75R9495 PEP-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to laws regulating the distribution and dispensation of

 1-3     Schedule II controlled substances.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Subchapter C, Chapter 481, Health and Safety

 1-6     Code, may be cited as the Controlled Substance Accessibility and

 1-7     Anti-Diversion Act.

 1-8           SECTION 2.  Section 481.075, Health and Safety Code, is

 1-9     amended to read as follows:

1-10           Sec. 481.075.  REPORTING SCHEDULE II PRESCRIPTIONS.  (a)  A

1-11     pharmacist who dispenses a controlled substance listed in Schedule

1-12     II shall transmit to a central repository designated by the

1-13     department the following information:

1-14                 (1)  the date the controlled substance was dispensed;

1-15                 (2)  the National Drug Code number of the controlled

1-16     substance, if available, the quantity prescribed, the instructions

1-17     for use, and the intended use of the controlled substance or the

1-18     diagnosis for which it was prescribed;

1-19                 (3)  the quantity dispensed;

1-20                 (4)  the name, address, and Federal Drug Enforcement

1-21     Administration number of the dispensing pharmacy and the name of

1-22     the pharmacist who filled the prescription;

1-23                 (5)  the name, address, and age of the person for whom

1-24     the controlled substance was prescribed;

1-25                 (6)  if available, the driver's license or other

1-26     identification number of the person for whom the controlled

1-27     substance was prescribed or the person to whom the controlled

 2-1     substance was dispensed;

 2-2                 (7)  if the controlled substance was prescribed for use

 2-3     by an animal, the name, address, age, and driver's license or other

 2-4     identification number, if available, of the animal's owner;

 2-5                 (8)  the date the controlled substance was prescribed;

 2-6     and

 2-7                 (9)  the name, address, department registration number,

 2-8     and Federal Drug Enforcement Administration number of the

 2-9     practitioner who prescribed the controlled substance.

2-10           (b)  Except as provided by Subsection (c), the pharmacist

2-11     shall transmit the information required by Subsection (a):

2-12                 (1)  not later than the 15th day after the date the

2-13     controlled substance was dispensed; and

2-14                 (2)  on an electronic device compatible with the

2-15     receiving device of the central repository or by computer diskette,

2-16     magnetic tape, facsimile transmission, or pharmacy universal claim

2-17     form that meets applicable specifications stated in rules adopted

2-18     by the director.

2-19           (c)  A pharmacist who dispenses a Schedule II controlled

2-20     substance in partial quantities in accordance with Section

2-21     481.074(f) shall transmit the information required by Subsection

2-22     (a) not later than the 15th day after the date the pharmacist

2-23     completes dispensing the prescription.

2-24           (d)  The director shall control all access to information

2-25     submitted to the central repository under this section.  The

2-26     information is confidential and the director may not permit any

2-27     person to have access to the information except:

 3-1                 (1)  an investigator for the Texas State Board of

 3-2     Medical Examiners, the Texas State Board of Podiatry Examiners, the

 3-3     State Board of Dental Examiners, the State Board of Veterinary

 3-4     Medical Examiners, or the Texas State Board of Pharmacy;

 3-5                 (2)  an authorized officer of the department engaged in

 3-6     investigation of suspected criminal violations of this chapter who

 3-7     obtains access with the approval of an investigator covered by

 3-8     Subdivision (1); or

 3-9                 (3)  a person engaged in research, educational

3-10     activities, or demographic studies approved by the commissioner of

3-11     health, provided that the information is provided in a format that

3-12     does not reveal to the person the identities of prescribers or

3-13     recipients of Schedule II controlled substances.

3-14           (e)  An investigator covered by Subsection (d)(1) shall

3-15     cooperate with the authorized officers of the department in

3-16     obtaining information for investigations of suspected criminal

3-17     violations of this chapter.

3-18           (f)  Information submitted to the central repository under

3-19     this section may be used only for:

3-20                 (1)  drug-related criminal investigatory or evidentiary

3-21     purposes;

3-22                 (2)  investigatory or evidentiary purposes in

3-23     connection with the functions of an agency listed in Subsection

3-24     (d)(1); or

3-25                 (3)  research, educational activities, or demographic

3-26     studies approved by the commissioner of health.

