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79R715 JTS-D
By: Truitt H.B. No. 1040
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas State Board
of Pharmacy.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 551.005, Occupations Code, is amended to
read as follows:
Sec. 551.005. APPLICATION OF SUNSET ACT. The Texas State
Board of Pharmacy is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the board is abolished and this subtitle expires September
1, 2017 [2005].
SECTION 2. Section 552.117, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) With regard to a pharmacist or owner of a pharmacy
licensed under Subtitle J, Title 3, Occupations Code, the person's
home address, home telephone number, or both, are excepted from the
requirements of Section 552.021 if the person has designated the
information as confidential under Section 555.001(d) of that code.
SECTION 3. Section 551.003(42), Occupations Code, is
amended to read as follows:
(42) "Texas trade association" means a [nonprofit,]
cooperative[,] and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
SECTION 4. Section 552.004, Occupations Code, is amended to
read as follows:
Sec. 552.004. MEMBERSHIP RESTRICTIONS. (a) A person may
not be a member of [serve on] the board if the person is required to
register as a lobbyist under Chapter 305, Government Code, because
of the person's activities for compensation on behalf of a
profession related to the operation of the board.
(b) A person may not be a [pharmacist] member of the board if
[may not be]:
(1) the person is [a salaried faculty member at a
college of pharmacy; or
[(2)] an officer, employee, or paid consultant of a
Texas trade association in the field of health care; or
(2) the person's spouse is [of] an officer, manager
[employee], or paid consultant of a Texas trade association in the
field of health care.
SECTION 5. Section 552.006, Occupations Code, is amended to
read as follows:
Sec. 552.006. BOARD MEMBER TRAINING. (a) A person who is
appointed to and qualifies for office as a member of the board may
not vote, deliberate, or be counted as a member in attendance at a
meeting of the board until the person completes a training program
that complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this subtitle and the programs, functions, rules,
and budget of the board;
(2) the results of the most recent formal audit of the
board;
(3) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts-of-interest; and
(4) any applicable ethics policies adopted by the
board or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office. [Each board member shall
comply with the board member training requirements established by
any other state agency with authority to establish the requirements
for the board.]
SECTION 6. Section 552.007(a), Occupations Code, is amended
to read as follows:
(a) The governor shall designate a member of the board as
the president of the board to serve in that capacity at the pleasure
of the governor. The board shall elect from its members for
one-year terms a [president,] vice president, treasurer, and other
officers the board considers appropriate and necessary to conduct
board business.
SECTION 7. Section 552.009(b), Occupations Code, is amended
to read as follows:
(b) A member is entitled to reimbursement for travel
[transportation] expenses as prescribed by the General
Appropriations Act. [A member may not receive reimbursement for
any other travel expenses, including expenses for meals and
lodging.]
SECTION 8. Section 553.005, Occupations Code, is amended to
read as follows:
Sec. 553.005. EMPLOYEE RESTRICTIONS. (a) A person may not
be an employee of the board employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of health care;
or
(2) the person's spouse is an [An] officer, manager
[employee], or paid consultant of a Texas trade association in the
field of health care [may not be an employee of the board who is
exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule].
(b) [A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of health
care may not be an employee of the board who is exempt from the
state's position classification plan or is compensated at or above
the amount prescribed by the General Appropriations Act for step 1,
salary group A17, of the position classification salary schedule.
[(c)] A person may not act as general counsel to the board if
the person is required to register as a lobbyist under Chapter 305,
Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the board.
SECTION 9. Section 554.001, Occupations Code, is amended by
adding Subsection (e) to read as follows:
(e) The board shall develop formal policies outlining the
structure, role, and responsibilities of each committee
established under Subsection (b)(2) that contains board members.
The board may adopt rules to implement this subsection.
SECTION 10. Section 554.007, Occupations Code, is amended
to read as follows:
Sec. 554.007. FUNDS[; STATE PHARMACY ACCOUNT]. (a) The
board shall deposit revenue[, other than an administrative
penalty,] collected under this subtitle to the credit of the [state
pharmacy account in the] general revenue fund.
(b) The board may receive and spend money from a party,
other than the state, in addition to money collected under
Subsection (a), in accordance with state law.
