79R8008 YDB-D

By:  Uresti                                                       H.B. No. 3239


A BILL TO BE ENTITLED
AN ACT
relating to the wholesale distribution of prescription drugs; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 431, Health and Safety Code, is amended by adding Subchapter N to read as follows:
SUBCHAPTER N. WHOLESALE DRUG DISTRIBUTION
Sec. 431.401. SHORT TITLE. This subchapter may be cited as the Wholesale Prescription Drug Distribution Protection and Licensing Act of 2005. Sec. 431.402. SCOPE. This subchapter applies to any person engaging in the wholesale distribution of prescription drugs in this state. Sec. 431.403. PURPOSE. The purpose of this subchapter is to strengthen existing state requirements governing the distribution of prescription drugs in order to protect the drug supply and consumer safety. The subchapter accomplishes this goal by: (1) enhancing the licensing requirements for wholesale distributors; (2) expanding the department's duties and enforcement responsibilities; and (3) enhancing the criminal penalty provisions for knowingly tampering with, counterfeiting, or diverting prescription drugs. Sec. 431.404. DEFINITIONS. In this subchapter: (1) "Authorized distributor of record" means a wholesale drug distributor with whom a manufacturer has established an ongoing relationship to distribute the manufacturer's product. An ongoing relationship exists when a wholesale drug distributor, including any affiliated group, as defined in Section 1504, Internal Revenue Code of 1986, of which the wholesale distributor is a member: (A) is listed on the manufacturer's list and the list is updated monthly; (B) has a written agreement in effect with the manufacturer; or (C) has a verifiable account with a line of credit with the manufacturer and minimal transaction or volume requirement thresholds of 5,000 sales units per company within 12 months or 12 purchases from the manufacturer at the manufacturer's minimum purchasing requirements per invoice within 12 months. (2) "Sales unit" means the unit of measure the manufacturer uses to invoice the manufacturer's customer for the particular product. (3) "Verifiable account" means: (A) an account that the manufacturer confirms, in written or oral form, is assigned to the wholesale distributor; or (B) copies of the manufacturer's invoices containing a printed account number and the name and address of the wholesale distributor. (4) "Wholesale distribution" means distribution of prescription drugs to persons other than a consumer or patient, but does not include: (A) intracompany sales; (B) the purchase or other acquisition of a drug by a hospital or other health care entity that is a member of a group purchasing organization for the hospital's or entity's own use from the group purchasing organization or from other hospitals or health care entities that are members of such organizations; (C) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug by a charitable organization to a nonprofit affiliate of the organization to the extent otherwise permitted by law; (D) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug among hospitals or other health care entities that are under common control; (E) the sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug for emergency medical reasons; (F) the sale, purchase, or trade of a drug, an offer to sell, purchase, or trade a drug, or the dispensing of a drug under a prescription in accordance with this chapter or other law; (G) the distribution of drug samples by a representative of a manufacturer or an authorized distributor of record; (H) the sale, purchase, or trade of blood or blood components intended for transfusion; (I) drug returns, when conducted by a hospital, health care entity, or charitable institution in accordance with this chapter or rules adopted under this chapter; or (J) the sale of minimal quantities of drugs by retail pharmacies to licensed practitioners for office use. (5) "Wholesale distributor" means any person engaged in wholesale distribution of prescription drugs, including manufacturers, repackagers, own-label distributors, private-label distributors, jobbers, brokers, warehouses, manufacturer warehouses, distributor warehouses, chain drug warehouses, wholesale drug warehouses, independent wholesale drug traders, and retail pharmacies that conduct wholesale distributions. Sec. 431.405. RULEMAKING AUTHORITY. The executive commissioner of the Health and Human Services Commission shall adopt rules to implement this subchapter. Sec. 431.406. LICENSE REQUIRED. (a) A person may not engage in the wholesale distribution of drugs in this state unless the person holds a license issued under this subchapter. (b) The license must be renewed annually. Sec. 431.407. CONTENTS OF LICENSE APPLICATION. (a) An application for a license or renewal license for a wholesale distributor or an out-of-state wholesale distributor submitted to the department must include: (1) the name, full business address, and telephone number of the applicant; (2) all trade or business names used by the applicant, including all affiliated businesses; (3) the name, address, and telephone number of a contact person for each facility used by the applicant for the storage, handling, and distribution of prescription drugs; (4) the type of ownership or operation, such as a partnership, corporation, or sole proprietorship; (5) the names of each owner and the operator of the establishment, including: (A) if an individual, the name of the individual; (B) if a partnership, the name of each partner and the name of