By Madden H.B. No. 2695 77R1513 JRD-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the return to the dispensing pharmacy of unused 1-3 prescription drugs for which the state paid all or part of the cost 1-4 by a convalescent or nursing home. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Subchapter N, Chapter 242, Health and Safety Code, 1-7 is amended by adding Sections 242.6035, 242.6036, and 242.6037 to 1-8 read as follows: 1-9 Sec. 242.6035. RETURNING CERTAIN UNUSED MEDICATION. (a) An 1-10 institution shall, in accordance with this section, return to the 1-11 dispensing pharmacy certain medication that requires a prescription 1-12 and that will not be used by the resident for whom the medication 1-13 was dispensed if the state paid all or part of the cost of the 1-14 medication under the state Medicaid program or any other program. 1-15 (b) The dispensing pharmacy to which the medication is 1-16 returned may, in accordance with this section, redispense the 1-17 medication. 1-18 (c) An institution may return medication that requires a 1-19 prescription to the dispensing pharmacy under this section and the 1-20 dispensing pharmacy may redispense the medication under this 1-21 section only if the medication: 1-22 (1) is not a controlled substance under Chapter 481; 1-23 (2) is sealed in the manufacturer's unopened original 1-24 tamper-evident packaging; and 2-1 (3) is returned to the dispensing pharmacy in time for 2-2 the medication to be redispensed by the pharmacy either before the 2-3 expiration date or within the recommended shelf life of the 2-4 medication, as applicable. 2-5 (d) An institution that returns medication under this 2-6 section shall use appropriate safeguards to ensure that the 2-7 medication is not compromised or illegally diverted during its 2-8 return. 2-9 Sec. 242.6036. REIMBURSEMENT FOR RETURNED UNUSED MEDICATION. 2-10 (a) This section applies only in relation to unused medication 2-11 returned under Section 242.6035. 2-12 (b) A person who was paid by the state for the medication 2-13 shall pay or credit the state, on the return of the medication to 2-14 the dispensing pharmacy, for the full amount that the state paid 2-15 for the medication. 2-16 (c) If the state paid the returning institution for the 2-17 medication, the institution may deduct from the amount it pays or 2-18 credits the state under this section a reasonable amount not to 2-19 exceed the actual cost incurred by the institution in returning 2-20 the medication to the dispensing pharmacy. If the state paid the 2-21 dispensing pharmacy for the medication, the dispensing pharmacy may 2-22 deduct from the amount it pays or credits the state under this 2-23 section a reasonable amount not to exceed the actual cost incurred 2-24 by the dispensing pharmacy in originally sending the medication to 2-25 the institution. 2-26 (d) To the extent possible, the department and the Health 2-27 and Human Services Commission shall ensure that the state's claims 3-1 for reimbursement under this section are adjudicated and paid or 3-2 credited electronically, especially when the state paid for the 3-3 medication electronically. 3-4 Sec. 242.6037. RULES; PROCEDURES; RECORDKEEPING. (a) This 3-5 section applies only in relation to unused medication returned 3-6 under Section 242.6035 and in relation to reimbursement under 3-7 Section 242.6036. 3-8 (b) An institution or dispensing pharmacy affected by 3-9 Sections 242.6035 and 242.6036 shall establish procedures necessary 3-10 to allow the institution or dispensing pharmacy to effectively and 3-11 efficiently comply with those laws and with applicable rules 3-12 adopted by a state agency under this section. 3-13 (c) An institution or dispensing pharmacy affected by 3-14 Sections 242.6035 and 242.6036 shall keep accurate records relating 3-15 to returned medications in the manner and for the period prescribed 3-16 by rule of the Texas State Board of Pharmacy, including records 3-17 regarding amounts charged, paid, or received in connection with the 3-18 returned medication. 3-19 (d) The Texas State Board Of Pharmacy shall adopt rules to 3-20 implement this section and Sections 242.6035 and 242.6036 that are 3-21 necessary to protect the public health, safety, and welfare. The 3-22 rules must address: 3-23 (1) records that an institution or dispensing pharmacy 3-24 must keep under Subsection (c), including records that will allow 3-25 the appropriate authorities to determine whether returned 3-26 medication is redispensed safely and by legal and appropriate 3-27 means; and 4-1 (2) in appropriate detail, situations in which it is 4-2 normally presumed to be safe and allowed and situations in which it 4-3 is presumed to be unsafe and not allowed for a pharmacy to 4-4 redispense medications returned under Section 242.6035, including 4-5 situations in which medications may not be redispensed because 4-6 there is reason to believe the medication could be subpotent or 4-7 could have been compromised or illegally diverted. 4-8 (e) The department shall adopt rules to ensure that each 4-9 institution establishes appropriate procedures necessary to allow 4-10 the institution to effectively and efficiently comply with this 4-11 section, Sections 242.6035 and 242.6036, and applicable rules 4-12 adopted by a state agency under this section. The rules must 4-13 address procedures by which an institution may effectively identify 4-14 medication for which the state paid all or part of the cost and 4-15 which the institution has a duty to return under Section 242.6035. 4-16 (f) The Health and Human Services Commission, or the 4-17 department at the direction of the commission, shall adopt rules to 4-18 ensure that the state is promptly and efficiently paid or credited 4-19 the correct amount for returned medications for which the state 4-20 paid all or part of the cost. 4-21 SECTION 2. Section 431.021, Health and Safety Code, is 4-22 amended to read as follows: 4-23 Sec. 431.021. PROHIBITED ACTS. The following acts and the 4-24 causing of the following acts within this state are unlawful and 4-25 prohibited: 4-26 (a) the introduction or delivery for introduction into 4-27 commerce of any food, drug, device, or cosmetic that is adulterated 5-1 or misbranded; 5-2 (b) the adulteration or misbranding of any food, drug, 5-3 device, or cosmetic in commerce; 5-4 (c) the receipt in commerce of any food, drug, device, 5-5 or cosmetic that is adulterated or misbranded, and the delivery or 5-6 proffered delivery thereof for pay or otherwise; 5-7 (d) the distribution in commerce of a consumer 5-8 commodity, if such commodity is contained in a package, or if there 5-9 is affixed to that commodity a label that does not conform to the 5-10 provisions of this chapter and of rules adopted under the authority 5-11 of this chapter; provided, however, that this prohibition shall not 5-12 apply to persons engaged in business as wholesale or retail 5-13 distributors of consumer commodities except to the extent that such 5-14 persons: 5-15 (1) are engaged in the packaging or labeling of 5-16 such commodities; or 5-17 (2) prescribe or specify by any means the manner 5-18 in which such commodities are packaged or labeled; 5-19 (e) the introduction or delivery for introduction into 5-20 commerce of any article in violation of Section 431.084, 431.114, 5-21 or 431.115; 5-22 (f) the dissemination of any false advertisement; 5-23 (g) the refusal to permit entry or inspection, or to 5-24 permit the taking of a sample or to permit access to or copying of 5-25 any record as authorized by Sections 431.042-431.044; or the 5-26 failure to establish or maintain any record or make any report 5-27 required under Section 512(j), (l), or (m) of the federal Act, or 6-1 the refusal to permit access to or verification or copying of any 6-2 such required record; 6-3 (h) the manufacture within this state of any food, 6-4 drug, device, or cosmetic that is adulterated or misbranded; 6-5 (i) the giving of a guaranty or undertaking referred 6-6 to in Section 431.059, which guaranty or undertaking is false, 6-7 except by a person who relied on a guaranty or undertaking to the 6-8 same effect signed by, and containing the name and address of the 6-9 person residing in this state from whom the person received in good 6-10 faith the food, drug, device, or cosmetic; or the giving of a 6-11 guaranty or undertaking referred to in Section 431.059, which 6-12 guaranty or undertaking is false; 6-13 (j) the use, removal, or disposal of a detained or 6-14 embargoed article in violation of Section 431.048; 6-15 (k) the alteration, mutilation, destruction, 6-16 obliteration, or removal of the whole or any part of the labeling 6-17 of, or the doing of any other act with respect to a food, drug, 6-18 device, or cosmetic, if such act is done while such article is held 6-19 for sale after shipment in commerce and results in such article 6-20 being adulterated or misbranded; 6-21 (l)(1) forging, counterfeiting, simulating, or falsely 6-22 representing, or without proper authority using any mark, stamp, 6-23 tag, label, or other identification device authorized or required 6-24 by rules adopted under this chapter or the regulations promulgated 6-25 under the provisions of the federal Act; 6-26 (2) making, selling, disposing of, or keeping in 6-27 possession, control, or custody, or concealing any punch, die, 7-1 plate, stone, or other thing designed to print, imprint, or 7-2 reproduce the trademark, trade name, or other identifying mark, 7-3 imprint, or device of another or any likeness of any of the 7-4 foregoing on any drug or container or labeling thereof so as to 7-5 render such drug a counterfeit drug; 7-6 (3) the doing of any act that causes a drug to 7-7 be a counterfeit drug, or the sale or dispensing, or the holding 7-8 for sale or dispensing, of a counterfeit drug; 7-9 (m) the using by any person to the person's own 7-10 advantage, or revealing, other than to the commissioner, an 7-11 authorized agent, a health authority or to the courts when relevant 7-12 in any judicial proceeding under this chapter, of any information 7-13 acquired under the authority of this chapter concerning any method 7-14 or process that as a trade secret is entitled to protection; 7-15 (n) the using, on the labeling of any drug or device 7-16 or in any advertising relating to such drug or device, of any 7-17 representation or suggestion that approval of an application with 7-18 respect to such drug or device is in effect under Section 431.114 7-19 or Section 505, 515, or 520(g) of the federal Act, as the case may 7-20 be, or that such drug or device complies with the provisions of 7-21 such sections; 7-22 (o) the using, in labeling, advertising or other sales 7-23 promotion of any reference to any report or analysis furnished in 7-24 compliance with Sections 431.042-431.044 or Section 704 of the 7-25 federal Act; 7-26 (p) in the case of a prescription drug distributed or 7-27 offered for sale in this state, the failure of the manufacturer, 8-1 packer, or distributor of the drug to maintain for transmittal, or 8-2 to transmit, to any practitioner licensed by applicable law to 8-3 administer such drug who makes written request for information as 8-4 to such drug, true and correct copies of all printed matter that is 8-5 required to be included in any package in which that drug is 8-6 distributed or sold, or such other printed matter as is approved 8-7 under the federal Act. Nothing in this subsection shall be 8-8 construed to exempt any person from any labeling requirement 8-9 imposed by or under other provisions of this chapter; 8-10 (q)(1) placing or causing to be placed on any drug or 8-11 device or container of any drug or device, with intent to defraud, 8-12 the trade name or other identifying mark, or imprint of another or 8-13 any likeness of any of the foregoing; 8-14 (2) selling, dispensing, disposing of or causing 8-15 to be sold, dispensed, or disposed of, or concealing or keeping in 8-16 possession, control, or custody, with intent to sell, dispense, or 8-17 dispose of, any drug, device, or any container of any drug or 8-18 device, with knowledge that the trade name or other identifying 8-19 mark or imprint of another or any likeness of any of the foregoing 8-20 has been placed thereon in a manner prohibited by Subdivision (1) 8-21 of this subsection; or 8-22 (3) making, selling, disposing of, causing to be 8-23 made, sold, or disposed of, keeping in possession, control, or 8-24 custody, or concealing with intent to defraud any punch, die, 8-25 plate, stone, or other thing designed to print, imprint, or 8-26 reproduce the trademark, trade name, or other identifying mark, 8-27 imprint, or device of another or any likeness of any of the 9-1 foregoing on any drug or container or labeling of any drug or 9-2 container so as to render such drug a counterfeit drug; 9-3 (r) dispensing or causing to be dispensed a different 9-4 drug in place of the drug ordered or prescribed without the express 9-5 permission in each case of the person ordering or prescribing; 9-6 (s) the failure to register in accordance with Section 9-7 510 of the federal Act, the failure to provide any information 9-8 required by Section 510(j) or (k) of the federal Act, or the 9-9 failure to provide a notice required by Section 510(j)(2) of the 9-10 federal Act; 9-11 (t)(1) the failure or refusal to: 9-12 (A) comply with any requirement prescribed 9-13 under Section 518 or 520(g) of the federal Act; or 9-14 (B) furnish any notification or other 9-15 material or information required by or under Section 519 or 520(g) 9-16 of the federal Act; 9-17 (2) with respect to any device, the submission 9-18 of any report that is required by or under this chapter that is 9-19 false or misleading in any material respect; 9-20 (u) the movement of a device in violation of an order 9-21 under Section 304(g) of the federal Act or the removal or 9-22 alteration of any mark or label required by the order to identify 9-23 the device as detained; 9-24 (v) the failure to provide the notice required by 9-25 Section 412(b) or 412(c), the failure to make the reports required 9-26 by Section 412(d)(1)(B), or the failure to meet the requirements 9-27 prescribed under Section 412(d)(2) of the federal Act; 10-1 (w) except as provided under Sections 242.6035, 10-2 242.6036, and 242.6037, the acceptance by a person of an unused 10-3 prescription or drug, in whole or in part, for the purpose of 10-4 resale, after the prescription or drug has been originally 10-5 dispensed, or sold; 10-6 (x) engaging in the wholesale distribution of drugs or 10-7 operating as a distributor or manufacturer of devices in this state 10-8 without filing a licensing statement with the commissioner as 10-9 required by Section 431.202 or having a license as required by 10-10 Section 431.272, as applicable; 10-11 (y) engaging in the manufacture of food in this state 10-12 without first registering with the department as required by 10-13 Section 431.222; or 10-14 (z) unless approved by the United States Food and Drug 10-15 Administration pursuant to the federal Act, the sale, delivery, 10-16 holding, or offering for sale of a self-testing kit designed to 10-17 indicate whether a person has a human immunodeficiency virus 10-18 infection, acquired immune deficiency syndrome, or a related 10-19 disorder or condition. 10-20 SECTION 3. Sections 242.6035, 242.6036, and 242.6037, Health 10-21 and Safety Code, as added by this Act, and the change in law made 10-22 by this Act to Section 431.021, Health and Safety Code, take effect 10-23 January 1, 2002. This Act takes effect September 1, 2001, for the 10-24 limited purpose of allowing the Texas State Board of Pharmacy, the 10-25 Texas Department of Human Services, and, if applicable, the Health 10-26 and Human Services Commission to timely adopt the rules required 10-27 under Section 242.6037, Health and Safety Code, as added by this 11-1 Act. Those agencies shall adopt the required rules in time for the 11-2 rules to take effect on January 1, 2002.