[(c) The board shall pay the expense of administering this
subtitle out of the state pharmacy account.]
SECTION 11. Section 555.001, Occupations Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) The board shall provide on its website a list of all
Internet pharmacies licensed by the board and shall provide
information about each pharmacy, including the pharmacy's name,
license number, and state of physical location. In this
subsection, an Internet pharmacy is a pharmacy physically located
in this state or another state that:
(1) dispenses a prescription drug or device under a
prescription drug order in response to a request received by way of
the Internet to dispense the drug or device; and
(2) delivers the drug or device to a patient in this
state by United States mail, common carrier, or delivery service.
(d) A pharmacist or pharmacy owner may request that the
board designate the pharmacist's or owner's home address, home
telephone number, or both as confidential and not post the
information on the board's Internet site or in the board's licensure
verification database or otherwise make the information available
to the public. For each pharmacist or pharmacy owner who makes a
request for confidentiality under this subsection, the board shall
comply with the request and maintain an address of record or
business address that the board may post and that is subject to
disclosure under the public information law, Chapter 552,
Government Code.
SECTION 12. Section 555.005, Occupations Code, is amended
to read as follows:
Sec. 555.005. RECORDS OF COMPLAINTS. For each complaint
received by the board, the board shall maintain information about
parties to the complaint, the subject matter of the complaint, a
summary of the results of the review or investigation of the
complaint, and its disposition. [The board shall keep an
information file about each complaint filed with the board. The
information file must be kept current and contain a record for each
complaint of:
[(1) each person contacted in relation to the
complaint;
[(2) a summary of the results of the review or
investigation of the complaint;
[(3) an explanation of the reason the complaint was
closed without action if the board did not take action;
[(4) the schedule for disposing of the complaint
prepared as required by Section 555.007(b) and a notation of any
change in the schedule; and
[(5) other relevant information.]
SECTION 13. Section 555.007, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) The board shall adopt policies and procedures
concerning the investigation of a complaint filed with the board.
The policies and procedures must:
(1) determine the seriousness of the complaint;
(2) ensure that a complaint is not closed without
appropriate consideration;
(3) ensure that a letter is sent to the person who
filed the complaint explaining the action taken on the complaint;
(4) ensure that the person who filed the complaint has
an opportunity to explain the allegations made in the complaint;
[and]
(5) prescribe guidelines concerning the types of
complaints that require the use of a private investigator and the
procedures for the board to obtain the services of a private
investigator; and
(6) allow appropriate employees of the board to
dismiss a complaint if an investigation shows that:
(A) no violation occurred; or
(B) the subject of the complaint is outside the
board's jurisdiction.
(c) At each public meeting of the board, the executive
director shall report to the board each complaint dismissed under
Subsection (a)(6) since the board's last public meeting.
SECTION 14. Section 556.054, Occupations Code, is amended
to read as follows:
Sec. 556.054. LIMITATION ON INSPECTION. (a) Except as
provided by Subsection (b), unless [Unless] the owner, pharmacist,
or agent in charge of a facility consents in writing, an inspection
of the facility authorized by this chapter may not extend to:
(1) financial data;
(2) sales data, other than shipment data; or
(3) pricing data.
(b) The board may inspect and copy financial, pricing, or
sales data if the board has reasonable cause to investigate a
pharmacy or pharmacist for illegally dispensing drugs or for
violating this subtitle or a board rule and the data is relevant to
that investigation.
(c) Data inspected under Subsection (b) is subject to public
disclosure only if it is used by the board in a disciplinary action.
If the board determines that a pharmacy or pharmacist has not
illegally dispensed drugs or violated this subtitle or a board
rule, the board shall maintain the confidentiality of the data.
SECTION 15. Subchapter B, Chapter 558, Occupations Code, is
amended by adding Section 558.058 to read as follows:
Sec. 558.058. ACCESSIBILITY OF EXAMINATION. The board by
rule shall ensure that an examination under this subchapter is
administered to applicants with disabilities in compliance with the
Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et
seq.).
