By: Nelson, Moncrief S.B. No. 1889
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of pharmacy technicians, the
1-2 reinstatement of certain licenses related to the practice of
1-3 pharmacy, and the reporting of professional liability claims
1-4 regarding the practice of pharmacy.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subsections (a) and (o), Section 17, Texas
1-7 Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
1-8 amended to read as follows:
1-9 (a) The board is responsible for the regulation of the
1-10 practice of pharmacy in this state, including the following:
1-11 (1) the licensing by examination or by reciprocity of
1-12 applicants who are qualified to engage in the practice of pharmacy
1-13 and the licensing of pharmacies under this Act;
1-14 (2) the renewal of licenses to engage in the practice
1-15 of pharmacy and licenses to operate pharmacies;
1-16 (3) the determination and issuance of standards for
1-17 recognition and approval of degree requirements of colleges of
1-18 pharmacy whose graduates shall be eligible for licensing in this
1-19 state and the specification and enforcement of requirements for
1-20 practical training, including internship;
1-21 (4) the enforcement of those provisions of this Act
1-22 relating to the conduct or competence of pharmacists practicing in
1-23 this state and the conduct of pharmacies operating in this state
1-24 and the suspension, revocation, fining, reprimanding, cancellation,
2-1 or restriction of licenses to engage in the practice of pharmacy or
2-2 to operate a pharmacy;
2-3 (5) the specifications of conditions under which a
2-4 pharmacist may administer medications, including immunizations and
2-5 vaccinations, which at a minimum shall include the following:
2-6 (A) a licensed health care provider authorized
2-7 to administer the medication is not reasonably available to
2-8 administer the medication;
2-9 (B) failure to administer the medication, other
2-10 than an immunization or vaccination, might result in a significant
2-11 delay or interruption of a critical phase of drug therapy;
2-12 (C) the pharmacist possesses the necessary
2-13 skill, education, and certification to administer the medication as
2-14 specified by the board;
2-15 (D) the pharmacist notifies the appropriate
2-16 licensed health care provider responsible for the patient's care
2-17 within a reasonable time that the medication was administered;
2-18 (E) a pharmacist may not administer medications
2-19 to a patient where the patient resides, except in a licensed
2-20 nursing home or hospital;
2-21 (F) the pharmacist administers immunizations or
2-22 vaccinations under a physician's written protocol and meets the
2-23 standards established by the board;
2-24 (G) the authority of the pharmacist to
2-25 administer medications may not be delegated;
2-26 (H) nothing in this subdivision shall be
3-1 construed to prohibit a pharmacist from preparing or manipulating
3-2 biotechnological agents or devices; and
3-3 (I) nothing in this subdivision shall be
3-4 construed as prohibiting a pharmacist from performing an act
3-5 delegated by a physician in accordance with the provisions of
3-6 Subsection (d), Section 3.06, Medical Practice Act (Article 4495b,
3-7 Vernon's Texas Civil Statutes), and the pharmacist performing such
3-8 a delegated medical act shall be considered to be performing a
3-9 medical act and not as engaged in the practice of pharmacy;
3-10 (6) the regulation of the training, qualifications,
3-11 and employment of:
3-12 (A) pharmacist-interns; and
3-13 (B) pharmacy technicians; and
3-14 (7) the enforcement of this Act and any rules adopted
3-15 under this Act.
3-16 (o) The board:
3-17 (1) shall establish rules for the use of pharmacy
3-18 technicians and the duties of those technicians in pharmacies
3-19 licensed by the board, provided that those technicians are
3-20 responsible to and directly supervised by a pharmacist licensed by
3-21 the board;
3-22 (2) [provided however that the board] may not adopt
3-23 rules or regulations establishing ratios of pharmacists to pharmacy
3-24 technicians in Class C pharmacies; [and]
3-25 (3) shall [(2) may] determine and issue standards for
3-26 recognition and approval of training programs for pharmacy
4-1 technicians; and
4-2 (4) shall maintain a list of board-approved training
4-3 programs that meet the standards under Subdivision (3) of this
4-4 subsection.
4-5 SECTION 2. The Texas Pharmacy Act (Article 4542a-1, Vernon's
4-6 Texas Civil Statutes) is amended by adding Sections 20A and 20B to
4-7 read as follows:
4-8 Sec. 20A. QUALIFICATIONS AND SUPERVISION OF PHARMACY
4-9 TECHNICIANS; RULES. (a) In establishing rules under Section 17(o)
4-10 of this Act, the board shall:
4-11 (1) require that a pharmacy technician:
4-12 (A) have a high school diploma or a high school
4-13 equivalency certificate or be working to achieve an equivalent
4-14 diploma or certificate; and
4-15 (B) have passed a board-approved pharmacy
4-16 technician certification examination; and
4-17 (2) provide that the ratio of pharmacy technicians to
4-18 supervising pharmacists not exceed two-to-one.
