By:  Madla                                             S.B. No. 609

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the regulation of pharmacies and pharmacists; providing

 1-2     a penalty.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 5, Texas Pharmacy Act (Article 4542a-1,

 1-5     Vernon's Texas Civil Statutes), is amended to read as follows:

 1-6           Sec. 5.  DEFINITIONS.   In this Act, unless the context of

 1-7     its use clearly indicates otherwise:

 1-8                 (1)  "A.C.P.E." means the American Council on

 1-9     Pharmaceutical Education.

1-10                 (2)  "Administer" means the direct application of a

1-11     prescription drug by injection, inhalation, ingestion, or any other

1-12     means to the body of a patient by:

1-13                       (A)  a practitioner, an authorized agent under

1-14     his supervision, or other person authorized by law; or

1-15                       (B)  the patient at the direction of a

1-16     practitioner.

1-17                 (3)  "Administrative Procedure Act" means Chapter 2001,

1-18     Government Code [the Administrative Procedure and Texas Register

1-19     Act, as amended (Article 6252-13a, Vernon's Texas Civil Statutes)].

1-20                 (4)  "Board" means the Texas State Board of Pharmacy.

1-21                 (5)  "Class A pharmacy license" or "community pharmacy

1-22     license" means a license issued to a pharmacy dispensing drugs or

1-23     devices to the general public pursuant to a prescription drug

 2-1     order.

 2-2                 (6)  "Class B pharmacy license" or "nuclear pharmacy

 2-3     license" means a license issued to a pharmacy dispensing or

 2-4     providing radioactive drugs or devices for administration to an

 2-5     ultimate user.

 2-6                 (7)  "Class C pharmacy license" or "institutional

 2-7     pharmacy license" means a license issued to a pharmacy located in a

 2-8     hospital or other in-patient facility that is licensed under

 2-9     Chapter 241, Health and Safety Code, or Chapter 6, Texas Mental

2-10     Health Code (Article 5547-1 et seq., Vernon's Texas Civil

2-11     Statutes), to a hospice in-patient facility that is licensed under

2-12     Chapter 142, Health and Safety Code, or to a pharmacy located in a

2-13     hospital maintained or operated by the state.

2-14                 (8)  "Class D pharmacy license" or "clinic pharmacy

2-15     license" means a license issued to a pharmacy dispensing a limited

2-16     type of drugs or devices pursuant to a prescription drug order.

2-17                 (9)  "Class E pharmacy license" or "nonresident

2-18     pharmacy license" means a license issued under this Act to a

2-19     pharmacy located in a state of the United States other than this

2-20     state whose primary business is to dispense a prescription drug or

2-21     device under a prescription drug order and to deliver the drug or

2-22     device to a patient, including a patient in this state, by the

2-23     United States mail, a common carrier, or a delivery service.

2-24                 (10) [(11)]  "College of pharmacy" means a school,

2-25     university, or college of pharmacy that satisfies the accreditation

 3-1     standards of A.C.P.E. as adopted by the board; or that has degree

 3-2     requirements which meet the standards of accreditation set by the

 3-3     board.

 3-4                 (11) [(12)]  "Compounding" means the preparation,

 3-5     mixing, assembling, packaging, or labeling of a drug or device:

 3-6                       (A)  as the result of a practitioner's

 3-7     prescription drug order or initiative based on the

 3-8     practitioner-patient-pharmacist relationship in the course of

 3-9     professional practice;

3-10                       (B)  in anticipation of prescription drug orders

3-11     based on routine, regularly observed prescribing patterns; or

3-12                       (C)  for the purpose of or as an incident to

3-13     research, teaching, or chemical analysis and not for sale or

3-14     dispensing.

3-15                 (12) [(13)]  "Confidential record" means any

3-16     health-related record that contains information that identifies an

3-17     individual and that is maintained by a pharmacy or pharmacist such

3-18     as a patient medication record, prescription drug order, or

3-19     medication order.

3-20                 (13) [(14)]  "Controlled substance" means a drug,

3-21     immediate precursor, or other substance listed in Schedules I-V or

3-22     Penalty Groups 1-4 of Chapter 481, Health and Safety Code, or a

3-23     drug, immediate precursor, or other substance included in Schedule

3-24     I, II, III, IV, or V of the Federal Comprehensive Drug Abuse

3-25     Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.).

 4-1                 (14) [(15)]  "Controlled Substances Act" means Chapter

 4-2     481, Health and Safety Code, or the Federal Comprehensive Drug

 4-3     Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et

 4-4     seq.).

 4-5                 (15) [(16)]  "Dangerous drug" means any drug or device

 4-6     that is not included in Penalty Groups 1-4 of the Controlled

 4-7     Substances Act and that is unsafe for self-medication or any drug

 4-8     or device that bears or is required to bear the legend:

 4-9                       (A)  "Caution:  federal law prohibits dispensing

4-10     without prescription"; or

4-11                       (B)  "Caution:  federal law restricts this drug

4-12     to use by or on the order of a licensed veterinarian."

4-13                 (16) [(17)]  "Dangerous Drug Act" means Chapter 483,

4-14     Health and Safety Code.

4-15                 (17) [(18)]  "Deliver" or "delivery" means the actual,

4-16     constructive, or attempted transfer of a prescription drug or

4-17     device or controlled substance from one person to another, whether

4-18     or not for a consideration.

