77R12665 JMM-F                          
         By Madla                                               S.B. No. 768
         Substitute the following for S.B. No. 768:
         By Coleman                                         C.S.S.B. No. 768
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the regulation of the practice of pharmacy and the
 1-3     dispensing of certain drugs.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Sections 551.003(12), (30), and (36), Occupations
 1-6     Code, are amended to read as follows:
 1-7                 (12)  "Dangerous drug" means a drug or device that:
 1-8                       (A)  is not included in Penalty Group 1, 2, 3, or
 1-9     4, Chapter 481, Health and Safety Code, and is unsafe for
1-10     self-medication; or
1-11                       (B)  bears or is required to bear the legend:
1-12                             (i)  "Caution:  federal law prohibits
1-13     dispensing without prescription" or "Rx only" or another legend
1-14     that complies with federal law; or
1-15                             (ii)  "Caution:  federal law restricts this
1-16     drug to use by or on the order of a licensed veterinarian."
1-17                 (30)  "Pharmacist-intern" means:
1-18                       (A)  an undergraduate student who is enrolled in
1-19     the professional sequence of a college of pharmacy approved by the
1-20     board and who is participating in a [school-based] board-approved
1-21     internship program; or
1-22                       (B)  a graduate of a college of pharmacy who is
1-23     participating in a board-approved internship.
1-24                 (36)  "Prescription drug" means:
 2-1                       (A)  a substance for which federal or state law
 2-2     requires a prescription before the substance may be legally
 2-3     dispensed to the public;
 2-4                       (B)  a drug or device that under federal law is
 2-5     required, before being dispensed or delivered, to be labeled with
 2-6     [either of] the statement [following statements]:
 2-7                             (i)  "Caution:  federal law prohibits
 2-8     dispensing without prescription" or "Rx only" or another legend
 2-9     that complies with federal law; or
2-10                             (ii)  "Caution:  federal law restricts this
2-11     drug to use by or on the order of a licensed veterinarian"; or
2-12                       (C)  a drug or device that is required by federal
2-13     or state statute or regulation to be dispensed on prescription or
2-14     that is restricted to use by a practitioner only.
2-15           SECTION 2. Section 559.003(d), Occupations Code, is amended
2-16     to read as follows:
2-17           (d)  If a person's license has been expired for one year or
2-18     more, the person's license is considered to have been canceled and
2-19     the person may not renew the license unless the license is the
2-20     subject of a pending investigation or disciplinary action.
2-21           SECTION 3. Section 559.053, Occupations Code, is amended to
2-22     read as follows:
2-23           Sec. 559.053.  PROGRAM HOURS REQUIRED. A license holder
2-24     satisfies the continuing education requirement by presenting
2-25     evidence satisfactory to the board of completion of at least 30
2-26     [24] hours of continuing education during the preceding 24 months
2-27     of the person's license period.
 3-1           SECTION 4. Section 560.002(a), Occupations Code, is amended
 3-2     to read as follows:
 3-3           (a)  A person may not display in or on a place of business
 3-4     the word "pharmacy" or "apothecary" in any language, any word or
 3-5     combination of words of the same or similar meaning, or a graphic
 3-6     representation that would lead or tend to lead the public to
 3-7     believe that the business is a pharmacy unless the facility is a
 3-8     pharmacy licensed under this chapter.
 3-9           SECTION 5. Section 561.005, Occupations Code, is amended to
3-10     read as follows:
3-11           Sec. 561.005.  SUSPENSION OF PHARMACY LICENSE FOR NONRENEWAL.
3-12     (a)  The board shall suspend the license and remove from the
3-13     register of licensed pharmacies the name of a pharmacy that does
3-14     not file a completed application and pay the renewal fee on or
3-15     before the date the license expires.
3-16           (b)  After review by the board, the board may determine that
3-17     Subsection (a) does not apply if the license is the subject of a
3-18     pending investigation or disciplinary action.
3-19           SECTION 6. Subchapter C, Chapter 562, Occupations Code, is
3-20     amended by adding Section 562.108 to read as follows:
3-21           Sec. 562.108.  EMERGENCY MEDICATION KITS.  (a)  A Class A or
3-22     Class C pharmacy may maintain controlled substances and dangerous
3-23     drugs in an emergency medication kit used at an institution
3-24     licensed under Chapter 242 or 252, Health and Safety Code.  The
3-25     controlled substances and dangerous drugs may be used only for the
3-26     emergency medication needs of a resident at that institution.
3-27           (b)  The board shall adopt rules relating to emergency
 4-1     medication kits, including:
 4-2                 (1)  the amount and type of dangerous drugs and
 4-3     controlled substances that may be maintained in an emergency
 4-4     medication kit;
 4-5                 (2)  procedures regarding the use of drugs from an
 4-6     emergency medication kit;
 4-7                 (3)  recordkeeping requirements; and
 4-8                 (4)  security requirements.
 4-9           SECTION 7.  Section 565.001(a), Occupations Code, is amended
4-10     to read as follows:
4-11           (a)  The board may discipline an applicant for or the holder
4-12     of a license to practice pharmacy if the board finds that the
4-13     applicant or license holder has:
4-14                 (1)  violated this subtitle or a board rule adopted
4-15     under this subtitle;
4-16                 (2)  engaged in unprofessional conduct as defined by
4-17     board rule;
4-18                 (3)  engaged in gross immorality as defined by board
4-19     rule;
4-20                 (4)  developed an incapacity that prevents the
4-21     applicant or license holder from practicing pharmacy with
4-22     reasonable skill, competence, and safety to the public;
4-23                 (5)  engaged in fraud, deceit, or misrepresentation, as
4-24     defined by board rule, in practicing pharmacy or in seeking a
4-25     license to practice pharmacy;
4-26                 (6)  been convicted of a misdemeanor involving moral
4-27     turpitude or a felony;
 5-1                 (7)  used alcohol or drugs in an intemperate manner
 5-2     that, in the board's opinion, could endanger a patient's life
 5-3     [developed a drug or alcohol dependency];
 5-4                 (8)  failed to maintain records required by this
 5-5     subtitle or failed to maintain complete and accurate records of
 5-6     purchases or disposals of drugs listed in Chapter 481 or 483,
 5-7     Health and Safety Code, or the Comprehensive Drug Abuse Prevention
 5-8     and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
 5-9                 (9)  violated any provision of:
5-10                       (A)  Chapter 481 or 483, Health and Safety Code,
5-11     or the Comprehensive Drug Abuse Prevention and Control Act of 1970
5-12     (21 U.S.C. Section 801 et seq.), or rules relating to one of those
5-13     laws;
5-14                       (B)  Section 485.031, 485.032, 485.033, 485.034,
5-15     or 485.035, Health and Safety Code;  or
5-16                       (C)  a rule adopted under Section 485.011, Health
5-17     and Safety Code;
5-18                 (10)  aided or abetted an unlicensed person in the
5-19     practice of pharmacy if the pharmacist knew or reasonably should
5-20     have known that the person was unlicensed at the time;
5-21                 (11)  refused entry into a pharmacy for an inspection
5-22     authorized by this subtitle if the pharmacist received notification
5-23     from which the pharmacist knew or reasonably should have known that
5-24     the attempted inspection was authorized;
5-25                 (12)  violated any pharmacy or drug statute or rule of
5-26     this state, another state, or the United States;
5-27                 (13)  been negligent in the practice of pharmacy;
 6-1                 (14)  failed to submit to an examination after hearing
 6-2     and being ordered to do so by the board under Section 565.052;
 6-3                 (15)  dispensed a prescription drug while acting
 6-4     outside the usual course and scope of professional practice;  or
 6-5                 (16)  had a license to practice pharmacy issued by
 6-6     another state canceled, revoked, surrendered, or suspended for
 6-7     conduct substantially equivalent to conduct described under this
 6-8     subsection.
 6-9           SECTION 8. Section 481.074(a), Health and Safety Code, is
6-10     amended to read as follows:
6-11           (a)  A pharmacist may not:
6-12                 (1)  dispense or deliver a controlled substance or
6-13     cause a controlled substance to be dispensed or delivered under the
6-14     pharmacist's direction or supervision except under a valid
6-15     prescription and in the course of professional practice;
6-16                 (2)  dispense a controlled substance if the pharmacist
6-17     knows or should have known that the prescription was issued without
6-18     a valid patient-practitioner relationship;
6-19                 (3)  fill a prescription that is not prepared or issued
6-20     as prescribed by this chapter;
6-21                 (4) [(3)]  permit or allow a person who is not a
6-22     licensed pharmacist or pharmacist intern to dispense, distribute,
6-23     or in any other manner deliver a controlled substance even if under
6-24     the supervision of a pharmacist, except that after the pharmacist
6-25     or pharmacist intern has fulfilled his professional and legal
6-26     responsibilities, a nonpharmacist may complete the actual cash or
6-27     credit transaction and delivery; or
 7-1                 (5) [(4)]  permit the delivery of a controlled
 7-2     substance to any person not known to the pharmacist, the pharmacist
 7-3     intern, or the person authorized by the pharmacist to deliver the
 7-4     controlled substance without first requiring identification of the
 7-5     person taking possession of the controlled substance, except as
 7-6     provided by Subsection (n).
 7-7           SECTION 9. Section 483.001(2), Health and Safety Code, is
 7-8     amended to read as follows:
 7-9                 (2)  "Dangerous drug" means a device or a drug that is
7-10     unsafe for self-medication and that is not included in Schedules I
7-11     through V or Penalty Groups 1 through 4 of Chapter 481 (Texas
7-12     Controlled Substances Act).  The term includes a device or a drug
7-13     that bears or is required to bear the legend:
7-14                       (A)  "Caution:  federal law prohibits dispensing
7-15     without prescription" or "Rx only" or another legend that complies
7-16     with federal law; or
7-17                       (B)  "Caution:  federal law restricts this drug
7-18     to use by or on the order of a licensed veterinarian."
7-19           SECTION 10. Section 483.021(a), Health and Safety Code, is
7-20     amended to read as follows:
7-21           (a)  A pharmacist who is requested to dispense a dangerous
7-22     drug under a prescription issued by a practitioner [described by
7-23     Section 483.001(12)(C)] shall determine, in the exercise of the
7-24     pharmacist's professional judgment, that[:]
7-25                 [(1)]  the prescription is [authentic;]
7-26                 [(2)  the prescription was issued under] a valid
7-27     prescription [patient-physician relationship; and]
 8-1                 [(3)  the prescribed drug is considered necessary for
 8-2     the treatment of illness].  A pharmacist may not dispense a
 8-3     dangerous drug if the pharmacist knows or should have known that
 8-4     the prescription was issued without a valid patient-practitioner
 8-5     relationship.
 8-6           SECTION 11.  Sections 242.615 and 252.153, Health and Safety
 8-7     Code, are repealed.
 8-8           SECTION 12.  (a)  In accordance with Section 311.031(c),
 8-9     Government Code, which gives effect to a substantive amendment
8-10     enacted by the same legislature that codifies the amended statute,
8-11     the text of Sections 559.053 and 561.005, Occupations Code, as set
8-12     out in Sections 3 and 5 of this Act, gives effect to changes made
8-13     by Chapter 1518, Acts of the 76th Legislature, Regular Session,
8-14     1999.
8-15           (b)  To the extent of any conflict, this Act prevails over
8-16     another Act of the 77th Legislature, Regular Session, 2001,
8-17     relating to nonsubstantive additions to and corrections in enacted
8-18     codes.
8-19           SECTION 13.  (a)  This Act takes effect September 1, 2001.
8-20           (b)  The change in law made by this Act to Section 559.053,
8-21     Occupations Code, requiring additional hours of continuing
8-22     education, applies only to a 24-month license period that begins on
8-23     or after the effective date of this Act.  A 24-month license period
8-24     that begins before the effective date of this Act is governed by
8-25     the law in effect immediately before the effective date of this
8-26     Act, and the former law is continued in effect for that purpose.
8-27           (c)  Not later than December 31, 2001, the Texas State Board
 9-1     of Pharmacy shall adopt the rules required by Section 562.108,
 9-2     Occupations Code, as added by this Act.
 9-3           (d)  The Texas State Board of Pharmacy may enforce a rule
 9-4     adopted under Sections 242.615 and 252.153, Health and Safety Code.
 9-5     Those rules remain in effect until the Texas State Board of
 9-6     Pharmacy adopts rules under Subsection (c) of this section.  A
 9-7     complaint, investigation, or other proceeding pending under Section
 9-8     242.615 or 252.153, Health and Safety Code, is transferred without
 9-9     change in status to the Texas State Board of Pharmacy.