SECTION 16. Subchapter B, Chapter 558, Occupations Code, is
amended by adding Section 558.059 to read as follows:
Sec. 558.059. EXAMINATION FEE REFUND. (a) The board may
retain all or part of an examination fee paid by an applicant who is
unable to take the examination.
(b) The board shall adopt policies allowing the board to
refund the examination fee paid by an applicant who:
(1) provides advance notice of the applicant's
inability to take the examination; or
(2) is unable to take the examination because of an
emergency.
(c) The board's policy must establish the required
notification period and the emergencies that warrant a refund.
(d) The board shall make efforts to ensure that the policy
does not conflict with the policy of a national testing body
involved in administering the examination.
SECTION 17. Section 558.101, Occupations Code, is amended
to read as follows:
Sec. 558.101. QUALIFICATIONS FOR LICENSE BY RECIPROCITY.
(a) To qualify for a license to practice pharmacy, an applicant for
licensing by reciprocity must:
(1) submit to the board:
(A) a reciprocity fee set by the board; and
(B) a completed application in the form
prescribed by the board, given under oath;
(2) be of good moral character;
(3) have graduated and received a professional
practice degree, as defined by board rule, from an accredited
pharmacy degree program approved by the board;
(4) [have possessed, at the time of initial licensing
as a pharmacist, other qualifications necessary to have been
eligible for licensing at that time in this state;
[(5)] have presented to the board:
(A) proof of current or initial licensing by
examination; and
(B) proof that the current license and any other
license granted to the applicant by another state has not been
restricted, suspended, revoked, or surrendered for any reason; and
(5) [(6)] pass the Texas Pharmacy Jurisprudence
examination.
(b) An applicant is not eligible for licensing by
reciprocity unless the state in which the applicant is currently or
was initially licensed as a pharmacist grants reciprocal licensing
to pharmacists licensed by examination in this state, under like
circumstances and conditions.
SECTION 18. Sections 559.003(b), (c), and (d), Occupations
Code, are amended to read as follows:
(b) A person whose license has been expired for 90 days or
less may renew the expired license by paying to the board [the
required renewal fee and] a renewal fee that is equal to one and
one-half times the normally required renewal [of the examination]
fee for the license.
(c) A person whose license has been expired for more than 90
days but less than one year may renew the expired license by paying
to the board [all unpaid renewal fees and] a renewal fee that is
equal to two times the normally required renewal [examination] fee
for the license.
(d) A person whose [If a person's] license has been expired
for one year or more[, the person's license is considered to have
been canceled and the person] may not renew the license. The person
may obtain a new license by complying with the requirements and
procedures for obtaining an original license, including the
examination requirement [unless the license is the subject of a
pending investigation or disciplinary action].
SECTION 19. Section 560.052, Occupations Code, is amended
by amending Subsection (c) and adding Subsection (f) to read as
follows:
(c) To qualify for a Class E pharmacy license, an applicant,
in addition to satisfying the other requirements of this chapter,
must provide to the board:
(1) evidence that the applicant holds a pharmacy
license, registration, or permit in good standing issued by the
state in which the pharmacy is located;
(2) the name of the owner and pharmacist-in-charge of
the pharmacy for service of process;
(3) evidence of the applicant's ability to provide to
the board a record of a prescription drug order dispensed by the
applicant to a resident of this state not later than 72 hours after
the time the board requests the record; [and]
(4) an affidavit by the pharmacist-in-charge that
states that the pharmacist has read and understands the laws and
rules relating to a Class E pharmacy;
(5) proof of creditworthiness; and
(6) an inspection report issued:
(A) not more than two years before the date the
license application is received; and
(B) by the pharmacy licensing board in the state
of the pharmacy's physical location, except as provided by
Subsection (f).
(f) A Class E pharmacy may submit an inspection report
issued by an entity other than the pharmacy licensing board of the
state in which the pharmacy is physically located if:
(1) the state's licensing board does not conduct
inspections;
(2) the inspection is substantively equivalent to an
inspection conducted by the board, as determined by board rule; and
(3) the inspecting entity meets specifications
adopted by the board for inspecting entities.
