  prescription drug orders or medication orders;
  15-57                    (C)  participation in drug and device selection
  15-58  as authorized by law, drug administration, drug regimen review, or
  15-59  drug or drug-related research;
  15-60                    (D)  provision of patient counseling; and
  15-61                    (E)  responsibility for:
  15-62                          (i)  dispensing of prescription drug orders
  15-63  or distribution of medication orders in the patient's best
  15-64  interest;
  15-65                          (ii)  compounding and labeling of drugs and
  15-66  devices, except labeling by a manufacturer, repackager, or
  15-67  distributor of nonprescription drugs and commercially packaged
  15-68  prescription drugs and devices;
  15-69                          (iii)  proper and safe storage of drugs and
  15-70  devices; and
   16-1                          (iv)  maintenance of proper records for
   16-2  drugs and devices <the interpretation and evaluation of
   16-3  prescription or medication orders, the dispensing and labeling of
   16-4  drugs or devices, the selection of drugs and the review of drug
   16-5  use, the storage of prescription drugs and devices and the
   16-6  maintenance of prescription drug records in a pharmacy, the giving
   16-7  of advice or consultation if necessary or required by law about the
   16-8  therapeutic value, content, hazard, or use of drugs or devices, or
   16-9  the offer to perform or the performance of the services and
  16-10  transactions necessary to operate a pharmacy>.  In this
  16-11  subdivision, "device" has the meaning assigned by the Texas
  16-12  Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes).
  16-13              (12)  "Practitioner" means a person licensed:
  16-14                    (A)  by the Texas State Board of Medical
  16-15  Examiners, State Board of Dental Examiners, Texas State Board of
  16-16  Podiatry Examiners, Texas Optometry Board, or State Board of
  16-17  Veterinary Medical Examiners to prescribe and administer dangerous
  16-18  drugs;
  16-19                    (B)  by another state in a health field in which,
  16-20  under the laws of this state, a licensee may legally prescribe
  16-21  dangerous drugs; or
  16-22                    (C)  in Canada or Mexico in a health field in
  16-23  which, under the laws of this state, a licensee may legally
  16-24  prescribe dangerous drugs.
  16-25              (13)  "Prescription" means an order from a
  16-26  practitioner, or an agent of the practitioner designated in writing
  16-27  as authorized to communicate prescriptions, or an order made in
  16-28  accordance with Section 3.06(d)(5), Medical Practice Act (Article
  16-29  4495b, Vernon's Texas Civil Statutes), to a pharmacist for a
  16-30  dangerous drug to be dispensed that states:
  16-31                    (A)  the date of the order's issue;
  16-32                    (B)  the name and address of the patient;
  16-33                    (C)  if the drug is prescribed for an animal, the
  16-34  species of the animal;
  16-35                    (D)  the name and quantity of the drug
  16-36  prescribed; <and>
  16-37                    (E)  the directions for the use of the drug;
  16-38                    (F)  the intended use of the drug or the
  16-39  diagnosis for which the drug is prescribed; and
  16-40                    (G)  the name, address, and telephone number of
  16-41  the practitioner at the practitioner's usual place of business,
  16-42  legibly printed or stamped.
  16-43              (14)  "Warehouseman" means a person who stores
  16-44  dangerous drugs for others and who has no control over the
  16-45  disposition of the drugs except for the purpose of storage.
  16-46              (15)  "Wholesaler" means a person engaged in the
  16-47  business of distributing dangerous drugs to a person listed in
  16-48  Sections 483.041(c)(1)-(6).
  16-49        SECTION 17.  Section 483.022, Health and Safety Code, is
  16-50  amended to read as follows:
  16-51        Sec. 483.022.  Practitioner's Designated Agent;
  16-52  Practitioner's Responsibilities.  (a)  A practitioner shall provide
  16-53  in writing the name of each<:>
  16-54              <(1)>  designated agent as defined by Section
  16-55  483.001(4)(A) and (C), and the name of each healthcare facility
  16-56  which employs persons defined by Section 483.001(4)(B) <authorized
  16-57  by the practitioner to communicate prescriptions for the
  16-58  practitioner; and>
  16-59              <(2)  registered nurse or physician assistant
  16-60  authorized to carry out a prescription drug order under Section
  16-61  3.06(d)(5), Medical Practice Act (Article 4495b, Vernon's Texas
  16-62  Civil Statutes)>.
  16-63        (b)  The practitioner shall maintain at the practitioner's
  16-64  usual place of business a list of the designated agents or
  16-65  healthcare facilities as defined by Section 483.001(4) <and a list
  16-66  of the designated registered nurses or physician assistants
  16-67  authorized to carry out a prescription drug order>.
  16-68        <(b)  The practitioner shall maintain at the practitioner's
  16-69  usual place of business a list of each designated agent, registered
  16-70  nurse, or physician assistant who is authorized to carry out a
   17-1  prescription drug order.>
   17-2        (c)  The practitioner shall provide a pharmacist with a copy
   17-3  of the practitioner's written authorization for a designated agent
   17-4  as defined by Section 483.001(4)<, registered nurse, or physician
   17-5  assistant> on the pharmacist's request.
   17-6        (d)  This section does not relieve a practitioner or the
   17-7  practitioner's designated agent from the requirements of Section
   17-8  40, Texas Pharmacy Act (Article 4542a-1, Vernon's Texas Civil
   17-9  Statutes).
  17-10        (e)  A practitioner remains personally responsible for the
  17-11  actions of a designated agent who communicates a prescription to a
  17-12  pharmacist.
