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 and suggest improvements in pharmacy 2-10 systems to enhance patient care; or 2-11 (B) a pharmacy peer review committee established 2-12 by a person who owns a pharmacy or employs pharmacists that is 2-13 authorized to evaluate the quality of pharmacy services or the 2-14 competence of pharmacists and suggest improvements in pharmacy 2-15 systems to enhance patient care. 2-16 (2) "Pharmacy society or association" means a 2-17 membership organization of pharmacists that is incorporated 2-18 pursuant to the Texas Non-Profit Corporation Act (Article 1396-1.01 2-19 et seq., Vernon's Texas Civil Statutes) or that is exempt from the 2-20 payment of federal income taxes pursuant to Section 501(c) of the 2-21 Internal Revenue Code of 1986. 2-22 (b) A pharmacy peer review committee may be established to 2-23 evaluate the quality of pharmacy services or the competence of 2-24 pharmacists and suggest improvements in pharmacy systems to enhance 2-25 patient care. The committee may review documentation of 2-26 quality-related activities in a pharmacy, assess system failures 3-1 and personnel deficiencies, determine facts, and make 3-2 recommendations or issue decisions in a written report that can be 3-3 used for contiguous quality improvement purposes. A pharmacy peer 3-4 review committee includes the members, employees, and agents of the 3-5 committee, including assistants, investigators, attorneys, and any 3-6 other agents that serve the committee in any capacity. 3-7 (c) Except as otherwise provided by this section, all 3-8 proceedings and records of a pharmacy peer review committee are 3-9 confidential, and all communications made to a pharmacy peer review 3-10 committee are privileged. If a judge makes a preliminary finding 3-11 that such proceedings, records, or communications are relevant to 3-12 an anticompetitive action or an action brought under federal civil 3-13 rights provisions under 42 U.S.C. Section 1983, then such 3-14 proceedings, records, or communications are not confidential to the 3-15 extent they are deemed relevant. 3-16 (d) The final report of and any written or oral 3-17 communications made to a pharmacy peer review committee and the 3-18 records and proceedings of the committee may be disclosed to 3-19 another pharmacy peer review committee, appropriate state or 3-20 federal agencies, national accreditation bodies, or the state board 3-21 of registration or licensure of this or any other state. 3-22 (e) Disclosure to the affected pharmacist of confidential 3-23 pharmacy peer review committee information pertinent to the matter 3-24 under review shall not constitute waiver of the confidentiality 3-25 provisions provided by this section. If a pharmacy peer review 3-26 committee takes action that could result in censure, license 4-1 suspension, restriction, limitation, or revocation by the board or 4-2 denial of membership or privileges in a health care entity, the 4-3 affected pharmacist shall be provided a written copy of the 4-4 recommendation of the pharmacy peer review committee and a copy of 4-5 the pharmacy peer review committee's final decision, including a 4-6 statement of the basis for the decision. 4-7 (f) Unless disclosure is required or authorized by law, 4-8 records or determinations of or communications to a pharmacy peer 4-9 review committee are not subject to subpoena or discovery and are 4-10 not admissible as evidence in any civil judicial or administrative 4-11 proceeding without waiver of the privilege of confidentiality 4-12 executed in writing by the committee. The evidentiary privilege 4-13 created by this section may be invoked by any person or 4-14 organization in any civil judicial or administrative proceeding 4-15 unless the person or organization has secured a waiver of the 4-16 privilege executed in writing by the chairman, vice chairman, or 4-17 secretary of the affected pharmacy peer review committee. If a 4-18 pharmacy peer review committee, a person participating in peer 4-19 review, or any organization named as a defendant in any civil 4-20 action filed as a result of participation in peer review may use 4-21 otherwise confidential information in the committee's, person's, or 4-22 organization's own defense or in a claim or suit under Subsection 4-23 (i) of this section, a plaintiff in such proceeding may disclose 4-24 records or determinations of or communications to a peer review 4-25 committee in rebuttal to information supplied by the defendant. 4-26 Any person seeking access to privileged information must plead and 5-1 prove waiver of the privilege. A member, employee, or agent of a 5-2 pharmacy peer review committee who provides access to otherwise 5-3 privileged communications or records in cooperation with law 5-4 enforcement authorities in criminal investigations is not 5-5 considered to have waived any privilege established under this 5-6 section. 5-7 (g) All persons, including governing bodies and medical 5-8 staffs of health care entities, shall comply fully with a subpoena 5-9 for documents or information issued by the board as otherwise 5-10 authorized by law. The disclosure of documents or information 5-11 under such subpoena does not constitute a waiver of the privilege 5-12 associated with pharmacy peer review committee proceedings. 5-13 Failure to comply with such subpoena constitutes grounds for 5-14 disciplinary action against the facility or individual by the 5-15 appropriate licensing board. 5-16 (h) A cause of action does not accrue against the members, 5-17 agents, or employees of a pharmacy peer review committee from any 5-18 act, statement, determination, or recommendation made or act 5-19 reported, without malice, in the course of peer review according to 5-20 this section. 5-21 (i) A pharmacy peer review committee, a person participating 5-22 in peer review, or a health care entity named as a defendant in any 5-23 civil action filed as a result of participation in peer review may 5-24 use otherwise confidential information obtained for legitimate 5-25 internal business and professional purposes, including use in the 5-26 committee's, person's, or entity's own defense. Such use does not 6-1 constitute a waiver of the confidential and privileged nature of 6-2 pharmacy peer review committee proceedings. 6-3 (j) Reports, information, or records received and maintained 6-4 by the board pursuant to this section are considered investigative 6-5 files and are confidential and may only be released as specified in 6-6 Section 17(q) of this Act. 6-7 SECTION 3. This Act takes effect September 1, 1999. 6-8 SECTION 4. The importance of this legislation and the 6-9 crowded condition of the calendars in both houses create an 6-10 emergency and an imperative public necessity that the 6-11 constitutional rule requiring bills to be read on three several 6-12 days in each house be suspended, and this rule is hereby suspended. _______________________________ _______________________________ President of the Senate Speaker of the House I hereby certify that S.B. No. 780 passed the Senate on March 25, 1999, by the following vote: Yeas 31, Nays 0; and that the Senate concurred in House amendments on May 4, 1999, by the following vote: Yeas 30, Nays 0. _______________________________ Secretary of the Senate I hereby certify that S.B. No. 780 passed the House, with amendments, on April 23, 1999, by a non-record vote. _______________________________ Chief Clerk of the House Approved: _______________________________ Date _______________________________ Governor