3-27           (g)  The central repository must:

 4-1                 (1)  be capable of providing the collected information

 4-2     in formats required by the department, including dispensations by:

 4-3                       (A)  practioner name or registration number;

 4-4                       (B)  dispenser name or registration number;

 4-5                       (C)  recipient name or driver's license or other

 4-6     identification number;

 4-7                       (D)  type of controlled substance; or

 4-8                       (E)  date, frequency, quantity, or location of

 4-9     dispensation;

4-10                 (2)  provide the department with on-line access to the

4-11     collected information at all times;

4-12                 (3)  secure the collected information against access by

4-13     an unauthorized person; and

4-14                 (4)  if the relationship between the department and

4-15     central repository is terminated, provide the department in a

4-16     timely manner with all collected information in a format readily

4-17     usable by the department.

4-18           (h)  The department may:

4-19                 (1)  contract with a vendor to serve as or provide the

4-20     central repository; or

4-21                 (2)  purchase necessary equipment to create the central

4-22     repository within the department.

4-23           (i)  The department shall ensure that information that

4-24     reveals the identity of a recipient of a controlled substance is

4-25     removed from the central repository and destroyed so that the

4-26     information is irretrievable not later than the end of the 12th

4-27     calendar month after the month in which the information is

 5-1     submitted to the central repository.  Notwithstanding this

 5-2     subsection, the department may allow information that identifies a

 5-3     recipient to be retained until the end of the month in which the

 5-4     necessity for retention ends if the information is necessary for:

 5-5                 (1)  use in a specific ongoing investigation conducted

 5-6     in accordance with this section; or

 5-7                 (2)  research, educational activities, or demographic

 5-8     studies approved by the commissioner of health.

 5-9           (j)  The department shall issue a report semiannually, based

5-10     on the state fiscal year, to the Legislative Budget Board that

5-11     certifies compliance with Subsection (i) and that provides detailed

5-12     results of monthly audits showing that identities of recipients

5-13     have been removed from the central repository and made

5-14     irretrievable as required by Subsection (i).  The department shall

5-15     correct any failure to comply with Subsection (i) as soon as

5-16     practicable after discovery.  A person who is responsible for a

5-17     failure to comply with Subsection (i) is subject to disciplinary

5-18     action, including dismissal.

5-19           (k)  The director shall adopt rules to implement this

5-20     section.

5-21           (l)  In this section, "department" means the Department of

5-22     Public Safety.  [TRIPLICATE PRESCRIPTION PROGRAM.  (a)  A

5-23     practitioner who prescribes a controlled substance listed in

5-24     Schedule II shall record the prescription on a prescription form

5-25     that meets the requirements of Subsection (b).  The Department of

5-26     Public Safety shall issue the forms to practitioners for a fee

5-27     covering the actual cost of printing and processing the forms,

 6-1     mailing containers, and binders and the actual cost of mailing the

 6-2     forms at 100 forms a package.  Before delivering forms to a

 6-3     practitioner, the department shall print on the forms the

 6-4     practitioner's name, address, Department of Public Safety

 6-5     registration number, and Federal Drug Enforcement Administration

 6-6     number.  A person may not obtain the prescription forms unless the

 6-7     person is a practitioner or an institutional practitioner.]

 6-8           [(b)  Each prescription form used to prescribe a controlled

 6-9     substance must be serially numbered and in triplicate, with the

6-10     original copy labeled "Copy 1," the duplicate copy labeled "Copy

6-11     2," and the triplicate copy labeled "Copy 3." Each form must

6-12     contain spaces for:]

6-13                 [(1)  the date the prescription is written;]

6-14                 [(2)  the date the prescription is filled;]

6-15                 [(3)  the drug prescribed, the dosage, and instructions

6-16     for use;]

6-17                 [(4)  the name, address, and Federal Drug Enforcement

6-18     Administration number of the dispensing pharmacy and the name of

6-19     the pharmacist who fills the prescription; and]

6-20                 [(5)  the name, address, and age of the person for whom

6-21     the controlled substance is prescribed.]

6-22           [(c)  Not more than one prescription may be recorded on a

6-23     prescription form.]

6-24           [(d)  Except for oral prescriptions prescribed under Section

6-25     481.074(b), the prescribing practitioner shall:]

6-26                 [(1)  legibly fill in, or direct a designated agent to

6-27     legibly fill in, on all three copies of the form in the space

 7-1     provided:]

 7-2                       [(A)  the date the prescription is written;]

 7-3                       [(B)  the drug prescribed, the quantity (shown

 7-4     numerically followed by the number written as a word), instructions

 7-5     for use, and the intended use of the drug or the diagnosis for

 7-6     which the controlled substance is prescribed; and]

 7-7                       [(C)  the name, address, and age of the patient

 7-8     or, in the case of an animal, its owner, for whom the controlled

 7-9     substance is prescribed;]

7-10                 [(2)  sign Copies 1 and 2 of the form and give them to

7-11     the person authorized to receive the prescription; and]

7-12                 [(3)  retain Copy 3 of the form with the practitioner's

7-13     records for at least two years after the date the prescription is

7-14     written.]