4-19 (b) The board may allow a technician in a county with a
4-20 population of less than 50,000 to petition the board for a special
4-21 exemption from the technician certification requirement.
4-22 (c) The board shall adopt rules that permit a pharmacy
4-23 technician to perform only nonjudgmental technical duties under the
4-24 direct supervision of a pharmacist.
4-25 Sec. 20B. PHARMACY TECHNICIAN REGISTRATION REQUIRED. (a) A
4-26 pharmacy technician must register with the board annually or
5-1 biennially, as determined by board rule, on a form prescribed by
5-2 the board.
5-3 (b) The board may refuse to issue or renew a registration or
5-4 may suspend or revoke any registration issued by the board if the
5-5 board determines that the applicant or registrant has:
5-6 (1) violated this Act or a rule adopted under this
5-7 Act;
5-8 (2) engaged in gross immorality as that term is
5-9 defined by the rules of the board;
5-10 (3) engaged in any fraud, deceit, or
5-11 misrepresentation, as those terms are defined by the rules of the
5-12 board, in seeking a registration to act as a pharmacy technician;
5-13 (4) been convicted of a misdemeanor involving moral
5-14 turpitude or a felony;
5-15 (5) a drug or alcohol dependency;
5-16 (6) violated the Texas Controlled Substances Act
5-17 (Chapter 481, Health and Safety Code) or Texas Dangerous Drug Act
5-18 (Chapter 483, Health and Safety Code) or rules relating to those
5-19 acts, Sections 485.031-485.035, Health and Safety Code, or a rule
5-20 adopted under Section 485.011, Health and Safety Code;
5-21 (7) violated the pharmacy or drug laws or rules of
5-22 this state, another state, or the United States; or
5-23 (8) had a registration as a pharmacy technician issued
5-24 by another state revoked, surrendered, or suspended for conduct
5-25 substantially equivalent to conduct described in Subdivisions (1)
5-26 through (6) of this subsection.
6-1 (c) A certified copy of the record of a state taking action
6-2 described by Subsection (b)(8) of this section is conclusive
6-3 evidence of the action taken by the state.
6-4 (d) The board may adopt a system in which the registrations
6-5 of pharmacy technicians expire on various dates during the year.
6-6 (e) The board may adopt fees as necessary for the
6-7 registration of pharmacy technicians.
6-8 SECTION 3. Subsection (b), Section 28, Texas Pharmacy Act
6-9 (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
6-10 read as follows:
6-11 (b) A person whose pharmacy license, [or] license to
6-12 practice pharmacy, or pharmacy technician registration in this
6-13 state has been canceled, revoked, or restricted under this Act,
6-14 whether voluntarily or by action of the board, may, after 12 months
6-15 from the effective date of the cancellation, revocation, or
6-16 restriction, petition the board for reinstatement or removal of the
6-17 restriction of the license. The petition shall be in writing and
6-18 in the form prescribed by the board. A person petitioning for
6-19 reinstatement has the burden of proof. On investigation and review
6-20 of the petition, the board may in its discretion grant or deny the
6-21 petition or it may modify its original finding to reflect any
6-22 circumstances that have changed sufficiently to warrant the
6-23 modification. If such petition is denied by the board, a
6-24 subsequent petition may not be considered by the board until 12
6-25 months from the date of denial of the previous petition. The board
6-26 in its discretion may require such person to pass an examination or
7-1 examinations for reentry into the practice of pharmacy.
7-2 SECTION 4. The Texas Pharmacy Act (Article 4542a-1, Vernon's
7-3 Texas Civil Statutes) is amended by adding Section 42 to read as
7-4 follows:
7-5 Sec. 42. DUTY OF PROFESSIONAL LIABILITY INSURER TO REPORT.
