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