7-15           [(e)  In the case of an oral prescription prescribed under

7-16     Section 481.074(b), the prescribing practitioner shall give the

7-17     dispensing pharmacy the information needed to complete the form.]

7-18           [(f)  Each dispensing pharmacist shall:]

7-19                 [(1)  fill in on Copies 1 and 2 of the form in the

7-20     space provided the information not required to be filled in by the

7-21     prescribing practitioner or the Department of Public Safety;]

7-22                 [(2)  indicate the total quantity dispensed on the face

7-23     of the triplicate prescription form;]

7-24                 [(3)  retain Copy 2 with the records of the pharmacy

7-25     for at least two years; and]

7-26                 [(4)  sign Copy 1 and send it to the Department of

7-27     Public Safety not later than the 30th day after the date the

 8-1     prescription is filled or not later than the 30th day after the

 8-2     completion of a prescription dispensed under Section 481.074(f).]

 8-3           [(g)  A medication order written for a patient who is

 8-4     admitted to a hospital at the time the medication order is written

 8-5     and filled is not required to be on a form that meets the

 8-6     requirements of this section.]

 8-7           [(h)  Not later than the seventh day after the date a

 8-8     practitioner's Department of Public Safety registration number,

 8-9     Federal Drug Enforcement Administration number, or license to

8-10     practice has been denied, suspended, canceled, surrendered, or

8-11     revoked, the practitioner shall return to the department all forms

8-12     in the practitioner's possession that are issued under Subsection

8-13     (a) and have not been used for prescriptions.]

8-14           [(i)  The director may adopt rules to implement this section

8-15     and Section 481.076.]

8-16           SECTION 3.  Section 481.068(b), Health and Safety Code, is

8-17     amended to read as follows:

8-18           (b)  Except as provided by Section [Sections] 481.074(b) [and

8-19     481.075(d)], a practitioner engaged in authorized medical practice

8-20     or research may not be required to furnish the name or identity of

8-21     a patient or research subject to the Department of Public Safety,

8-22     the director of the Texas Commission on Alcohol and Drug Abuse, or

8-23     any other agency, public official, or law enforcement officer.  A

8-24     practitioner may not be compelled in a state or local civil,

8-25     criminal, administrative, legislative, or other proceeding to

8-26     furnish the name or identity of an individual that the practitioner

8-27     is obligated to keep confidential.

 9-1           SECTION 4.  Sections 481.074(b), (c), and (f), Health and

 9-2     Safety Code, are amended to read as follows:

 9-3           (b)  Except in an emergency as defined by rule of the

 9-4     director [or as provided by Section 481.075(g)], a person may not

 9-5     dispense or administer a controlled substance listed in Schedule II

 9-6     without the written prescription of a practitioner [on a form] that

 9-7     provides any information from the practitioner necessary to enable

 9-8     the person to comply [meets the requirements of and is completed by

 9-9     the practitioner in accordance] with Section 481.075, and if the

9-10     controlled substance is to be dispensed, the practitioner must be

9-11     registered under Section 481.063.  In an emergency, a person may

9-12     dispense or administer a controlled substance listed in Schedule II

9-13     on the oral or telephonically communicated prescription of a

9-14     practitioner.  The person who administers or dispenses the

9-15     substance shall promptly write the oral or telephonically

9-16     communicated prescription and shall include in the written record

9-17     of the prescription [the name, address, and Federal Drug

9-18     Enforcement Administration number of the prescribing practitioner,]

9-19     all information required to be provided [by the practitioner] under

9-20     Section 481.075 [481.075(d), and all information required to be

9-21     provided by the dispensing pharmacist under Section 481.075(f).

9-22     The person shall send a copy of the written record to the

9-23     Department of Public Safety not later than the 30th day after the

9-24     date the prescription is filled].