SECTION 20. Section 561.003, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (c), (d), and (e)
to read as follows:
(a) The board by rule shall establish:
(1) procedures to be followed for renewal of a
pharmacy license;
(2) the fees to be paid for renewal of a pharmacy
license; and
(3) [penalties for late renewal of a pharmacy license;
and
[(4)] the standards in each classification that each
pharmacy and the pharmacy's employees involved in the practice of
pharmacy must meet to qualify for relicensing as a pharmacy.
(c) A pharmacy whose license has been expired for 90 days or
less may renew the expired license by paying to the board a renewal
fee that is equal to one and one-half times the normally required
renewal fee for the license.
(d) A pharmacy whose license has been expired for more than
90 days but less than one year may renew the expired license by
paying to the board a renewal fee that is equal to two times the
normally required renewal fee for the license.
(e) If a pharmacy's license has been expired for one year or
more, the pharmacy may not renew the license. The pharmacy may
obtain a new license by complying with the requirements and
procedures for obtaining an original license.
SECTION 21. Chapter 561, Occupations Code, is amended by
adding Section 561.0031 to read as follows:
Sec. 561.0031. ADDITIONAL RENEWAL REQUIREMENT FOR CLASS E
PHARMACY. (a) In addition to the renewal requirements under
Section 561.003, the board shall require that a Class E pharmacy
have on file with the board an inspection report issued:
(1) not more than three years before the date the
renewal application is received; and
(2) by the pharmacy licensing board in the state of the
pharmacy's physical location, except as provided by Subsection (b).
(b) A Class E pharmacy may have on file with the board an
inspection report issued by an entity other than the pharmacy
licensing board of the state in which the pharmacy is physically
located if the requirements of Section 560.052(f) are met.
SECTION 22. Subchapter B, Chapter 562, Occupations Code, is
amended by adding Section 562.056 to read as follows:
Sec. 562.056. PHYSICIAN-PATIENT RELATIONSHIP REQUIRED. (a)
Before dispensing a prescription, a pharmacist shall determine, in
the exercise of sound professional judgment, that the prescription
is a valid prescription. A pharmacist may not dispense a
prescription drug if the pharmacist knows or should know that the
prescription was issued on the basis of an Internet-based or
telephonic consultation without a valid physician-patient
relationship, as that relationship is defined by the Texas State
Board of Medical Examiners in relation to the use of the Internet in
medical practice.
(b) Subsection (a) does not prohibit a pharmacist from
dispensing a prescription when a valid physician-patient
relationship is not present in an emergency.
SECTION 23. Subchapter C, Chapter 562, Occupations Code, is
amended by adding Section 562.111 to read as follows:
Sec. 562.111. PHYSICIAN-PATIENT RELATIONSHIP REQUIRED.
(a) A pharmacy shall ensure that its agents and employees, before
dispensing a prescription, determine in the exercise of sound
professional judgment that the prescription is a valid
prescription. A pharmacy may not dispense a prescription drug if an
agent or employee of the pharmacy knows or should know that the
prescription was issued on the basis of an Internet-based or
telephonic consultation without a valid physician-patient
relationship, as that relationship is defined by the Texas State
Board of Medical Examiners in relation to the use of the Internet in
medical practice.
(b) Subsection (a) does not prohibit a pharmacy from
dispensing a prescription when a valid physician-patient
relationship is not present in an emergency.
SECTION 24. Section 562.1045, Occupations Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) A pharmacy subject to this section shall post:
(1) on its initial home page general information on
how to file a complaint about the pharmacy with the board; and
(2) specific information on how to file a complaint
with the board not more than two links away from its initial home
page.
(d) Information under Subsection (c) must include the
board's telephone number, mailing address, and Internet website
address.
SECTION 25. Section 564.051(c), Occupations Code, is
amended to read as follows:
(c) Funds and surcharges collected under this section shall
be deposited in the general revenue fund [account created under
Section 554.007] and may only be used by the board to administer the
program authorized by this section, including providing for initial
evaluation and referral of an impaired pharmacist or pharmacy
student by a qualified health professional and paying the
administrative costs incurred by the board in connection with that
funding. The money may not be used for costs incurred for treatment
or rehabilitation after initial evaluation and referral.
