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.
4-50 * * * * *