4-19                 (18) [(19)]  "Designated agent" means:

4-20                       (A)  a licensed nurse, physician assistant,

4-21     pharmacist, or other individual designated by a practitioner, and

4-22     for whom the practitioner assumes legal responsibility, who

4-23     communicates prescription drug orders to a pharmacist;

4-24                       (B)  a licensed nurse, physician assistant, or

4-25     pharmacist employed in a health care facility to whom the

 5-1     practitioner communicates a prescription drug order; or

 5-2                       (C)  a registered nurse or physician assistant

 5-3     authorized by a practitioner to carry out a prescription drug order

 5-4     for dangerous drugs under Subdivision (5) or (6), Subsection (d),

 5-5     Section 3.06, Medical Practice Act (Article 4495b, Vernon's Texas

 5-6     Civil Statutes).

 5-7                 (19) [(20)]  "Device" means an instrument, apparatus,

 5-8     implement, machine, contrivance, implant, in vitro reagent, or

 5-9     other similar or related article, including any component part or

5-10     accessory, that is required under federal or state law to be

5-11     ordered or prescribed by a practitioner.

5-12                 (20) [(21)]  "Dispense" means preparing, packaging,

5-13     compounding, or labeling for delivery a prescription drug or device

5-14     in the course of professional practice to an ultimate user or his

5-15     agent by or pursuant to the lawful order of a practitioner.

5-16                 (21) [(22)]  "Distribute" means the delivery of a

5-17     prescription drug or device other than by administering or

5-18     dispensing.

5-19                 (22) [(23)]  "Drug" means:

5-20                       (A)  a substance recognized as drugs in the

5-21     current official United States Pharmacopoeia, official National

5-22     Formulary, official Homeopathic Pharmacopoeia, or other drug

5-23     compendium or any supplement to any of them;

5-24                       (B)  a substance intended for use in the

5-25     diagnosis, cure, mitigation, treatment, or prevention of disease in

 6-1     man or other animals;

 6-2                       (C)  a substance, other than food, intended to

 6-3     affect the structure or any function of the body of man or other

 6-4     animals;

 6-5                       (D)  a substance intended for use as a component

 6-6     of any articles specified in Paragraph (A), (B), or (C) of this

 6-7     subdivision;

 6-8                       (E)  a dangerous drug; or

 6-9                       (F)  a controlled substance.

6-10                 (23) [(24)]  "Drug regimen review" includes the

6-11     following activities:

6-12                       (A)  evaluation of prescription drug or

6-13     medication orders and patient medication records for:

6-14                             (i)  known allergies;

6-15                             (ii)  rational therapy-contraindications;

6-16                             (iii)  reasonable dose and route of

6-17     administration; and

6-18                             (iv)  reasonable directions for use;

6-19                       (B)  evaluation of prescription drug or

6-20     medication orders and patient medication records for duplication of

6-21     therapy;

6-22                       (C)  evaluation of prescription drug or

6-23     medication orders and patient medication records for:

6-24                             (i)  drug-drug interactions;

6-25                             (ii)  drug-food interactions;

 7-1                             (iii)  drug-disease interactions;

 7-2                             (iv)  adverse drug reactions; and

 7-3                       (D)  evaluation of prescription drug and

 7-4     medication orders and patient medication records for proper

 7-5     utilization, including overutilization or underutilization.

 7-6                 (24) [(25)]  "Internship" means a practical experience

 7-7     program that is approved by the board.

 7-8                 (25) [(26)]  "Label" means written, printed, or graphic

 7-9     matter on the immediate container of a drug or device.

7-10                 (26) [(27)]  "Labeling" means the process of affixing a

7-11     label including all information required by federal and state law

7-12     or regulation to any drug or device container.  The term does not

7-13     include the labeling by a manufacturer, packer, or distributor of a

7-14     nonprescription drug or commercially packaged prescription drug or

7-15     device, or unit dose packaging.

7-16                 (27) [(28)]  "Manufacturing" means the production,

7-17     preparation, propagation, conversion, or processing of a drug or

7-18     device, either directly or indirectly, by extraction from

7-19     substances of natural origin or independently by means of chemical

7-20     or biological synthesis and includes any packaging or repackaging

7-21     of the substances or labeling or relabeling of the container and

7-22     the promotion and marketing of such drugs or devices.

7-23     Manufacturing also includes the preparation and promotion of

7-24     commercially available products from bulk compounds for resale by

7-25     pharmacies, practitioners, or other persons but does not include

 8-1     compounding.

 8-2                 (28) [(29)]  "Medication order" means an order from a

 8-3     practitioner or a practitioner's designated agent for

 8-4     administration of a drug or device.

 8-5                 (29) [(30)]  "Nonprescription drug" means a nonnarcotic

 8-6     drug or device that may be sold without a prescription and that is

 8-7     labeled and packaged in compliance with applicable state or federal

 8-8     law.

 8-9                 (30) [(31)]  "Patient counseling" means the

8-10     communication by the pharmacist of information, as specified in the

8-11     rules of the board, to the patient or caregiver, in order to

8-12     improve therapy by ensuring proper use of drugs and devices.

8-13                 (31) [(32)]  "Person" means an individual, corporation,

8-14     government or governmental subdivision or agency, business trust,

8-15     estate, trust, partnership, association, or any other legal entity.

8-16                 (32) [(33)]  "Pharmaceutical care" is the provision of

8-17     drug therapy and other pharmaceutical services defined in the rules

8-18     of the board and intended to assist in the cure or prevention of a

8-19     disease, elimination or reduction of a patient's symptoms, or

8-20     arresting or slowing of a disease process.

8-21                 (33) [(34)]  "Pharmacist" means a person licensed by

8-22     the board to practice pharmacy.

8-23                 (34) [(35)]  "Pharmacist-in-charge" means the

8-24     pharmacist designated on a pharmacy license as the pharmacist who

8-25     has the authority or responsibility for a pharmacy's compliance

 9-1     with laws and rules pertaining to the practice of pharmacy.