SECTION 26. Section 565.001(a), Occupations Code, is
amended to read as follows:
(a) The board may discipline an applicant for or the holder
of a license to practice pharmacy if the board finds that the
applicant or license holder has:
(1) violated this subtitle or a board rule adopted
under this subtitle;
(2) engaged in unprofessional conduct as defined by
board rule;
(3) engaged in gross immorality as defined by board
rule;
(4) developed an incapacity that prevents the
applicant or license holder from practicing pharmacy with
reasonable skill, competence, and safety to the public;
(5) engaged in fraud, deceit, or misrepresentation, as
defined by board rule, in practicing pharmacy or in seeking a
license to practice pharmacy;
(6) been convicted of or placed on deferred
adjudication community supervision or deferred disposition or the
applicable federal equivalent for:
(A) a misdemeanor:
(i) involving moral turpitude; or
(ii) under Chapter 481 or 483, Health and
Safety Code, or the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (21 U.S.C. Section 801 et seq.); or
(B) a felony;
(7) used alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(8) failed to maintain records required by this
subtitle or failed to maintain complete and accurate records of
purchases or disposals of drugs listed in Chapter 481 or 483, Health
and Safety Code, or the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(9) violated any provision of:
(A) Chapter 481 or 483, Health and Safety Code,
or the Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. Section 801 et seq.), or rules relating to one of those
laws; or
(B) Section 485.031, 485.032, 485.033, or
485.034, Health and Safety Code;
(10) aided or abetted an unlicensed person in the
practice of pharmacy if the pharmacist knew or reasonably should
have known that the person was unlicensed at the time;
(11) refused entry into a pharmacy for an inspection
authorized by this subtitle if the pharmacist received notification
from which the pharmacist knew or reasonably should have known that
the attempted inspection was authorized;
(12) violated any pharmacy or drug statute or rule of
this state, another state, or the United States;
(13) been negligent in the practice of pharmacy;
(14) failed to submit to an examination after hearing
and being ordered to do so by the board under Section 565.052;
(15) dispensed a prescription drug while acting
outside the usual course and scope of professional practice; [or]
(16) been disciplined by the regulatory board of
another state [had a license to practice pharmacy issued by another
state canceled, revoked, surrendered, or suspended] for conduct
substantially equivalent to conduct described under this
subsection;
(17) violated a board order, including a confidential
order or contract under the program to aid impaired pharmacists and
pharmacy students under Chapter 564;
(18) failed to adequately supervise a task delegated
to a pharmacy technician;
(19) inappropriately delegated a task delegated to a
pharmacy technician; or
(20) been responsible for a drug audit shortage.
SECTION 27. Section 565.002, Occupations Code, is amended
to read as follows:
Sec. 565.002. APPLICANT FOR OR HOLDER OF PHARMACY LICENSE.
(a) The board may discipline an applicant for or the holder of a
pharmacy license, including a Class E pharmacy license, if the
board finds that the applicant or license holder has:
(1) been convicted of or placed on deferred
adjudication community supervision or deferred disposition or the
applicable federal equivalent for:
(A) a misdemeanor:
(i) involving moral turpitude; or
(ii) under Chapter 481 or 483, Health and
Safety Code, or the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (21 U.S.C. Section 801 et seq.); or
(B) a felony [or, if the applicant or license
holder is a legal business entity, that a managing officer of the
applicant or license holder has been convicted of a misdemeanor
involving moral turpitude or a felony under the law of this state,
another state, or the United States];
(2) advertised a prescription drug or device in a
deceitful, misleading, or fraudulent manner;
(3) violated any provision of this subtitle or any
rule adopted under this subtitle or that an owner or employee of a
pharmacy has violated any provision of this subtitle or any rule
adopted under this subtitle;
(4) sold without legal authorization a prescription
drug or device to a person other than:
(A) a pharmacy licensed by the board;
(B) a practitioner;
(C) a person who procures a prescription drug or
device for lawful research, teaching, or testing, and not for
resale;
(D) a manufacturer or wholesaler licensed by the
commissioner of public health as required by Chapter 431, Health
and Safety Code; or
(E) a carrier or warehouseman;
(5) allowed an employee who is not a pharmacist to
practice pharmacy;
(6) sold an adulterated or misbranded prescription or
nonprescription drug;
(7) failed to engage in or ceased to engage in the
business described in the application for a license;
(8) failed to maintain records as required by this
subtitle, Chapter 481 or 483, Health and Safety Code, the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. Section 801 et seq.), or any rule adopted under this subtitle
or Chapter 483, Health and Safety Code;
(9) failed to establish and maintain effective
controls against diversion of prescription drugs into other than a
legitimate medical, scientific, or industrial channel as provided
by this subtitle, another state statute or rule, or a federal
statute or rule; [or]
(10) engaged in fraud, deceit, or misrepresentation as
defined by board rule in operating a pharmacy or in applying for a
license to operate a pharmacy;
(11) violated a board order, including a confidential
order or contract under the program to aid impaired pharmacists and
pharmacy students under Chapter 564;
(12) been responsible for a drug audit shortage; or
(13) been disciplined by the regulatory board of
another state for conduct substantially equivalent to conduct
described under this subsection.