  17-13        SECTION 18.  Subsection (d), Section 483.041, Health and
  17-14  Safety Code, is amended to read as follows:
  17-15        (d)  An offense under this section is a felony of the third
  17-16  degree <Class B misdemeanor unless it is shown on the trial of the
  17-17  defendant that the defendant has previously been convicted of an
  17-18  offense under this section, in which event the offense is a Class A
  17-19  misdemeanor>.
  17-20        SECTION 19.  Section 483.042, Health and Safety Code, is
  17-21  amended by amending Subsections (c) and (d) to read as follows:
  17-22        (c)  The labeling provisions of Subsection (a) do not apply
  17-23  when the dangerous drug is prescribed for administration to an
  17-24  ultimate user who is institutionalized.  The board shall adopt
  17-25  rules for the labeling of such drugs.
  17-26        (d)  Proof of an offer to sell a dangerous drug must be
  17-27  corroborated by a person other than the offeree or by evidence
  17-28  other than a statement by the offeree.
  17-29        (e) <(d)>  An offense under this section is a felony of the
  17-30  third degree.
  17-31        SECTION 20.  Section 483.047, Health and Safety Code, is
  17-32  amended to read as follows:
  17-33        Sec. 483.047.  Refilling Prescription Without Authorization.
  17-34  (a)  Except as authorized by Subsection (b), a <A> pharmacist
  17-35  commits an offense if the pharmacist refills a prescription unless:
  17-36              (1)  the prescription contains an authorization by the
  17-37  practitioner for the refilling of the prescription, and the
  17-38  pharmacist refills the prescription in the manner provided by the
  17-39  authorization; or
  17-40              (2)  at the time of refilling the prescription, the
  17-41  pharmacist is authorized to do so by the practitioner who issued
  17-42  the prescription.
  17-43        (b)  A pharmacist may exercise his professional judgment in
  17-44  refilling a prescription for a dangerous drug without the
  17-45  authorization of the prescribing practitioner provided:
  17-46              (1)  failure to refill the prescription might result in
  17-47  an interruption of a therapeutic regimen or create patient
  17-48  suffering;
  17-49              (2)  either:
  17-50                    (A)  a natural or manmade disaster has occurred
  17-51  which prohibits the pharmacist from being able to contact the
  17-52  practitioner; or
  17-53                    (B)  the pharmacist is unable to contact the
  17-54  practitioner after reasonable effort;
  17-55              (3)  the quantity of drug dispensed does not exceed a
  17-56  72-hour supply;
  17-57              (4)  the pharmacist informs the patient or the
  17-58  patient's agent at the time of dispensing that the refill is being
  17-59  provided without such authorization and that authorization of the
  17-60  practitioner is required for future refills; and
  17-61              (5)  the pharmacist informs the practitioner of the
  17-62  emergency refill at the earliest reasonable time.
  17-63        (c)  An offense under this section is a Class B misdemeanor
  17-64  unless it is shown on the trial of the defendant that the defendant
  17-65  has previously been convicted under this chapter, in which event
  17-66  the offense is a Class A misdemeanor.
  17-67        SECTION 21.  This Act takes effect September 1, 1993.
  17-68        SECTION 22.  (a)  A change in law made by this Act which
  17-69  applies to a criminal offense applies only to an offense committed
  17-70  on or after the effective date of this Act.  For purposes of this
   18-1  section, an offense is committed before the effective date of this
   18-2  Act if any element of the offense occurs before that date.
   18-3        (b)  A criminal offense committed before the effective date
   18-4  of this Act is covered by the law in effect when the offense was
   18-5  committed, and the former law is continued in effect for this
   18-6  purpose.
   18-7        SECTION 23.  The importance of this legislation and the
   18-8  crowded condition of the calendars in both houses create an
   18-9  emergency and an imperative public necessity that the
  18-10  constitutional rule requiring bills to be read on three several
  18-11  days in each house be suspended, and this rule is hereby suspended.
  18-12                               * * * * *
  18-13                                                         Austin,
  18-14  Texas
  18-15                                                         April 6, 1993
  18-16  Hon. Bob Bullock
  18-17  President of the Senate
  18-18  Sir:
  18-19  We, your Committee on Health and Human Services to which was
  18-20  referred S.B. No. 472, have had the same under consideration, and I
  18-21  am instructed to report it back to the Senate with the
  18-22  recommendation that it do not pass, but that the Committee
  18-23  Substitute adopted in lieu thereof do pass and be printed.
  18-24                                                         Zaffirini,
  18-25  Chair
  18-26                               * * * * *
  18-27                               WITNESSES
  18-28                                                  FOR   AGAINST  ON
  18-29  ___________________________________________________________________
  18-30  Name:  Michael Galt                                            x
  18-31  Representing:  Tx Society of Hosp Pharm
  18-32  City:  Houston
  18-33  -------------------------------------------------------------------
  18-34  Name:  Sarah Moody                                       x
  18-35  Representing:  Tx Nurses Assn
  18-36  City:  Austin
  18-37  -------------------------------------------------------------------
  18-38                                                  FOR   AGAINST  ON
  18-39  ___________________________________________________________________
  18-40  Name:  James Willmonn                                    x
  18-41  Representing:  Tx Nurses Assn
  18-42  City:  Austin
  18-43  -------------------------------------------------------------------
  18-44  Name:  Donna B. Rogers                           x
  18-45  Representing:  Tx Society of Hosp Pharmacist
  18-46  City:  San Antonio
  18-47  -------------------------------------------------------------------
  18-48  Name:  Pamela E. Ford                                    x
  18-49  Representing:  Intravenous Nurses Society
  18-50  City:  Cedar Hill
  18-51  -------------------------------------------------------------------