HBA-JRA S.B. 780 76(R)BILL ANALYSIS Office of House Bill AnalysisS.B. 780 By: Madla Public Health 4/6/1999 Engrossed BACKGROUND AND PURPOSE Currently, Texas law does not provide for a pharmacy peer review committee. S.B. 780 establishes pharmacy peer review committees. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 17(q), Article 4542a-1, V.T.C.S. (Texas Pharmacy Act), to include a pharmacy peer review committee as outlined in Section 42 of this Act among the persons and entities to whom the disclosure of Texas State Board of Pharmacy (board) investigative files and all information and materials compiled by the board in connection with an investigation is authorized. SECTION 2. Amends Article 4542a-1, V.T.C.S. (Texas Pharmacy Act), by adding Section 42, as follows: Sec. 42. PEER REVIEW. (a) Defines "pharmacy peer review committee" and "pharmacy society or association" for the purpose of this section. (b) Authorizes the establishment of a pharmacy peer review committee (committee) to evaluate the quality of pharmacy services or the competence of pharmacists. Authorizes the committee to investigate disagreements or complaints, determine facts, and make recommendations or issue decisions in a written report. Sets forth the composition of the committee. (c) Provides that all proceedings and records of a committee are confidential and all communications made to the committee are privileged, except as otherwise provided by this section. Provides that, if a judge makes a preliminary finding that such proceedings, records, or communications are relevant to an anticompetitive action or an action brought under federal civil rights provisions under 42 U.S.C. Section 1983 (Civil Action for Deprivation of Rights), then such proceedings, records, or communications are not confidential to the extent they are deemed relevant. (d) Authorize the final report of and any written or oral communications made to a committee and the records and proceedings of the committee to be disclosed to another committee, appropriate state or federal agencies, national accreditation bodies, or the state board of registration or licensure of this or any other state. (e) Requires that disclosure to the affected pharmacist of confidential committee information pertinent to the matter under review not constitute waiver of the confidentiality provisions of this section. Requires that an affected pharmacist be provided a written copy of the committee's recommendation and final decision, including a statement of the basis for the decision, if the committee takes action that could result in censure, license suspension, restriction, limitation, or revocation by the board or denial of membership or privileges in a health care entity. (f) Provides that records or determinations of or communications to a committee are not subject to subpoena or discovery and are not admissable as evidence in any civil judicial or administrative proceeding without written waiver of the confidentiality privilege by the committee, unless disclosure is required or authorized by law. Authorizes any person or organization in any civil judicial or administrative proceeding to invoke the evidentiary privilege created by this section unless the person or organization has secured written waiver of the privilege by the chairman, vice chairman, or secretary of the affected committee. Authorizes a plaintiff in a suit under Subsection (i) of this section to disclose records or determinations of or communications to a committee in rebuttal to a defendant who is authorized to use otherwise confidential information in the defendent's defense. Provides that any person seeking access to privileged information must plead and prove waiver of the privilege. Provides that a member, employee, or agent of a committee who provides access to otherwise privilege communications or records in cooperation with law enforcement authorities in criminal investigations is not considered to have waived any privilege established under this section. (g) Requires all persons, including governing bodies and medical staffs of health care entities, to comply fully with a subpoena for documents or information issued by the board as otherwise authorized by law. Provides that the disclosure of documents or information under such subpoena does not constitute a waiver of the privilege associated with committee proceedings. Provides that failure to comply with such subpoena constitutes grounds for disciplinary action against the facility or individual by the appropriate licensing board. (h) Provides that a cause of action does not accrue against the members, agents, or employees of a committee from any act, statement, determination, or recommendation made or act reported, without malice, in the course of peer review according to this section. (i) Authorizes a committee, a person participating in peer review, or a health care entity named as a defendant in any civil action filed as a result of participation in peer review to use otherwise confidential information obtained for legitimate internal business and professional purposes, including use in the committee's, person's, or entity's own defense. Provides that such use does not constitute a waiver of the confidential and privileged nature of committee proceedings. (j) Provides that reports, information, or records received and maintained by the board pursuant to this section are considered investigative files and are confidential and authorizes their release only as specified in Section 17(g) of this Act. SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause.