1-1 By: Madla S.B. No. 780 1-2 (In the Senate - Filed March 2, 1999; March 3, 1999, read 1-3 first time and referred to Committee on Health Services; 1-4 March 17, 1999, reported favorably by the following vote: Yeas 5, 1-5 Nays 0; March 17, 1999, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the establishment of pharmacy peer review committees. 1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-10 SECTION 1. Subsection (q), Section 17, Texas Pharmacy Act 1-11 (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to 1-12 read as follows: 1-13 (q) Board investigative files and all information and 1-14 materials compiled by the board in connection with an investigation 1-15 are confidential and are not subject to disclosure under Chapter 1-16 552, Government Code, and are not subject to disclosure, discovery, 1-17 subpoena, or other means of legal compulsion for their release to 1-18 anyone other than the board or its employees or agents involved in 1-19 licensee discipline except that this information may be disclosed 1-20 to: 1-21 (1) persons involved with the board in a disciplinary 1-22 action against the licensee; 1-23 (2) pharmacist or pharmacy licensing or disciplinary 1-24 authorities of other jurisdictions; 1-25 (3) a pharmaceutical or pharmacy peer review committee 1-26 as outlined in Section 27A or 42 of this Act; 1-27 (4) law enforcement agencies; and 1-28 (5) persons engaged in bona fide research, if all 1-29 individual-identifying information has been deleted. 1-30 SECTION 2. The Texas Pharmacy Act (Article 4542a-1, Vernon's 1-31 Texas Civil Statutes), is amended by adding Section 42 to read as 1-32 follows: 1-33 Sec. 42. PEER REVIEW. (a) The following words and terms, 1-34 when used in this section, have the following meanings unless the 1-35 context clearly indicates otherwise: 1-36 (1) "Pharmacy peer review committee" means: 1-37 (A) a pharmacy peer review, judicial, or 1-38 grievance committee of a pharmacy society or association that is 1-39 authorized to evaluate the quality of pharmacy services or the 1-40 competence of pharmacists; or 1-41 (B) a pharmacy peer review committee established 1-42 by a person who owns a pharmacy or employs pharmacists that is 1-43 authorized to evaluate the quality of pharmacy services or the 1-44 competence of pharmacists. 1-45 (2) "Pharmacy society or association" means a 1-46 membership organization of pharmacists that is incorporated 1-47 pursuant to the Texas Non-Profit Corporation Act (Article 1396-1.01 1-48 et seq., Vernon's Texas Civil Statutes) or that is exempt from the 1-49 payment of federal income taxes pursuant to Section 501(c) of the 1-50 Internal Revenue Code of 1986. 1-51 (b) A pharmacy peer review committee may be established to 1-52 evaluate the quality of pharmacy services or the competence of 1-53 pharmacists. The committee may investigate disagreements or 1-54 complaints, determine facts, and make recommendations or issue 1-55 decisions in a written report. A pharmacy peer review committee 1-56 includes the members, employees, and agents of the committee, 1-57 including assistants, investigators, attorneys, and any other 1-58 agents that serve the committee in any capacity. 1-59 (c) Except as otherwise provided by this section, all 1-60 proceedings and records of a pharmacy peer review committee are 1-61 confidential, and all communications made to a pharmacy peer review 1-62 committee are privileged. If a judge makes a preliminary finding 1-63 that such proceedings, records, or communications are relevant to 1-64 an anticompetitive action or an action brought under federal civil 2-1 rights provisions under 42 U.S.C. Section 1983, then such 2-2 proceedings, records, or communications are not confidential to the 2-3 extent they are deemed relevant. 2-4 (d) The final report of and any written or oral 2-5 communications made to a pharmacy peer review committee and the 2-6 records and proceedings of the committee may be disclosed to 2-7 another pharmacy peer review committee, appropriate state or 2-8 federal agencies, national accreditation bodies, or the state board 2-9 of registration or licensure of this or any other state. 2-10 (e) Disclosure to the affected pharmacist of confidential 2-11 pharmacy peer review committee information pertinent to the matter 2-12 under review shall not constitute waiver of the confidentiality 2-13 provisions provided by this section. If a pharmacy peer review 2-14 committee takes action that could result in censure, license 2-15 suspension, restriction, limitation, or revocation by the board or 2-16 denial of membership or privileges in a health care entity, the 2-17 affected pharmacist shall be provided a written copy of the 2-18 recommendation of the pharmacy peer review committee and a copy of 2-19 the pharmacy peer review committee's final decision, including a 2-20 statement of the basis for the decision. 2-21 (f) Unless disclosure is required or authorized by law, 2-22 records or determinations of or communications to a pharmacy peer 2-23 review committee are not subject to subpoena or discovery and are 2-24 not admissible as evidence in any civil judicial or administrative 2-25 proceeding without waiver of the privilege of confidentiality 2-26 executed in writing by the committee. The evidentiary privilege 2-27 created by this section may be invoked by any person or 2-28 organization in any civil judicial or administrative proceeding 2-29 unless the person or organization has secured a waiver of the 2-30 privilege executed in writing by the chairman, vice chairman, or 2-31 secretary of the affected pharmacy peer review committee. If a 2-32 pharmacy peer review committee, a person participating in peer 2-33 review, or any organization named as a defendant in any civil 2-34 action filed as a result of participation in peer review may use 2-35 otherwise confidential information in the committee's, person's, or 2-36 organization's own defense or in a claim or suit under Subsection 2-37 (i) of this section, a plaintiff in such proceeding may disclose 2-38 records or determinations of or communications to a peer review 2-39 committee in rebuttal to information supplied by the defendant. 2-40 Any person seeking access to privileged information must plead and 2-41 prove waiver of the privilege. A member, employee, or agent of a 2-42 pharmacy peer review committee who provides access to otherwise 2-43 privileged communications or records in cooperation with law 2-44 enforcement authorities in criminal investigations is not 2-45 considered to have waived any privilege established under this 2-46 section. 2-47 (g) All persons, including governing bodies and medical 2-48 staffs of health care entities, shall comply fully with a subpoena 2-49 for documents or information issued by the board as otherwise 2-50 authorized by law. The disclosure of documents or information 2-51 under such subpoena does not constitute a waiver of the privilege 2-52 associated with pharmacy peer review committee proceedings. 2-53 Failure to comply with such subpoena constitutes grounds for 2-54 disciplinary action against the facility or individual by the 2-55 appropriate licensing board. 2-56 (h) A cause of action does not accrue against the members, 2-57 agents, or employees of a pharmacy peer review committee from any 2-58 act, statement, determination, or recommendation made or act 2-59 reported, without malice, in the course of peer review according to 2-60 this section. 2-61 (i) A pharmacy peer review committee, a person participating 2-62 in peer review, or a health care entity named as a defendant in any 2-63 civil action filed as a result of participation in peer review may 2-64 use otherwise confidential information obtained for legitimate 2-65 internal business and professional purposes, including use in the 2-66 committee's, person's, or entity's own defense. Such use does not 2-67 constitute a waiver of the confidential and privileged nature of 2-68 pharmacy peer review committee proceedings. 2-69 (j) Reports, information, or records received and maintained 3-1 by the board pursuant to this section are considered investigative 3-2 files and are confidential and may only be released as specified in 3-3 Section 17(q) of this Act. 3-4 SECTION 3. This Act takes effect September 1, 1999. 3-5 SECTION 4. The importance of this legislation and the 3-6 crowded condition of the calendars in both houses create an 3-7 emergency and an imperative public necessity that the 3-8 constitutional rule requiring bills to be read on three several 3-9 days in each house be suspended, and this rule is hereby suspended. 3-10 * * * * *