7-6 (a) Every insurer or other entity providing pharmacist's
7-7 professional liability insurance, pharmacy technician professional
7-8 and supplemental liability insurance, or druggist's professional
7-9 liability insurance covering a pharmacist, pharmacy technician, or
7-10 pharmacy license holder in this state shall submit to the board the
7-11 information described in Subsections (b) and (c) of this section at
7-12 the time prescribed. The information shall be provided with
7-13 respect to a notice of claim letter or complaint filed against an
7-14 insured in a court, if the notice or complaint seeks damages
7-15 relating to the insured's conduct in providing or failing to
7-16 provide appropriate service within the scope of pharmaceutical care
7-17 or services, and with respect to settlement of a claim or lawsuit
7-18 made on behalf of the insured. If a pharmacist, pharmacy
7-19 technician, or a pharmacy licensed in this state does not carry or
7-20 is not covered by pharmacist's professional liability insurance,
7-21 pharmacy technician professional and supplemental liability
7-22 insurance, or druggist's professional liability insurance and is
7-23 insured by a nonadmitted carrier or other entity providing pharmacy
7-24 professional liability insurance that does not report under this
7-25 Act, the duty to report information under Subsections (b) and (c)
7-26 of this section is the responsibility of the pharmacist, pharmacy
8-1 technician, or pharmacy license holder.
8-2 (b) The following information must be furnished to the board
8-3 not later than the 30th day after receipt by the insurer of the
8-4 notice of claim letter or complaint from the insured:
8-5 (1) the name of the insured and the insured's Texas
8-6 pharmacy technician registration number or pharmacist or pharmacy
8-7 license number;
8-8 (2) the policy number; and
8-9 (3) a copy of the notice of claim letter or complaint.
8-10 (c) The board shall, in consultation with the Texas
8-11 Department of Insurance, adopt rules for reporting additional
8-12 information as the board may require. Other claim reports required
8-13 under state and federal law shall be considered in determining the
8-14 information to be reported, the form of the report, and frequency
8-15 of reporting under the rules. Additional information that the
8-16 board may require may include:
8-17 (1) the date of any judgment, dismissal, or
8-18 settlement;
8-19 (2) whether an appeal has been taken and by which
8-20 party; and
8-21 (3) the amount of any settlement or judgment against
8-22 the insured.
8-23 (d) An insurer reporting under this section, its agents or
8-24 employees, or the board or its employees or representatives is not
8-25 liable for damages in a suit brought by any person or entity for
8-26 reporting as required by this section or for any other action taken
9-1 under this section.
9-2 (e) Information submitted to the board under this section
9-3 and the fact that the information has been submitted to the board
9-4 may not be offered in evidence or used in any manner in the trial
9-5 of a suit described in this section.
9-6 (f) The board shall review the information relating to a
9-7 pharmacist, pharmacy technician, or pharmacy license holder against
9-8 whom at least three professional liability claims have been
9-9 reported within a five-year period in the same manner as if a
9-10 complaint against the pharmacist, pharmacy technician, or pharmacy
9-11 license holder had been made under Section 17A of this Act.
9-12 (g) The Texas Department of Insurance may impose on any
9-13 insurer subject to this Act sanctions authorized by Section 7,
9-14 Article 1.10, Insurance Code, if the insurer fails to report
9-15 information as required by this section.
9-16 SECTION 5. (a) Except as provided by Subsection (e) of this
9-17 section, this Act takes effect September 1, 1999.
9-18 (b) On or after the effective date of this Act, a pharmacy
9-19 technician must have a high school diploma, a high school
9-20 equivalency certificate, or be working to achieve an equivalent
9-21 diploma or certificate.
9-22 (c) On or after the effective date of this Act, a pharmacy
9-23 may employ a pharmacy technician only if the ratio of pharmacy
9-24 technicians to supervising pharmacists does not exceed two-to-one.
9-25 (d) The Texas State Board of Pharmacy may enforce this
9-26 section. A violation of this section is a violation of the Texas
10-1 Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes).
10-2 (e) Section 20A, Texas Pharmacy Act (Article 4542a-1,
10-3 Vernon's Texas Civil Statutes), as added by this Act, takes effect
10-4 January 1, 2001. A rule adopted under Section 20A, Texas Pharmacy
10-5 Act (Article 4542a-1, Vernon's Texas Civil Statutes), as added by
10-6 this Act, may not take effect before September 1, 2001. Section
10-7 20B, Texas Pharmacy Act (Article 4542a-1, Vernon's Texas Civil
10-8 Statutes), as added by this Act, takes effect September 1, 2001.
10-9 SECTION 6. The importance of this legislation and the
10-10 crowded condition of the calendars in both houses create an
10-11 emergency and an imperative public necessity that the
10-12 constitutional rule requiring bills to be read on three several
10-13 days in each house be suspended, and this rule is hereby suspended.