(b) This subsection applies only to an applicant or license
holder that is a legal business entity. The board may discipline an
applicant for or the holder of a pharmacy license, including a Class
E pharmacy license, if the board finds that a managing officer of
the applicant or license holder has been convicted of or placed on
deferred adjudication community supervision or deferred
disposition or the applicable federal equivalent for:
(1) a misdemeanor:
(A) involving moral turpitude; or
(B) under Chapter 481 or 483, Health and Safety
Code, or the Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. Section 801 et seq.); or
(2) a felony.
(c) A certified copy of the record of the state taking
action described by Subsection (a)(13) is conclusive evidence of
the action taken by that state.
SECTION 28. Section 565.003(a), Occupations Code, is
amended to read as follows:
(a) In addition to the grounds for discipline under Section
565.002, the [The] board may discipline an applicant for or the
holder of a Class E pharmacy license if the board finds that the
applicant or license holder has:
(1) dispensed a drug, quantity of drug, or strength of
drug other than as ordered for the patient by a practitioner;
(2) labeled a prescription with incorrect directions
for use;
(3) violated Section 560.001, 560.051(a)(5),
560.052(c), 561.002, 562.101(f), 562.104, 562.105, or 562.106(a),
(b), or (c); [or]
(4) engaged in conduct that caused serious bodily
injury to a resident of this state; or
(5) been disciplined by the regulatory board of
another state for conduct substantially equivalent to conduct
described under this subsection.
SECTION 29. Section 565.051, Occupations Code, is amended
to read as follows:
Sec. 565.051. DISCIPLINE AUTHORIZED. [(a)] On a
determination that a ground for discipline exists under Subchapter
A, or that a violation of this subtitle or[, to the extent
authorized by Subsection (b),] a rule adopted under this
subtitle[,] has been committed by a license holder or applicant for
a license or renewal of a license, the board may:
(1) suspend the person's license;
(2) revoke the person's license;
(3) restrict the person's license to prohibit the
person from performing certain acts or from practicing pharmacy or
operating a pharmacy in a particular manner for a term and under
conditions determined by the board;
(4) impose an administrative penalty under Chapter
566;
(5) refuse to issue or renew the person's license;
(6) place the offender's license on probation and
supervision by the board for a period determined by the board and
impose a requirement that the license holder:
(A) report regularly to the board on matters that
are the basis of the probation;
(B) limit practice to the areas prescribed by the
board;
(C) continue or review professional education
until the license holder attains a degree of skill satisfactory to
the board in each area that is the basis of the probation; or
(D) pay the board a probation fee to defray the
costs of monitoring the license holder during the period of
probation;
(7) reprimand the person;
(8) retire the person's license as provided by board
rule; or
(9) impose more than one of the sanctions listed in
this subsection.
[(b) On a determination that a rule of the board has been
violated, the board may impose only a sanction listed in Subsection
(a)(1), (3), (4), (6), or (7). This subsection does not preclude
imposition of any sanction for violation of a board rule regarding a
controlled substance.]