the partnership; (C) if a corporation: (i) the name, address, and title of each corporate officer and director; (ii) the name and address of the corporation, the name and address of the resident agent of the corporation, and the corporation's state of incorporation; and (iii) for non-publicly held corporations only, the name and address of each shareholder that owns 10 percent or more of the outstanding stock of the corporation; (D) if a sole proprietorship, the full name of the sole proprietor and the name of the business entity; or (E) if a limited liability company: (i) the name and address of each principal; (ii) the name and address of each manager; and (iii) the name and address of the limited liability company, the name and address of the resident agent of the limited liability company, and the state in which the limited liability company is organized; (6) a list of all state licenses, registrations, or permits issued to the applicant by any other state licensing authority that authorizes the applicant to purchase, possess, and distribute prescription drugs, including the license, registration, or permit numbers; (7) a list of all disciplinary actions by a state or federal agency against the applicant, as well as any disciplinary actions against principals, owners, directors, or officers during the seven years before the date of the application; (8) the number of employees at each facility and screening procedures for hiring; (9) the minimum liability insurance limits the applicant maintains, including general as well as product liability insurance; (10) a full description of each facility or warehouse, including all locations used for prescription drug storage or distribution, which must include: (A) square footage; (B) security and alarm system description; (C) terms of lease or ownership; (D) address; and (E) temperature and humidity controls; (11) the tax year of the applicant; (12) a copy of the deed for the property on which the applicant's establishment is located, for an establishment owned by the applicant, or a copy of the applicant's lease for the property on which the applicant's establishment is located that has an original term of not less than one calendar year, for an establishment not owned by the applicant; (13) a description of the applicant's prescription drug import and export activities; and (14) a description of the applicant's written procedures. (b) An applicant with multiple facilities may designate one person to serve as the contact person for all of the applicant's facilities and affiliates for purposes of Subsection (a)(3). (c) The information required under this section that is personally identifiable or a trade secret shall be maintained by the department as confidential and is exempt from public disclosure. Sec. 431.408. REQUIRED INFORMATION FROM DRUG MANUFACTURER. (a) A manufacturer of a prescription drug sold in this state shall: (1) file with the department a written list of all of the manufacturer's authorized distributors of record; and (2) notify the department not later than the 10th day after the date of any change made to the list. (b) The department shall publish a list of all authorized distributors of record on the department's Internet website and update the list at least monthly. Sec. 431.409. DEPARTMENT DUTIES WITH REGARD TO INSPECTIONS, APPLICANT BACKGROUND CHECKS, AND REVOCATION, DENIAL, AND SUSPENSION OF WHOLESALE DISTRIBUTOR LICENSE. (a) Before issuing an initial license and periodically thereafter on the schedule determined by the department, the department shall conduct a criminal and financial background check of each wholesale distributor applicant. The background check must include: (1) a criminal background and criminal and civil litigation check of all company officers, key management, principals, and, for non-publicly held companies, the owners with 10 percent or greater interest in the company; (2) a driver's license and social security verification of all company officers, key management, principals, and owners; (3) a credit history of the company and the company's key officers maintained by an independent third-party credit evaluation organization; (4) a check of any national database of licensed prescription drug wholesale distributors to verify where the distributor is licensed and obtain other available relevant information; (5) a check to determine if civil or criminal litigation exists against the company; and (6) verification of the date of incorporation, years in business, place of incorporation, and form of entity. (b) The information collected by the department as part of the background check described in Subsection (a) is exempt from public disclosure. (c) The department shall conduct a physical inspection of each in-state applicant's facility before issuing a license and conduct regular periodic inspections at least every three years after the license is originally issued. The department must use a qualified inspector who is specifically trained to conduct inspections of wholesale distributors and has current training and knowledge regarding the wholesale drug distribution industry. (d) The department shall make publicly available on the department's Internet website the dates of the first and most recent inspections of each wholesale distributor. (e) The department shall notify appropriate parties on license suspension, revocation, expiration, or other relevant action and make reports of those actions publicly available on the department's Internet website not later than the fifth business day following the date of the action. Sec. 