By: Madla S.B. No. 780
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the establishment of pharmacy peer review committees.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (q), Section 17, Texas Pharmacy Act
1-4 (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
1-5 read as follows:
1-6 (q) Board investigative files and all information and
1-7 materials compiled by the board in connection with an investigation
1-8 are confidential and are not subject to disclosure under Chapter
1-9 552, Government Code, and are not subject to disclosure, discovery,
1-10 subpoena, or other means of legal compulsion for their release to
1-11 anyone other than the board or its employees or agents involved in
1-12 licensee discipline except that this information may be disclosed
1-13 to:
1-14 (1) persons involved with the board in a disciplinary
1-15 action against the licensee;
1-16 (2) pharmacist or pharmacy licensing or disciplinary
1-17 authorities of other jurisdictions;
1-18 (3) a pharmaceutical or pharmacy peer review committee
1-19 as outlined in Section 27A or 42 of this Act;
1-20 (4) law enforcement agencies; and
1-21 (5) persons engaged in bona fide research, if all
1-22 individual-identifying information has been deleted.
1-23 SECTION 2. The Texas Pharmacy Act (Article 4542a-1, Vernon's
1-24 Texas Civil Statutes), is amended by adding Section 42 to read as
2-1 follows:
2-2 Sec. 42. PEER REVIEW. (a) The following words and terms,
2-3 when used in this section, have the following meanings unless the
2-4 context clearly indicates otherwise:
2-5 (1) "Pharmacy peer review committee" means:
2-6 (A) a pharmacy peer review, judicial, or
2-7 grievance committee of a pharmacy society or association that is
2-8 authorized to evaluate the quality of pharmacy services or the
2-9 competence of pharmacists; or
2-10 (B) a pharmacy peer review committee established
2-11 by a person who owns a pharmacy or employs pharmacists that is
2-12 authorized to evaluate the quality of pharmacy services or the
2-13 competence of pharmacists.
2-14 (2) "Pharmacy society or association" means a
2-15 membership organization of pharmacists that is incorporated
2-16 pursuant to the Texas Non-Profit Corporation Act (Article 1396-1.01
2-17 et seq., Vernon's Texas Civil Statutes) or that is exempt from the
2-18 payment of federal income taxes pursuant to Section 501(c) of the
2-19 Internal Revenue Code of 1986.
2-20 (b) A pharmacy peer review committee may be established to
2-21 evaluate the quality of pharmacy services or the competence of
2-22 pharmacists. The committee may investigate disagreements or
2-23 complaints, determine facts, and make recommendations or issue
2-24 decisions in a written report. A pharmacy peer review committee
2-25 includes the members, employees, and agents of the committee,
2-26 including assistants, investigators, attorneys, and any other
3-1 agents that serve the committee in any capacity.
3-2 (c) Except as otherwise provided by this section, all
3-3 proceedings and records of a pharmacy peer review committee are
3-4 confidential, and all communications made to a pharmacy peer review
3-5 committee are privileged. If a judge makes a preliminary finding
3-6 that such proceedings, records, or communications are relevant to
3-7 an anticompetitive action or an action brought under federal civil
3-8 rights provisions under 42 U.S.C. Section 1983, then such
3-9 proceedings, records, or communications are not confidential to the
3-10 extent they are deemed relevant.
3-11 (d) The final report of and any written or oral
3-12 communications made to a pharmacy peer review committee and the
3-13 records and proceedings of the committee may be disclosed to
3-14 another pharmacy peer review committee, appropriate state or
3-15 federal agencies, national accreditation bodies, or the state board
3-16 of registration or licensure of this or any other state.
3-17 (e) Disclosure to the affected pharmacist of confidential
3-18 pharmacy peer review committee information pertinent to the matter
3-19 under review shall not constitute waiver of the confidentiality
3-20 provisions provided by this section. If a pharmacy peer review
3-21 committee takes action that could result in censure, license
3-22 suspension, restriction, limitation, or revocation by the board or
3-23 denial of membership or privileges in a health care entity, the
3-24 affected pharmacist shall be provided a written copy of the
3-25 recommendation of the pharmacy peer review committee and a copy of
3-26 the pharmacy peer review committee's final decision, including a
4-1 statement of the basis for the decision.
4-2 (f) Unless disclosure is required or authorized by law,
4-3 records or determinations of or communications to a pharmacy peer
4-4 review committee are not subject to subpoena or discovery and are
4-5 not admissible as evidence in any civil judicial or administrative
4-6 proceeding without waiver of the privilege of confidentiality
4-7 executed in writing by the committee. The evidentiary privilege
4-8 created by this section may be invoked by any person or
4-9 organization in any civil judicial or administrative proceeding
4-10 unless the person or organization has secured a waiver of the
4-11 privilege executed in writing by the chairman, vice chairman, or
4-12 secretary of the affected pharmacy peer review committee. If a
4-13 pharmacy peer review committee, a person participating in peer
4-14 review, or any organization named as a defendant in any civil
4-15 action filed as a result of participation in peer review may use
4-16 otherwise confidential information in the committee's, person's, or
4-17 organization's own defense or in a claim or suit under Subsection
4-18 (i) of this section, a plaintiff in such proceeding may disclose
4-19 records or determinations of or communications to a peer review
4-20 committee in rebuttal to information supplied by the defendant.
4-21 Any person seeking access to privileged information must plead and
4-22 prove waiver of the privilege. A member, employee, or agent of a
4-23 pharmacy peer review committee who provides access to otherwise
4-24 privileged communications or records in cooperation with law
4-25 enforcement authorities in criminal investigations is not
4-26 considered to have waived any privilege established under this
5-1 section.
5-2 (g) All persons, including governing bodies and medical
5-3 staffs of health care entities, shall comply fully with a subpoena
5-4 for documents or information issued by the board as otherwise
5-5 authorized by law. The disclosure of documents or information
5-6 under such subpoena does not constitute a waiver of the privilege
5-7 associated with pharmacy peer review committee proceedings.
5-8 Failure to comply with such subpoena constitutes grounds for
5-9 disciplinary action against the facility or individual by the
5-10 appropriate licensing board.
5-11 (h) A cause of action does not accrue against the members,
5-12 agents, or employees of a pharmacy peer review committee from any
5-13 act, statement, determination, or recommendation made or act
5-14 reported, without malice, in the course of peer review according to
5-15 this section.
5-16 (i) A pharmacy peer review committee, a person participating
5-17 in peer review, or a health care entity named as a defendant in any
5-18 civil action filed as a result of participation in peer review may
5-19 use otherwise confidential information obtained for legitimate
5-20 internal business and professional purposes, including use in the
5-21 committee's, person's, or entity's own defense. Such use does not
5-22 constitute a waiver of the confidential and privileged nature of
5-23 pharmacy peer review committee proceedings.
5-24 (j) Reports, information, or records received and maintained
5-25 by the board pursuant to this section are considered investigative
5-26 files and are confidential and may only be released as specified in
6-1 Section 17(q) of this Act.
6-2 SECTION 3. This Act takes effect September 1, 1999.
6-3 SECTION 4. The importance of this legislation and the
6-4 crowded condition of the calendars in both houses create an
6-5 emergency and an imperative public necessity that the
6-6 constitutional rule requiring bills to be read on three several
6-7 days in each house be suspended, and this rule is hereby suspended.