 9-2                 (35) [(36)]  "Pharmacist-intern" means an undergraduate

 9-3     student enrolled in the professional sequence of a college of

 9-4     pharmacy approved by the board and participating in a school-based,

 9-5     board-approved internship program or a graduate of a college of

 9-6     pharmacy who is participating in a board-approved internship.

 9-7                 (36) [(37)]  "Pharmacy" means a facility at which

 9-8     prescription drug or medication orders are received, processed, or

 9-9     dispensed under this Act, the Dangerous Drug Act, or the Controlled

9-10     Substances Act [licensed by the board pursuant to Section 29 of

9-11     this Act].

9-12                 (37)  "Pharmacy technician" means an individual

9-13     employed by a pharmacy whose responsibility is to provide technical

9-14     services that do not require professional judgment regarding the

9-15     preparation and distribution of drugs and who works under the

9-16     direct supervision of and is responsible to a pharmacist.

9-17                 (38)  "Practice of pharmacy" means:

9-18                       (A)  provision of those acts or services

9-19     necessary to provide pharmaceutical care;

9-20                       (B)  interpretation and evaluation of

9-21     prescription drug orders or medication orders;

9-22                       (C)  participation in drug and device selection

9-23     as authorized by law, drug administration, drug regimen review, or

9-24     drug or drug-related research;

9-25                       (D)  provision of patient counseling;

 10-1                      (E)  responsibility for:

 10-2                            (i)  dispensing of prescription drug orders

 10-3    or distribution of medication orders;

 10-4                            (ii)  compounding and labeling of drugs and

 10-5    devices, except labeling by a manufacturer, repackager, or

 10-6    distributor of nonprescription drugs and commercially packaged

 10-7    prescription drugs and devices;

 10-8                            (iii)  proper and safe storage of drugs and

 10-9    devices; or

10-10                            (iv)  maintenance of proper records for

10-11    drugs and devices; and

10-12                      (F)  performance of a specific act of drug

10-13    therapy management for a patient delegated to a pharmacist by a

10-14    written protocol from a physician licensed in this state in

10-15    compliance with the Medical Practice Act (Article 4495b, Vernon's

10-16    Texas Civil Statutes).

10-17                (39)  "Practitioner" means:

10-18                      (A)  a physician, dentist, podiatrist,

10-19    veterinarian, or other person licensed or registered to prescribe,

10-20    distribute, administer, or dispense a prescription drug or device

10-21    in the course of professional practice in this state;

10-22                      (B)  a person licensed by another state in a

10-23    health field in which, under Texas law, licensees in this state may

10-24    legally prescribe dangerous drugs or a person practicing in another

10-25    state and licensed by another state as a physician, dentist,

 11-1    veterinarian, or podiatrist, having a current Federal Drug

 11-2    Enforcement Administration registration number, and who may legally

 11-3    prescribe Schedule II, III, IV, or V controlled substances in such

 11-4    other state; or

 11-5                      (C)  a person licensed in the Dominion of Canada

 11-6    or the United Mexican States in a health field in which, under the

 11-7    laws of this state, a licensee may legally prescribe dangerous

 11-8    drugs.  "Practitioner" does not include a person licensed under

 11-9    this Act.

11-10                (40)  "Preceptor" means a pharmacist [in good standing]

11-11    licensed in this state to practice pharmacy who meets the preceptor

11-12    requirements specified by rule and who is certified by the board to

11-13    supervise and be responsible for the activities and functions of a

11-14    pharmacist-intern in the internship program.

11-15                (41)  "Prescription drug" means:

11-16                      (A)  a substance for which federal or state law

11-17    requires a prescription before it may be legally dispensed to the

11-18    public;

11-19                      (B)  a drug or device that under federal law is

11-20    required, prior to being dispensed or delivered, to be labeled with

11-21    either of the following statements:

11-22                            (i)  "Caution:  federal law prohibits

11-23    dispensing without prescription"; or

11-24                            (ii)  "Caution:  federal law restricts this

11-25    drug to use by or on the order of a licensed veterinarian"; or

 12-1                      (C)  a drug or device that is required by any

 12-2    applicable federal or state law or regulation to be dispensed on

 12-3    prescription only or is restricted to use by a practitioner only.

 12-4                (42)  "Prescription drug order" means:

 12-5                      (A)  an order from a practitioner or a

 12-6    practitioner's designated agent to a pharmacist for a drug or

 12-7    device to be dispensed; or

 12-8                      (B)  an order pursuant to Subdivision (5) or (6),

 12-9    Subsection (d), Section 3.06, Medical Practice Act (Article 4495b,

12-10    Vernon's Texas Civil Statutes).

12-11                (43)  "Prospective drug use review" means a review of

12-12    the patient's drug therapy and prescription drug order or

12-13    medication order, as defined in the rules of the board, prior to

12-14    dispensing or distributing the drug.

12-15                (44)  "Provide" means to supply one or more unit doses

12-16    of a nonprescription drug or dangerous drug to a patient.

12-17                (45)  "Radioactive drug" means a drug that exhibits

12-18    spontaneous disintegration of unstable nuclei with the emission of

12-19    nuclear particles or photons, including any nonradioactive reagent

12-20    kit or nuclide generator that is intended to be used in the

12-21    preparation of any such substance.

12-22                (46)  "Substitution" means the dispensing of a drug or

12-23    a brand of drug other than that which is ordered or prescribed.