SECTION 30. Section 565.053, Occupations Code, is amended
to read as follows:
Sec. 565.053. DISCIPLINE OF CLASS E PHARMACY; NOTICE TO
RESIDENT STATE. [(a)] The board shall give notice of [Except in
the case of an emergency that creates an immediate danger to the
public health or safety, before initiating] a disciplinary action
by the board against the holder of a Class E pharmacy license to
[license, the board must file a complaint against the license
holder with] the regulatory or licensing agency of the state in
which the pharmacy is located.
[(b) The board may initiate the board's own action to
discipline the holder of a Class E pharmacy license if the
regulatory or licensing agency of the state in which the pharmacy is
located:
[(1) fails to initiate an action before the 61st day
after the date the board files a complaint under this section;
[(2) fails to resolve the complaint on or before the
181st day after the date the complaint is filed; or
[(3) lacks or fails to exercise jurisdiction.]
SECTION 31. Section 565.059, Occupations Code, is amended
to read as follows:
Sec. 565.059. TEMPORARY SUSPENSION OF LICENSE. (a) The
president of the board shall appoint a three-member disciplinary
panel consisting of board members to determine whether a pharmacy
license or license to practice pharmacy should be temporarily
suspended or restricted. If a majority of the disciplinary panel
[board] determines from evidence or information presented to the
panel [board] that a pharmacist or pharmacy by continuation in
practice would constitute a continuing threat to the public
welfare, the panel [board] shall temporarily suspend the
pharmacist's license.
(b) The disciplinary panel [board] may temporarily suspend
the license without notice or hearing if, at the time the suspension
is ordered, a hearing before the panel [board] on whether
disciplinary proceedings under this chapter should be initiated
against the license holder is scheduled to be held not later than
the 14th day after the date of the suspension.
(c) A second hearing on the suspended license shall be held
by the State Office of Administrative Hearings not later than the
60th day after the date of the suspension. If the State Office of
Administrative Hearings does not hold the second hearing in the
time required by this subsection, the suspended license is
automatically reinstated.
(d) Notwithstanding Chapter 551, Government Code, the
disciplinary panel may hold a meeting by telephone conference call
if immediate action is required and convening of the panel at one
location is inconvenient for any member of the disciplinary panel.
SECTION 32. Section 566.002, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) The [Except as provided by this subsection, the] amount
of the administrative penalty may not exceed $5,000 [$2,500] for
each violation, including[. The amount of the administrative
penalty for] a violation involving the diversion of a controlled
substance [may not exceed $5,000 for each violation].
(d) The board by rule shall adopt an administrative penalty
schedule for violations of this subtitle or board rules to ensure
that the amounts of penalties imposed are appropriate to the
violation.
SECTION 33. Section 566.051(a), Occupations Code, is
amended to read as follows:
(a) The attorney general at the request of the board may
petition a district court for an injunction to prohibit a person who
is violating this subtitle from continuing the violation.
SECTION 34. Subchapter B, Chapter 566, Occupations Code, is
amended by adding Section 566.052 to read as follows:
Sec. 566.052. CEASE AND DESIST ORDER. (a) If it appears to
the board that a person is engaging in an act or practice that
constitutes the practice of pharmacy without a license or
registration under this subtitle, the board, after notice and
opportunity for a hearing, may issue a cease and desist order
prohibiting the person from engaging in the activity.
(b) A violation of an order issued under this section
constitutes grounds for imposing an administrative penalty under
Subchapter A.
SECTION 35. Section 568.003, Occupations Code, is amended
to read as follows:
Sec. 568.003. GROUNDS FOR [REFUSAL TO ISSUE OR RENEW
REGISTRATION;] DISCIPLINARY ACTION. (a) The board may take
disciplinary action under Section 568.0035 [refuse to issue or
renew a registration or may suspend or revoke any registration
issued by the board] if the board determines that the applicant or
registrant has:
(1) violated this subtitle or a rule adopted under
this subtitle;
(2) engaged in gross immorality, as that term is
defined by the rules of the board;
(3) engaged in any fraud, deceit, or
misrepresentation, as those terms are defined by the rules of the
board, in seeking a registration to act as a pharmacy technician;
(4) been convicted of a misdemeanor involving moral
turpitude or a felony;
(5) a drug or alcohol dependency;
(6) violated:
(A) Chapter 481 or 483, Health and Safety Code,
or rules relating to those chapters;
(B) Sections 485.031-485.035, Health and Safety
Code; or
(C) a rule adopted under Section 485.011, Health
and Safety Code;
(7) violated the pharmacy or drug laws or rules of this
state, another state, or the United States; or
(8) had a registration as a pharmacy technician issued
by another state revoked, surrendered, or suspended for conduct
substantially equivalent to conduct described by Subdivisions
(1)-(6).