9-25           (c)  Not later than 72 hours after authorizing an emergency

9-26     oral or telephonically communicated prescription, the prescribing

9-27     practitioner shall cause a written prescription[, completed in the

 10-1    manner required by Section 481.075,] to be delivered in person or

 10-2    mailed to the dispensing pharmacist at the pharmacy where the

 10-3    prescription was dispensed. The envelope of a prescription

 10-4    delivered by mail must be postmarked not later than 72 hours after

 10-5    the prescription was authorized.  On receipt of the prescription,

 10-6    the dispensing pharmacy shall file the transcription of the

 10-7    telephonically communicated prescription and the written

 10-8    prescription [pharmacy copy.  The pharmacist or the pharmacy that

 10-9    employs the pharmacist shall send to the Department of Public

10-10    Safety the department's copy not later than the 30th day after the

10-11    date the prescription was dispensed].

10-12          (f)  A prescription for a Schedule II controlled substance

10-13    written for a patient in a long-term care facility (LTCF) or for a

10-14    patient with a medical diagnosis documenting a terminal illness may

10-15    be filled in partial quantities to include individual dosage units.

10-16    If there is any question about whether a patient may be classified

10-17    as having a terminal illness, the pharmacist must contact the

10-18    practitioner prior to partially filling the prescription.  Both the

10-19    pharmacist and the practitioner have a corresponding responsibility

10-20    to assure that the controlled substance is for a terminally ill

10-21    patient.  The pharmacist must record on the prescription whether

10-22    the patient is "terminally ill" or an "LTCF patient."  A

10-23    prescription that is partially filled and does not contain the

10-24    notation "terminally ill" or "LTCF patient" shall be deemed to have

10-25    been filled in violation of this Act.  For each partial filling,

10-26    the dispensing pharmacist shall record on the back of [Copy 1 and

10-27    Copy 2 of] the prescription the date of the partial filling, the

 11-1    quantity dispensed, the remaining quantity authorized to be

 11-2    dispensed, and the identification of the dispensing pharmacist.

 11-3    Prior to any subsequent partial filling the pharmacist is to

 11-4    determine that the additional partial filling is necessary.  The

 11-5    total quantity of Schedule II controlled substances dispensed in

 11-6    all partial fillings must not exceed the total quantity prescribed.

 11-7    Schedule II prescriptions for patients in a long-term care facility

 11-8    or patients with a medical diagnosis documenting a terminal illness

 11-9    shall be valid for a period not to exceed 30 days from the issue

11-10    date unless sooner terminated by discontinuance of the medication.

11-11          SECTION 5.  Section 481.127(a), Health and Safety Code, is

11-12    amended to read as follows:

11-13          (a)  A person commits an offense if the person intentionally

11-14    or knowingly gives, permits, or obtains unauthorized access to

11-15    information submitted to the central repository [Department of

11-16    Public Safety] under Section 481.075.

11-17          SECTION 6.  Section 481.128(a), Health and Safety Code, is

11-18    amended to read as follows:

11-19          (a)  A registrant or dispenser commits an offense if the

11-20    registrant or dispenser knowingly or intentionally:

11-21                (1)  distributes, delivers, administers, or dispenses a

11-22    controlled substance in violation of Sections 481.070-481.074;

11-23                (2)  manufactures a controlled substance not authorized

11-24    by the person's registration or distributes or dispenses a

11-25    controlled substance not authorized by the person's registration to

11-26    another registrant or other person;

11-27                (3)  refuses or fails to make, keep, or furnish a

 12-1    record, report, notification, order form, statement, invoice, or

 12-2    information required by this chapter;

 12-3                (4)  [prints, manufactures, possesses, or produces a

 12-4    triplicate prescription form without the approval of the Department

 12-5    of Public Safety;]

 12-6                [(5)  delivers or possesses a counterfeit triplicate

 12-7    prescription;]

 12-8                [(6)]  refuses an entry into a premise for an

 12-9    inspection authorized by this chapter;

12-10                [(7)  refuses or fails to return a triplicate

12-11    prescription form as required by Section 481.075(h);] or

12-12                (5) [(8)]  refuses or fails to make, keep, or furnish a

12-13    record, report, notification, order form, statement, invoice, or

12-14    information required by a rule adopted before June 1, 1991, by the

12-15    director.