12-24                (47)  "Texas trade association" means a nonprofit,

12-25    cooperative association of business or professional competitors in

 13-1    this state whose purpose is to assist its members, industry, or

 13-2    profession and whose members have joined voluntarily. ["Supportive

 13-3    personnel" means those individuals utilized in pharmacies whose

 13-4    responsibility it shall be to provide technical services that do

 13-5    not require professional judgment concerned with the preparation

 13-6    and distribution of drugs under the direct supervision of and

 13-7    responsible to a pharmacist.]

 13-8                (48)  "Ultimate user" means a person who has obtained

 13-9    and possesses a prescription drug or device for the person's own

13-10    use or for the use of a member of the person's household or for

13-11    administering to an animal owned by the person or by a member of

13-12    the person's household.

13-13                (49)  "Unit dose packaging" means the ordered amount of

13-14    drug in a dosage form ready for administration to a particular

13-15    patient, by the prescribed route at the prescribed time, and

13-16    properly labeled with name, strength, and expiration date of the

13-17    drug.

13-18                (50)  "Written protocol" means a physician's order,

13-19    standing medical order, standing delegation order, or other order

13-20    or protocol as defined by rule of the Texas State Board of Medical

13-21    Examiners under the Medical Practice Act (Article 4495b, Vernon's

13-22    Texas Civil Statutes).

13-23          SECTION 2.  Subsection (a), Section 8, Texas Pharmacy Act

13-24    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

13-25    read as follows:

 14-1          (a)  A licensed pharmacist member of the board:

 14-2                (1)  may not be:

 14-3                      (A)  a salaried faculty member at a college of

 14-4    pharmacy; or

 14-5                      (B)  an officer, employee, or paid consultant of

 14-6    a Texas trade association in the field of health care or a spouse

 14-7    of an officer, employee, or paid consultant; and

 14-8                (2)  must at the time of his appointment:

 14-9                      (A) [(1)]  be a resident of this state;

14-10                      (B) [(2)]  be licensed for the five years

14-11    immediately preceding appointment and be in good standing to engage

14-12    in the practice of pharmacy in this state; and

14-13                      (C) [(3)]  be engaged in the practice of pharmacy

14-14    in this state.

14-15          SECTION 3.  Section 8, Texas Pharmacy Act (Article 4542a-1,

14-16    Vernon's Texas Civil Statutes), is amended by adding Subsection (f)

14-17    to read as follows:

14-18          (f)  The board shall provide to its members, as often as

14-19    necessary, information regarding their qualifications for office or

14-20    employment under this Act and their responsibilities under

14-21    applicable laws relating to standards of conduct for state officers

14-22    or employees.

14-23          SECTION 4.  Subsection (c), Section 14, Texas Pharmacy Act

14-24    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

14-25    read as follows:

 15-1          (c)  Except as otherwise provided by this subsection, all

 15-2    board meetings and hearings shall be open to the public.  The board

 15-3    may, in its discretion and in accordance with the open meetings

 15-4    law, Chapter 551, Government Code, [Chapter 271, Acts of the 60th

 15-5    Legislature, Regular Session, 1967, as amended (Article 6252-17,

 15-6    Vernon's Texas Civil Statutes),] conduct any portion of its meeting

 15-7    in executive session.  The board may in its discretion conduct

 15-8    deliberations relative to licensee disciplinary actions in

 15-9    executive session.  At the conclusion of its deliberations relative

15-10    to licensee disciplinary action, the board shall vote and announce

15-11    its decision relative to the licensee in open session.  The board

15-12    in executive session may conduct disciplinary hearings relating to

15-13    a pharmacist or pharmacy student who is impaired because of

15-14    chemical abuse or mental or physical illness.

15-15          SECTION 5.  Subsections (c), (d), and (f), Section 15, Texas

15-16    Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are

15-17    amended to read as follows:

15-18          (c)  An officer, employee, or paid consultant of a Texas

15-19    trade association in the field of health care may not be an [a

15-20    member or] employee of the board who is exempt from the state's

15-21    position classification plan or is compensated at or above the

15-22    amount prescribed by the General Appropriations Act for step 1,

15-23    salary group 17, of the position classification salary schedule.

15-24          (d)  A person who is the spouse of an officer, manager, or

15-25    paid consultant of a Texas trade association in the field of health

 16-1    care may not be a [board member and may not be a] board employee

 16-2    who is exempt from the state's position classification plan or is

 16-3    compensated at or above the amount prescribed by the General

 16-4    Appropriations Act for step 1, salary group 17, of the position

 16-5    classification salary schedule.

 16-6          (f)  The board shall provide to its [members and] employees,

 16-7    as often as necessary, information regarding their qualification

 16-8    for office or employment under this Act and their responsibilities

 16-9    under applicable laws relating to standards of conduct for state

16-10    officers or employees.

16-11          SECTION 6.  Subsections (o) and (q), Section 17, Texas

16-12    Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are

16-13    amended to read as follows:

16-14          (o)  The board:

16-15                (1)  shall [may] establish rules for the use of

16-16    pharmacy technicians [supportive personnel] and the duties of those

16-17    technicians [personnel] in pharmacies licensed by the board,

16-18    provided that those technicians [personnel] are responsible to and

16-19    directly supervised by a pharmacist licensed by the board; provided

16-20    however that the board may not adopt rules or regulations

16-21    establishing ratios of pharmacists to pharmacy technicians

16-22    [supportive personnel] in Class C pharmacies; and

16-23                (2)  may determine and issue standards for recognition

16-24    and approval of training programs for pharmacy technicians and

16-25    maintain a list of training programs that meet the standards.

 17-1          (q)  Board investigative files and all information and

 17-2    materials compiled by the board in connection with an investigation

 17-3    are confidential and are not subject to disclosure under Chapter

 17-4    552, Government Code [424, Acts of the 63rd Legislature, Regular

 17-5    Session, 1973, as amended (Article 6252-17a, Vernon's Texas Civil

 17-6    Statutes)], and are not subject to disclosure, discovery, subpoena,

 17-7    or other means of legal compulsion for their release to anyone

 17-8    other than the board or its employees or agents involved in

 17-9    licensee discipline except that this information may be disclosed

17-10    to:

17-11                (1)  persons involved with the board in a disciplinary

17-12    action against the licensee;

17-13                (2)  pharmacist or pharmacy licensing or disciplinary

17-14    authorities of other jurisdictions;

17-15                (3)  a pharmaceutical peer review committee as outlined

17-16    in Section 27A of this Act;

17-17                (4)  law enforcement agencies; and

17-18                (5)  persons engaged in bona fide research, if all

17-19    individual-identifying information has been deleted.

17-20          SECTION 7.  Subsection (a), Section 17D, Texas Pharmacy Act

17-21    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

17-22    read as follows:

17-23          (a)  The board by rule shall adopt procedures governing:

17-24                (1)  informal disposition of a contested case under

17-25    Chapter 2001, Government Code [Section 13(e), Administrative

 18-1    Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas

 18-2    Civil Statutes), and its subsequent amendments]; and

 18-3                (2)  informal proceedings held in compliance with

 18-4    Chapter 2001, Government Code [Section 18(c), Administrative

 18-5    Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas

 18-6    Civil Statutes), and its subsequent amendments].

 18-7          SECTION 8.  Subsections (a), (f), and (g), Section 19, Texas

 18-8    Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are

 18-9    amended to read as follows:

18-10          (a)  A person may not:

18-11                (1)  dispense or distribute prescription drugs unless

18-12    he is a licensed pharmacist or is authorized by this Act to

18-13    dispense or distribute prescription drugs; or

18-14                (2)  operate a pharmacy unless he first obtains a

18-15    license to operate a pharmacy.

18-16          (f)  This Act does not apply to:

18-17                (1)  a member of the faculty of a college of pharmacy

18-18    that is recognized by the board if the faculty member is a licensed

18-19    pharmacist and performs his services for the benefit of the college

18-20    only;

18-21                (2)  [a pharmacist-intern;]

18-22                [(3)]  a person who procures prescription drugs for

18-23    lawful research, teaching, or testing and not for resale; or

18-24                (3) [(4)]  a home and community support services agency

18-25    that possesses a dangerous drug as authorized by Section 142.0061,

 19-1    Health and Safety Code.

 19-2          (g)  Any person found by the board to have unlawfully engaged

 19-3    in the practice of pharmacy or unlawfully operated a pharmacy is

 19-4    subject to a civil penalty under Section 37A of this Act [fine to

 19-5    be imposed by the board not to exceed $1,000 for each offense].

 19-6    Each violation of this Act or the rules adopted under this Act

 19-7    pertaining to unlawfully engaging in the practice of pharmacy or

 19-8    unlawfully operating a pharmacy also constitutes a Class A

 19-9    misdemeanor.

19-10          SECTION 9.  Section 20, Texas Pharmacy Act (Article 4542a-1,

19-11    Vernon's Texas Civil Statutes), is amended to read as follows:

19-12          Sec. 20.  PHARMACIST-INTERN REGISTRATION.   (a)  A person

19-13    must register with the board before beginning the board-approved

19-14    internship in this state.  An application for the registration of a

19-15    pharmacist-intern must be on a form prescribed by the board.

19-16    Registration shall remain in effect as long as the person meets the

19-17    qualifications for internship as specified by rules adopted by the

19-18    board [during internship training and thereafter until the earlier

19-19    of the following occurs:]

19-20                [(1)  the failure of the pharmacist-intern to take the

19-21    next regularly scheduled examination; or]

19-22                [(2)  the failure to pass the next regularly scheduled

19-23    examination].

19-24          (b)  The board may in its discretion refuse to issue a

19-25    registration to an applicant and may restrict, suspend, or revoke a

 20-1    pharmacist-intern registration for any violation of this Act.  In

 20-2    enforcing Section 26(a)(4) of this Act, the board shall, on

 20-3    probable cause, request a pharmacist-intern or pharmacist-intern

 20-4    applicant to submit to a mental or physical examination by

 20-5    physicians or other health care professionals designated by the

 20-6    board.  If the pharmacist-intern or applicant refuses to submit to

 20-7    the examination, the board shall issue an order requiring the

 20-8    pharmacist-intern or applicant to show cause why he will not submit

 20-9    to the examination and shall schedule a hearing on the order within

20-10    30 days after notice is served on the pharmacist-intern or

20-11    applicant.  The board shall notify the pharmacist-intern or

20-12    applicant by either personal service or certified mail with return

20-13    receipt requested.  At the hearing, the pharmacist-intern or

20-14    applicant and an attorney are entitled to present any testimony and

20-15    other evidence to show why the pharmacist-intern or applicant

20-16    should not be required to submit to the examination.  After the

20-17    hearing, the board shall issue an order either requiring the

20-18    pharmacist-intern or applicant to submit to the examination or

20-19    withdrawing the request for examination.

