1-1     By:  Nelson, Moncrief                                 S.B. No. 1889
 1-2           (In the Senate - Filed April 28, 1999; April 29, 1999, read
 1-3     first time and referred to Committee on Health Services;
 1-4     May 10, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 5, Nays 0; May 10, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1889                  By:  Nelson
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the regulation of pharmacy technicians, the
1-11     reinstatement of certain licenses related to the practice of
1-12     pharmacy, and the reporting of professional liability claims
1-13     regarding the practice of pharmacy.
1-14           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15           SECTION 1.  Subsections (a) and (o), Section 17, Texas
1-16     Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
1-17     amended to read as follows:
1-18           (a)  The board is responsible for the regulation of the
1-19     practice of pharmacy in this state, including the following:
1-20                 (1)  the licensing by examination or by reciprocity of
1-21     applicants who are qualified to engage in the practice of pharmacy
1-22     and the licensing of pharmacies under this Act;
1-23                 (2)  the renewal of licenses to engage in the practice
1-24     of pharmacy and licenses to operate pharmacies;
1-25                 (3)  the determination and issuance of standards for
1-26     recognition and approval of degree requirements of colleges of
1-27     pharmacy whose graduates shall be eligible for licensing in this
1-28     state and the specification and enforcement of requirements for
1-29     practical training, including internship;
1-30                 (4)  the enforcement of those provisions of this Act
1-31     relating to the conduct or competence of pharmacists practicing in
1-32     this state and the conduct of pharmacies operating in this state
1-33     and the suspension, revocation, fining, reprimanding, cancellation,
1-34     or restriction of licenses to engage in the practice of pharmacy or
1-35     to operate a pharmacy;
1-36                 (5)  the specifications of conditions under which a
1-37     pharmacist may administer medications, including immunizations and
1-38     vaccinations, which at a minimum shall include the following:
1-39                       (A)  a licensed health care provider authorized
1-40     to administer the medication is not reasonably available to
1-41     administer the medication;
1-42                       (B)  failure to administer the medication, other
1-43     than an immunization or vaccination, might result in a significant
1-44     delay or interruption of a critical phase of drug therapy;
1-45                       (C)  the pharmacist possesses the necessary
1-46     skill, education, and certification to administer the medication as
1-47     specified by the board;
1-48                       (D)  the pharmacist notifies the appropriate
1-49     licensed health care provider responsible for the patient's care
1-50     within a reasonable time that the medication was administered;
1-51                       (E)  a pharmacist may not administer medications
1-52     to a patient where the patient resides, except in a licensed
1-53     nursing home or hospital;
1-54                       (F)  the pharmacist administers immunizations or
1-55     vaccinations under a physician's written protocol and meets the
1-56     standards established by the board;
1-57                       (G)  the authority of the pharmacist to
1-58     administer medications may not be delegated;
1-59                       (H)  nothing in this subdivision shall be
1-60     construed to prohibit a pharmacist from preparing or manipulating
1-61     biotechnological agents or devices; and
1-62                       (I)  nothing in this subdivision shall be
1-63     construed as prohibiting a pharmacist from performing an act
1-64     delegated by a physician in accordance with the provisions of
 2-1     Subsection (d), Section 3.06, Medical Practice Act (Article 4495b,
 2-2     Vernon's Texas Civil Statutes), and the pharmacist performing such
 2-3     a delegated medical act shall be considered to be performing a
 2-4     medical act and not as engaged in the practice of pharmacy;
 2-5                 (6)  the regulation of the training, qualifications,
 2-6     and employment of:
 2-7                       (A)  pharmacist-interns; and
 2-8                       (B)  pharmacy technicians; and
 2-9                 (7)  the enforcement of this Act and any rules adopted
2-10     under this Act.
2-11           (o)  The board:
2-12                 (1)  shall establish rules for the use of pharmacy
2-13     technicians and the duties of those technicians in pharmacies
2-14     licensed by the board, provided that those technicians are
2-15     responsible to and directly supervised by a pharmacist licensed by
2-16     the board;
2-17                 (2)  [provided however that the board] may not adopt
2-18     rules or regulations establishing ratios of pharmacists to pharmacy
2-19     technicians in Class C pharmacies; [and]
2-20                 (3)  shall [(2) may] determine and issue standards for
2-21     recognition and approval of training programs for pharmacy
2-22     technicians; and
2-23                 (4)  shall maintain a list of board-approved training
2-24     programs that meet the standards under Subdivision (3) of this
2-25     subsection.
2-26           SECTION 2.  The Texas Pharmacy Act (Article 4542a-1, Vernon's
2-27     Texas Civil Statutes) is amended by adding Sections 20A and 20B to
2-28     read as follows:
2-29           Sec. 20A.  QUALIFICATIONS AND SUPERVISION OF PHARMACY
2-30     TECHNICIANS; RULES.  (a)  In establishing rules under Section 17(o)
2-31     of this Act, the board shall:
2-32                 (1)  require that a pharmacy technician:
2-33                       (A)  have a high school diploma or a high school
2-34     equivalency certificate or be working to achieve an equivalent
2-35     diploma or certificate; and
2-36                       (B)  have passed a board-approved pharmacy
2-37     technician certification examination; and
2-38                 (2)  provide that the ratio of pharmacy technicians to
2-39     supervising pharmacists not exceed two-to-one.
2-40           (b)  The board may allow a technician in a county with a
2-41     population of less than 50,000 to petition the board for a special
2-42     exemption from the technician certification requirement.
2-43           (c)  The board shall adopt rules that permit a pharmacy
2-44     technician to perform only nonjudgmental technical duties under the
2-45     direct supervision of a pharmacist.
2-46           Sec. 20B.  PHARMACY TECHNICIAN REGISTRATION REQUIRED.  (a)  A
2-47     pharmacy technician must register with the board annually or
2-48     biennially, as determined by board rule, on a form prescribed by
2-49     the board.
2-50           (b)  The board may refuse to issue or renew a registration or
2-51     may suspend or revoke any registration issued by the board if the
2-52     board determines that the applicant or registrant has:
2-53                 (1)  violated this Act or a rule adopted under this
2-54     Act;
2-55                 (2)  engaged in gross immorality as that term is
2-56     defined by the rules of the board;
2-57                 (3)  engaged in any fraud, deceit, or
2-58     misrepresentation, as those terms are defined by the rules of the
2-59     board, in seeking a registration to act as a pharmacy technician;
2-60                 (4)  been convicted of a misdemeanor involving moral
2-61     turpitude or a felony;
2-62                 (5)  a drug or alcohol dependency;
2-63                 (6)  violated the Texas Controlled Substances Act
2-64     (Chapter 481, Health and Safety Code) or Texas Dangerous Drug Act
2-65     (Chapter 483, Health and Safety Code) or rules relating to those
2-66     acts, Sections 485.031-485.035, Health and Safety Code, or a rule
2-67     adopted under Section 485.011, Health and Safety Code;
2-68                 (7)  violated the pharmacy or drug laws or rules of
2-69     this state, another state, or the United States; or
 3-1                 (8)  had a registration as a pharmacy technician issued
 3-2     by another state revoked, surrendered, or suspended for conduct
 3-3     substantially equivalent to conduct described in Subdivisions (1)
 3-4     through (6) of this subsection.
 3-5           (c)  A certified copy of the record of a state taking action
 3-6     described by Subsection (b)(8) of this section is conclusive
 3-7     evidence of the action taken by the state.
 3-8           (d)  The board may adopt a system in which the registrations
 3-9     of pharmacy technicians expire on various dates during the year.
3-10           (e)  The board may adopt fees as necessary for the
3-11     registration of pharmacy technicians.
3-12           SECTION 3.  Section 27, Texas Pharmacy Act (Article 4542a-1,
3-13     Vernon's Texas Civil Statutes), is amended to read as follows:
3-14           Sec. 27.  PROCEDURE.  (a)  Except as provided in Section 27A
3-15     of this Act, any disciplinary action taken by the board under
3-16     Section 26, 26A, or 26B of this Act is governed by the
3-17     Administrative Procedure Act (Chapter 2001, Government Code) and
3-18     the rules of practice and procedure before the board.
3-19           (b)  The Health Care Quality Improvement Act of 1986 (Pub. L.
3-20     No. 99-660) applies to a professional review action taken by a
3-21     professional review body in this state on or after September 1,
3-22     1999.
3-23           SECTION 4.  Subsection (b), Section 28, Texas Pharmacy Act
3-24     (Article 4542a-1, Vernon's Texas Civil Statutes), is amended to
3-25     read as follows:
3-26           (b)  A person whose pharmacy license, [or] license to
3-27     practice pharmacy, or pharmacy technician registration in this
3-28     state has been canceled, revoked, or restricted under this Act,
3-29     whether voluntarily or by action of the board, may, after 12 months
3-30     from the effective date of the cancellation, revocation, or
3-31     restriction, petition the board for reinstatement or removal of the
3-32     restriction of the license.  The petition shall be in writing and
3-33     in the form prescribed by the board.  A person petitioning for
3-34     reinstatement has the burden of proof.  On investigation and review
3-35     of the petition, the board may in its discretion grant or deny the
3-36     petition or it may modify its original finding to reflect any
3-37     circumstances that have changed sufficiently to warrant the
3-38     modification.  If such petition is denied by the board, a
3-39     subsequent petition may not be considered by the board until 12
3-40     months from the date of denial of the previous petition.  The board
3-41     in its discretion may require such person to pass an examination or
3-42     examinations for reentry into the practice of pharmacy.