12-16          SECTION 7.  Section 481.129(a), Health and Safety Code, is

12-17    amended to read as follows:

12-18          (a)  A person commits an offense if the person knowingly or

12-19    intentionally:

12-20                (1)  distributes as a registrant or dispenser a

12-21    controlled substance listed in Schedule I or II, unless the person

12-22    distributes the controlled substance under an order form as

12-23    required by Section 481.069;

12-24                (2)  uses in the course of manufacturing, prescribing,

12-25    or distributing a controlled substance a registration number that

12-26    is fictitious, revoked, suspended, or issued to another person;

12-27                (3)  [uses a triplicate prescription form issued to

 13-1    another person to prescribe a controlled substance;]

 13-2                [(4)]  possesses or attempts to possess a controlled

 13-3    substance:

 13-4                      (A)  by misrepresentation, fraud, forgery,

 13-5    deception, or subterfuge;

 13-6                      (B)  through use of a fraudulent prescription

 13-7    form; or

 13-8                      (C)  through use of a fraudulent oral or

 13-9    telephonically communicated prescription; or

13-10                (4) [(5)]  furnishes false or fraudulent material

13-11    information in or omits material information from an application,

13-12    report, record, or other document required to be kept or filed

13-13    under this chapter.

13-14          SECTION 8.  Section 3.06(d)(6)(J)(i), Medical Practice Act

13-15    (Article 4495b, Vernon's Texas Civil Statutes), is amended to read

13-16    as follows:

13-17                            (i)  A physician may delegate to a

13-18    physician assistant providing [offering] obstetrical services [and

13-19    certified by the board as specializing in obstetrics] or an

13-20    advanced nurse practitioner recognized by the Texas State Board of

13-21    Nurse Examiners as a nurse midwife the act or acts of administering

13-22    or providing controlled substances to the nurse midwife's or

13-23    physician assistant's clients during intra-partum and immediate

13-24    post-partum care.  [The physician shall not delegate the use or

13-25    issuance of a triplicate prescription form under the triplicate

13-26    prescription program, Section 481.075, Health and Safety Code.]

13-27          SECTION 9.  Section 552.118, Government Code, is amended to

 14-1    read as follows:

 14-2          Sec. 552.118.  EXCEPTION:  CERTAIN PRESCRIPTIONS [TRIPLICATE

 14-3    PRESCRIPTION FORM].  Information relating to a prescription for a

 14-4    controlled substance submitted to the central repository under

 14-5    Section 481.075, Health and Safety Code, is excepted from the

 14-6    requirements of Section 552.021 [if it is information on or derived

 14-7    from a triplicate prescription form filed with the Department of

 14-8    Public Safety under Section 481.075, Health and Safety Code].

 14-9          SECTION 10.  The following provisions of the Health and

14-10    Safety Code are repealed:

14-11                (1)  Section 481.002(47); and

14-12                (2)  Section 481.076.

14-13          SECTION 11.  The change in law made by this Act does not

14-14    affect any retention, use, or destruction requirement of Section

14-15    481.075 or 481.076, Health and Safety Code, that relates to a

14-16    prescription written under the triplicate prescription program

14-17    before January 1, 1998.  A provision of those sections relating to

14-18    retention of a triplicate record by a practitioner or pharmacist or

14-19    the use or destruction of information obtained through the

14-20    triplicate prescription program by the Department of Public Safety

14-21    continues in effect for the purpose of governing the disposition of

14-22    any triplicate prescription record or information arising from a

14-23    triplicate prescription written before January 1, 1998.

14-24          SECTION 12.  A change in law made by this Act to Section

14-25    481.127(a), 481.128(a), or 481.129(a), Health and Safety Code,

14-26    applies only to an offense committed under any of those sections on

14-27    or after January 1, 1998.  An offense committed before January 1,

 15-1    1998,  is covered by the law in effect on the date the offense was

 15-2    committed, and the former law is continued in effect for this

 15-3    purpose.  For purposes of this section, an offense was committed

 15-4    before January 1, 1998, if any element of the offense occurred

 15-5    before that date.

 15-6          SECTION 13.  (a)  Except as provided by Subsection (b) of

 15-7    this section, this Act takes effect January 1, 1998.

 15-8          (b)  Beginning on the date this Act becomes law, the

 15-9    Department of Public Safety and its director may adopt rules and

15-10    take all action necessary to ensure that the central repository is

15-11    prepared to begin accepting information under Section 481.075,

15-12    Health and Safety Code, as amended by this Act, on January 1, 1998.

15-13          SECTION 14.  The importance of this legislation and the

15-14    crowded condition of the calendars in both houses create an

15-15    emergency and an imperative public necessity that the

15-16    constitutional rule requiring bills to be read on three several

15-17    days in each house be suspended, and this rule is hereby suspended,

15-18    and that this Act take effect and be in force according to its

15-19    terms, and it is so enacted.