20-20          SECTION 10.  Subsections (a) and (e), Section 21, Texas

20-21    Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are

20-22    amended to read as follows:

20-23          (a)  To qualify for a license to practice pharmacy, an

20-24    applicant for licensing by examination must submit to the board a

20-25    license fee as determined by the board and a completed application

 21-1    on a form prescribed by the board with satisfactory sworn evidence

 21-2    that he:

 21-3                (1)  is at least 18 years old;

 21-4                (2)  is of good moral character;

 21-5                (3)  has completed a minimum of a 1,000-hour internship

 21-6    or other program that has been approved by the board or has

 21-7    demonstrated, to the board's satisfaction, experience in the

 21-8    practice of pharmacy that meets or exceeds the minimum internship

 21-9    requirements of the board;

21-10                (4)  has graduated and received a [the first

21-11    professional undergraduate degree or the advanced] professional

21-12    practice degree, as defined by the rules adopted by the board, from

21-13    an accredited pharmacy degree program approved by the board;

21-14                (5)  has passed the examination required by the board;

21-15    and

21-16                (6)  has not had a pharmacist license granted by

21-17    another state suspended, revoked, canceled, surrendered, or

21-18    otherwise restricted for any reason.

21-19          (e)  The [Within 30 days after the date a licensing

21-20    examination is administered under this Act, the] board shall notify

21-21    each examinee of the results of the examination[.  However, if an

21-22    examination is graded or reviewed by a national testing service,

21-23    the board shall notify each examinee of the results of the

21-24    examination] within 30 days [two weeks] after the date the board

21-25    receives the results from a national [the] testing service.  [If

 22-1    the notice of the examination results will be delayed for more than

 22-2    90 days after the examination date, the board shall notify the

 22-3    examinee of the reason for the delay before the 90th day.]

 22-4          SECTION 11.  Subsection (a), Section 22, Texas Pharmacy Act

 22-5    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

 22-6    read as follows:

 22-7          (a)  To qualify for a license to practice pharmacy by

 22-8    reciprocity, an applicant for licensing must:

 22-9                (1)  submit to the board a reciprocity fee as

22-10    determined by the board and a completed application given under

22-11    oath, in the form prescribed by the board;

22-12                (2)  have good moral character;

22-13                (3)  have graduated and received a [the first

22-14    professional undergraduate degree or the advanced] professional

22-15    practice degree, as defined by the rules adopted by the board, from

22-16    an accredited pharmacy degree program approved by the board;

22-17                (4)  have possessed at the time of initial licensing as

22-18    a pharmacist other qualifications necessary to have been eligible

22-19    for licensing at that time in this state;

22-20                (5)  have presented to the board proof of initial

22-21    licensing by examination and proof that the license and other

22-22    license or licenses granted to the applicant by any other state

22-23    have not been suspended, revoked, canceled, surrendered, or

22-24    otherwise restricted for any reason; and

22-25                (6)  pass the Texas [Drug and] Pharmacy Jurisprudence

 23-1    examination.

 23-2          SECTION 12.  Subsection (b), Section 26, Texas Pharmacy Act

 23-3    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

 23-4    read as follows:

 23-5          (b)  Grounds for Disciplining a Holder of a Pharmacy License:

 23-6    The board shall refuse to issue a pharmacy license for failure to

 23-7    meet the requirements of Section 29 or 30 of this Act.  The board

 23-8    may in its discretion refuse to issue or renew a license or may

 23-9    assess a penalty, reprimand, revoke, restrict, cancel, or suspend

23-10    any license granted by the board, and may probate any license

23-11    suspension if the board finds that the applicant or licensee has:

23-12                (1)  been convicted of a felony or a misdemeanor

23-13    involving moral turpitude, or if the applicant or licensee is a

23-14    legal entity such as an association, joint stock company,

23-15    partnership, or corporation, that a managing officer has been

23-16    convicted of a felony or a misdemeanor involving moral turpitude

23-17    under the law of this state, another state, or the United States;

23-18                (2)  advertised any prescription drugs or devices in a

23-19    deceitful, misleading, or fraudulent manner;

23-20                (3)  violated any provision of this Act or any rule

23-21    adopted under this Act or that any owner or employee of a pharmacy

23-22    has violated any provision of this Act or any rule adopted under

23-23    this Act;

23-24                (4)  sold without legal authorization prescription

23-25    drugs or devices to persons other than:

 24-1                      (A)  a pharmacy licensed by the board;

 24-2                      (B)  a practitioner;

 24-3                      (C)  a person who procures prescription drugs or

 24-4    devices for the purpose of lawful research, teaching, or testing,

 24-5    and not for resale;

 24-6                      (D)  a manufacturer or wholesaler registered with

 24-7    the commissioner of health as required by Chapter 431, Health and

 24-8    Safety Code; or

 24-9                      (E)  a carrier or warehouseman;

24-10                (5)  allowed an employee who is not a licensed

24-11    pharmacist to practice pharmacy;

24-12                (6)  sold adulterated or misbranded prescription or

24-13    nonprescription drugs;

24-14                (7)  failed to engage in or ceased to engage in the

24-15    business described in the application for a license;

24-16                (8)  failed to keep and maintain records as required by

24-17    this Act, the Controlled Substances Act, Dangerous Drug Act, or

24-18    rules adopted under this Act or the Dangerous Drug Act; [or]

24-19                (9)  failed to establish and maintain effective

24-20    controls against diversion of prescription drugs into other than

24-21    legitimate medical, scientific, or industrial channels as provided

24-22    by this Act or other state or federal laws or rules; or

24-23                (10)  engaged in any fraud, deceit, or

24-24    misrepresentation as defined by the rules adopted by the board in

24-25    operating a pharmacy or in seeking a license to operate a pharmacy.