3-43           SECTION 5.  The Texas Pharmacy Act (Article 4542a-1, Vernon's
3-44     Texas Civil Statutes) is amended by adding Section 42 to read as
3-45     follows:
3-46           Sec. 42.  DUTY OF PROFESSIONAL LIABILITY INSURER TO REPORT.
3-47     (a)  Every insurer or other entity providing pharmacist's
3-48     professional liability insurance, pharmacy technician professional
3-49     and supplemental liability insurance, or druggist's professional
3-50     liability insurance covering a pharmacist, pharmacy technician, or
3-51     pharmacy license holder in this state shall submit to the board the
3-52     information described in Subsections (b) and (c) of this section at
3-53     the time prescribed.  The information shall be provided with
3-54     respect to a notice of claim letter or complaint filed against an
3-55     insured in a court, if the notice or complaint seeks damages
3-56     relating to the insured's conduct in providing or failing to
3-57     provide appropriate service within the scope of pharmaceutical care
3-58     or services, and with respect to settlement of a claim or lawsuit
3-59     made on behalf of the insured.  If a pharmacist, pharmacy
3-60     technician, or a pharmacy licensed in this state does not carry or
3-61     is not covered by pharmacist's professional liability insurance,
3-62     pharmacy technician professional and supplemental liability
3-63     insurance, or druggist's professional liability insurance and is
3-64     insured by a nonadmitted carrier or other entity providing pharmacy
3-65     professional liability insurance that does not report under this
3-66     Act, the duty to report information under Subsections (b) and (c)
3-67     of this section is the responsibility of the pharmacist, pharmacy
3-68     technician, or pharmacy license holder.
3-69           (b)  The following information must be furnished to the board
 4-1     not later than the 30th day after receipt by the insurer of the
 4-2     notice of claim letter or complaint from the insured:
 4-3                 (1)  the name of the insured and the insured's Texas
 4-4     pharmacy technician registration number or pharmacist or pharmacy
 4-5     license number;
 4-6                 (2)  the policy number; and
 4-7                 (3)  a copy of the notice of claim letter or complaint.
 4-8           (c)  The board shall, in consultation with the Texas
 4-9     Department of Insurance, adopt rules for reporting additional
4-10     information as the board may require.  Other claim reports required
4-11     under state and federal law shall be considered in determining the
4-12     information to be reported, the form of the report, and frequency
4-13     of reporting under the rules.  Additional information that the
4-14     board may require may include:
4-15                 (1)  the date of any judgment, dismissal, or
4-16     settlement;
4-17                 (2)  whether an appeal has been taken and by which
4-18     party; and
4-19                 (3)  the amount of any settlement or judgment against
4-20     the insured.
4-21           (d)  An insurer reporting under this section, its agents or
4-22     employees, or the board or its employees or representatives is not
4-23     liable for damages in a suit brought by any person or entity for
4-24     reporting as required by this section or for any other action taken
4-25     under this section.
4-26           (e)  Information submitted to the board under this section
4-27     and the fact that the information has been submitted to the board
4-28     may not be offered in evidence or used in any manner in the trial
4-29     of a suit described in this section.
4-30           (f)  The board shall review the information relating to a
4-31     pharmacist, pharmacy technician, or pharmacy license holder against
4-32     whom at least three professional liability claims have been
4-33     reported within a five-year period in the same manner as if a
4-34     complaint against the pharmacist, pharmacy technician, or pharmacy
4-35     license holder had been made under Section 17A of this Act.
4-36           (g)  The Texas Department of Insurance may impose on any
4-37     insurer subject to this Act sanctions authorized by Section 7,
4-38     Article 1.10, Insurance Code, if the insurer fails to report
4-39     information as required by this section.
4-40           SECTION 6.  (a)  Except as provided by Subsection (b) of this
4-41     section, this Act takes effect September 1, 1999.
4-42           (b)  Section 20B, Texas Pharmacy Act (Article 4542a-1,
4-43     Vernon's Texas Civil Statutes), as added by this Act, takes effect
4-44     January 1, 2001.
4-45           SECTION 7.  The importance of this legislation and the
4-46     crowded condition of the calendars in both houses create an
4-47     emergency and an imperative public necessity that the
4-48     constitutional rule requiring bills to be read on three several
4-49     days in each house be suspended, and this rule is hereby suspended.
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