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.