 25-1          SECTION 13.  Subsection (c), Section 26A, Texas Pharmacy Act

 25-2    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

 25-3    read as follows:

 25-4          (c)  Any disciplinary action taken by the board under this

 25-5    section is governed by the Administrative Procedure Act (Chapter

 25-6    2001, Government Code [and Texas Register Act (Article 6252-13a,

 25-7    Vernon's Texas Civil Statutes]) and the rules of practice and

 25-8    procedure adopted by the board.

 25-9          SECTION 14.  Section 27, Texas Pharmacy Act (Article 4542a-1,

25-10    Vernon's Texas Civil Statutes), is amended to read as follows:

25-11          Sec. 27.  PROCEDURE.   Except as provided in Section 27A of

25-12    this Act, any disciplinary action taken by the board under Section

25-13    26, 26A, or 26B of this Act is governed by the Administrative

25-14    Procedure Act (Chapter 2001, Government Code [and Texas Register

25-15    Act (Article 6252-13a, Vernon's Texas Civil Statutes]) and the

25-16    rules of practice and procedure before the board.

25-17          SECTION 15.  Subsection (d), Section 27A, Texas Pharmacy Act

25-18    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

25-19    read as follows:

25-20          (d)  The records and proceedings of the board, its authorized

25-21    agents, or any pharmaceutical organization committee as set out in

25-22    Subsections (a) and (b) of this section shall be confidential and

25-23    are not considered open records for the purposes of Chapter 552,

25-24    Government Code [424, Acts of the 63rd Legislature, Regular

25-25    Session, 1973, as amended (Article 6252-17a, Vernon's Texas Civil

 26-1    Statutes)]; provided, however, the board may disclose this

 26-2    confidential information only:

 26-3                (1)  in a disciplinary hearing before the board or in a

 26-4    subsequent trial or appeal of a board action or order;

 26-5                (2)  to the pharmacist licensing or disciplinary

 26-6    authorities of other jurisdictions;

 26-7                (3)  pursuant to an order of a court of competent

 26-8    jurisdiction; or

 26-9                (4)  pursuant to Subsection (j) of this section.

26-10          SECTION 16.  Subsection (c), Section 27B, Texas Pharmacy Act

26-11    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

26-12    read as follows:

26-13          (c)  The identity of a person who reports to or assists the

26-14    board under this section and any document that could disclose the

26-15    identity of that person is confidential and does not constitute

26-16    public information for the purposes of Chapter 552, Government Code

26-17    [424, Acts of the 63rd Legislature, Regular Session, 1973 (Article

26-18    6252-17a, Vernon's Texas Civil Statutes)].

26-19          SECTION 17.  Subsection (a), Section 28, Texas Pharmacy Act

26-20    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

26-21    read as follows:

26-22          (a)  On the finding of the existence of grounds for

26-23    discipline of any person holding a license or seeking a license or

26-24    a renewal license under this Act, the board may impose one or more

26-25    of the following penalties:

 27-1                (1)  suspension of the offender's license;

 27-2                (2)  revocation of the offender's license;

 27-3                (3)  restriction of the offender's license to prohibit

 27-4    the offender from performing certain acts or from engaging in the

 27-5    practice of pharmacy or operating a pharmacy in a particular manner

 27-6    for a term and under conditions to be determined by the board;

 27-7                (4)  imposition of an administrative penalty under

 27-8    Section 28B of this Act;

 27-9                (5)  refusal to issue or renew the offender's license;

27-10                (6)  placement of the offender's license on probation

27-11    and supervision by the board for a period to be determined by the

27-12    board and imposition of a requirement that the licensee:

27-13                      (A)  report regularly to the board on matters

27-14    that are the basis of the probation;

27-15                      (B)  limit practice to the areas prescribed by

27-16    the board; [or]

27-17                      (C)  continue or review professional education

27-18    until the licensee attains a degree of skill satisfactory to the

27-19    board in those areas that are the basis of the probation; or

27-20                      (D)  pay the board a probation fee to defray the

27-21    costs of monitoring a licensee during the period of probation;

27-22                (7)  reprimand;

27-23                (8)  cancellation of the offender's license; or

27-24                (9)  retirement of the offender's license as provided

27-25    by board rule[; or]

 28-1                [(10)  imposition of a civil penalty that does not

 28-2    exceed $1,000 for each day of each violation and that may be

 28-3    collected in a suit initiated by the board].

 28-4          SECTION 18.  Subsection (e), Section 29, Texas Pharmacy Act

 28-5    (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to

 28-6    read as follows:

 28-7          (e)  The board shall have the discretion to determine under

 28-8    which classifications a pharmacy applicant may be licensed.  With

 28-9    respect to Class C pharmacies, the board may establish rules for

28-10    the use of pharmacy technicians [supportive personnel] and the

28-11    duties of those technicians [personnel] in Class C pharmacies

28-12    licensed by the board, provided that these technicians [personnel]

28-13    are responsible to and directly supervised by a pharmacist licensed

28-14    by the board; provided, however, the board may not adopt any rule

28-15    setting ratios with respect to pharmacists and pharmacy technicians

28-16    [supportive personnel] or limiting the number of pharmacy

28-17    technicians [supportive personnel] that may be utilized.

28-18          SECTION 19.  Section 35, Texas Pharmacy Act (Article 4542a-1,

28-19    Vernon's Texas Civil Statutes), is amended to read as follows:

28-20          Sec. 35.  UNLAWFUL USE OF "PHARMACY."    (a)  A person may

28-21    not display in or on any store or place of business the word

28-22    "pharmacy," either in English or any other language, any other word

28-23    or combination of words of the same or similar meaning, or any

28-24    graphic representation that would mislead or tend to mislead the

28-25    public unless it is a pharmacy licensed under this Act.

 29-1          (b)  A person may not advertise any store or place of

 29-2    business as a pharmacy or provide pharmacy services unless the

 29-3    facility is a pharmacy licensed under this Act.

 29-4          SECTION 20.  The Texas Pharmacy Act (Article 4542a-1,

 29-5    Vernon's Texas Civil Statutes) is amended by adding Section 37A to

 29-6    read as follows:

 29-7          Sec. 37A.  CIVIL PENALTY.  (a)  A person who violates the

 29-8    license requirements of this Act is liable to the state for a civil

 29-9    penalty of up to $1,000 for each day the violation continues.

29-10          (b)  At the request of the board, the attorney general shall

29-11    institute an action to collect a civil penalty from a person who

29-12    has violated this Act or rules adopted under this Act.

29-13          (c)  If the attorney general fails to take action within 30

29-14    days of referral from the board, the board shall refer the case to

29-15    the local district attorney, county attorney, or city attorney.

29-16    The district attorney, county attorney, or city attorney shall file

29-17    suit in a district court to collect and retain the penalty.

29-18          SECTION 21.  Subdivisions (10) and (11), Section 483.001,

29-19    Health and Safety Code, are amended to read as follows:

29-20                (10)  "Pharmacy" means a facility where prescription

29-21    drug or medication orders are received, processed, dispensed, or

29-22    distributed under this chapter, Chapter 481, and the Texas Pharmacy

29-23    Act (Article 4542a-1, Vernon's Texas Civil Statutes) [licensed by

29-24    the board pursuant to Section 29, Texas Pharmacy Act (Article

29-25    4542a-1, Vernon's Texas Civil Statutes)].

 30-1                (11)  "Practice of pharmacy" means:

 30-2                      (A)  provision of those acts or services

 30-3    necessary to provide pharmaceutical care;

 30-4                      (B)  interpretation and evaluation of

 30-5    prescription drug orders or medication orders;

 30-6                      (C)  participation in drug and device selection

 30-7    as authorized by law, drug administration, drug regimen review, or

 30-8    drug or drug-related research;

 30-9                      (D)  provision of patient counseling; [and]

30-10                      (E)  responsibility for:

30-11                            (i)  dispensing of prescription drug orders

30-12    or distribution of medication orders in the patient's best

30-13    interest;

30-14                            (ii)  compounding and labeling of drugs and

30-15    devices, except labeling by a manufacturer, repackager, or

30-16    distributor of nonprescription drugs and commercially packaged

30-17    prescription drugs and devices;

30-18                            (iii)  proper and safe storage of drugs and

30-19    devices; and

30-20                            (iv)  maintenance of proper records for

30-21    drugs and devices.  In this subdivision, "device" has the meaning

30-22    assigned by the Texas Pharmacy Act (Article 4542a-1, Vernon's Texas

30-23    Civil Statutes); and

30-24                      (F)  performance of a specific act of drug

30-25    therapy management for a patient delegated to a pharmacist by a

 31-1    written protocol from a physician licensed by the state under the

 31-2    Medical Practice Act (Article 4495b, Vernon's Texas Civil

 31-3    Statutes).

 31-4          SECTION 22.  Subsection (b), Section 483.003, Health and

 31-5    Safety Code, is amended to read as follows:

 31-6          (b)  On making that finding, the Texas Board of Health

 31-7    [board] may limit the availability of the abused drug by permitting

 31-8    its dispensing only on the prescription of a practitioner described

 31-9    by Section 483.001(12)(A) or (B).

31-10          SECTION 23.  Subsection (e), Section 483.042, Health and

31-11    Safety Code, is amended to read as follows:

31-12          (e)  The labeling provisions of Subsection (a) do not apply

31-13    to a dangerous drug prescribed or dispensed for administration to a

31-14    patient who is institutionalized.  The board shall adopt rules for

31-15    the labeling of such a drug [food production animals in an

31-16    agricultural operation under a written medical directive or

31-17    treatment guideline from a veterinarian licensed under The

31-18    Veterinary Licensing Act (Article 8890, Revised Statutes) and its

31-19    subsequent amendments].

31-20          SECTION 24.  Chapter 107, Acts of the 41st Legislature,

31-21    Regular Session, 1929 (Article 4542a, Vernon's Texas Civil

31-22    Statutes), is repealed.

31-23          SECTION 25.  Subsection (b), Section 26A, Texas Pharmacy Act

31-24    (Article 4542a-1, Vernon's Texas Civil Statutes), as amended by

31-25    Section 7, Chapter 789, Acts of the 73rd Legislature, 1993, is

 32-1    repealed.

 32-2          SECTION 26.  This Act takes effect September 1, 1997.

 32-3          SECTION 27.  (a)  This Act applies only to a license issued

 32-4    by the Texas State Board of Pharmacy on or after the effective date

 32-5    of this Act.  A license issued or renewed before that date is

 32-6    governed by the law in effect on the date the license was issued or

 32-7    renewed, and the former law is continued in effect for that

 32-8    purpose.

 32-9          (b)  Section 37A, Texas Pharmacy Act (Article 4542a-1,

32-10    Vernon's Texas Civil Statutes), as added by this Act, applies only

32-11    to a violation of the licensing requirements of the Texas Pharmacy

32-12    Act (Article 4542a-1, Vernon's Texas Civil Statutes) that occurs on

32-13    or after the effective date of this Act.

32-14          SECTION 28.  The importance of this legislation and the

32-15    crowded condition of the calendars in both houses create an

32-16    emergency and an imperative public necessity that the

32-17    constitutional rule requiring bills to be read on three several

32-18    days in each house be suspended, and this rule is hereby suspended.