(b) A certified copy of the record of a state taking action
described by Subsection (a)(8) is conclusive evidence of the action
taken by the state.
SECTION 36. Chapter 568, Occupations Code, is amended by
adding Section 568.0035 to read as follows:
Sec. 568.0035. DISCIPLINE AUTHORIZED. On a determination
that a ground for discipline exists under Section 568.003, the
board may:
(1) suspend the person's registration;
(2) revoke the person's registration;
(3) restrict the person's registration to prohibit the
person from performing certain acts or from practicing as a
pharmacy technician in a particular manner for a term and under
conditions determined by the board;
(4) impose an administrative penalty under Chapter
566;
(5) refuse to issue or renew the person's
registration;
(6) place the offender's registration on probation and
supervision by the board for a period determined by the board and
impose a requirement that the registrant:
(A) report regularly to the board on matters that
are the basis of the probation;
(B) limit practice to the areas prescribed by the
board;
(C) continue or review professional education
until the registrant attains a degree of skill satisfactory to the
board in each area that is the basis of the probation; or
(D) pay the board a probation fee to defray the
costs of monitoring the registrant during the period of probation;
(7) reprimand the person;
(8) retire the person's registration as provided by
board rule; or
(9) impose more than one of the sanctions listed in
this section.
SECTION 37. Chapter 568, Occupations Code, is amended by
adding Section 568.007 to read as follows:
Sec. 568.007. REGISTRATION OF PHARMACY
TECHNICIANS-IN-TRAINING. (a) A person must register with the
board before beginning work in a pharmacy in this state as a
pharmacy technician-in-training.
(b) An application for registration as a pharmacy
technician-in-training must be on a form prescribed by the board.
(c) A person's registration as a pharmacy
technician-in-training remains in effect as long as the person
meets the qualifications specified by board rule.
(d) The board may:
(1) refuse to issue a registration to an applicant; or
(2) restrict, suspend, or revoke the registration of a
pharmacy technician-in-training for a violation of this subtitle.
SECTION 38. Section 565.060, Occupations Code, is repealed.
SECTION 39. On the effective date of this Act the state
pharmacy account is abolished and the comptroller shall transfer
money in the account to the general revenue fund.
SECTION 40. (a) The changes in law made by this Act to
Section 552.004, Occupations Code, do not affect the entitlement of
a member serving on the Texas State Board of Pharmacy immediately
before September 1, 2005, to continue to serve and function as a
member of the Texas State Board of Pharmacy for the remainder of the
term the member is serving on that date. Those changes in law apply
only to a member appointed on or after September 1, 2005.
(b) The changes in law made by this Act governing the
eligibility of a person or pharmacy for a license under Chapter 558
or 560, Occupations Code, apply only to an application for a license
filed with the Texas State Board of Pharmacy on or after the
effective date of this Act. A license application filed before the
effective date of this Act is governed by the law in effect at the
time the application was filed, and the former law is continued in
effect for that purpose.
(c) Sections 559.003 and 561.003, Occupations Code, as
amended by this Act, and Section 561.0031, Occupations Code, as
added by this Act, apply only to the renewal of a license to
practice pharmacy or a pharmacy license that expires on or after the
effective date of this Act. A license that expires before that date
is governed by the law in effect on the date the license expires,
and the former law is continued in effect for that purpose.
(d) The changes in law made by this Act to Chapter 565,
Occupations Code, relating to conduct that is grounds for
imposition of a disciplinary sanction apply only to conduct that
occurs on or after the effective date of this Act. Conduct that
occurs before the effective date of this Act is governed by the law
in effect on the date the conduct occurred, and the former law is
continued in effect for that purpose.
SECTION 41. This Act takes effect September 1, 2005.