431.410. SURETY BOND. (a) An applicant for a wholesale distributor license or renewal license shall submit a surety bond of $100,000 or evidence of other equivalent means of security acceptable to the department, such as insurance, an irrevocable letter of credit, or funds deposited in a trust account or financial institution. A separate surety bond or other equivalent means of security is not required for each separate location of the distributor or for affiliated companies if the separate locations or affiliated companies are required to apply for or renew a wholesale distributor license with the department. (b) The purpose of the surety bond or other equivalent means of security is to secure payment of any administrative penalties imposed by the department and any fees or costs incurred by the department regarding a license if the license holder fails to pay the penalty, fee, or cost within 30 days after the date the imposition of the penalty, fee, or cost becomes final. (c) The department may make a claim against the surety bond or other equivalent means of security until the later of the first anniversary of the date the wholesale distributor license expires or the 60th day after the date any administrative or legal proceeding authorized under this chapter involving the license holder is concluded, including any appeal. The surety bond or other equivalent means of security must remain in place or in effect until at least the later of the first anniversary of the date the wholesale distributor's license expires or the 60th day after the date any administrative or legal proceeding authorized under this chapter involving the license holder is concluded, including any appeal. Sec. 431.411. DESIGNATED REPRESENTATIVE. (a) A wholesale distributor licensed by the department shall identify a designated representative who is responsible for the distributor's compliance with applicable state and federal laws. A designated representative: (1) may be a corporate employee or officer, outside counsel, or an outside consulting specialist with the authority to help ensure compliance; (2) is not required to be physically present at the facility; and (3) may have responsibility for multiple licensed facilities. (b) A wholesale distributor shall notify the department not later than the 10th business day after the date of any change in its designated representative. A wholesale distributor may not operate under a wholesale distributor's license for more than 30 business days without a designated representative. Sec. 431.412. PRESCRIPTION DRUG WHOLESALE DISTRIBUTOR ADVISORY COUNCIL. (a) The Prescription Drug Wholesale Distributor Advisory Council is established within the department. The council is composed of five members appointed by the commissioner of state health services as follows: (1) three persons employed by different wholesale distributors that are licensed under this subchapter and that are not manufacturers; (2) one person employed by a drug manufacturer; and (3) one pharmacist. (b) Members of the council serve staggered four-year terms and serve without compensation. (c) The council shall meet at least once each quarter and shall annually elect a presiding officer and assistant presiding officer from among its members. (d) The department shall provide staff for the council. (e) The council is not subject to Chapter 2110, Government Code. (f) The council shall: (1) advise the department regarding proposed rules that would affect the distribution of prescription drugs; and (2) make recommendations to the department regarding practical measures and procedures that may be implemented to improve the integrity of the prescription drug distribution system and protect the public health. Sec. 431.413. CRIMINAL PENALTIES. (a) A person commits an offense if the person knowingly tampers with, counterfeits, adulterates, misbrands, or diverts a prescription drug product. An offense under this subsection is a felony of the third degree. (b) A person commits an offense if the person knowingly purchases, transfers, sells, or distributes prescription drugs from or to persons not authorized to possess the prescription drugs. An offense under this subsection is a felony of the third degree. (c) A person commits an offense if the person knowingly purchases, transfers, sells, or distributes prescription drugs that have been tampered with, counterfeited, adulterated, misbranded, or diverted. An offense under this subsection is a felony of the third degree. (d) A person commits an offense if the person knowingly forges, counterfeits, or tampers with any pedigree documentation or other transactional documentation associated with the purchase, transfer, delivery, or sale of prescription drugs that is required by federal or state law. An offense under this subsection is a felony of the third degree. (e) If conduct constituting an offense under this section also constitutes an offense under another section of this chapter, the person may be prosecuted under either section or both sections. Sec. 431.414. PEDIGREE. (a) A person who is engaged in the wholesale distribution of a prescription drug subject to this chapter and who, except as provided by Subsection (b), is not the manufacturer or an authorized distributor of record for the drug shall provide to each wholesale distributor of the drug, including with each distribution to an authorized distributor of record or to a retail pharmacy, before the sale is made to the wholesale distributor, a statement or record that: (1) identifies by date each previous sale of the drug starting with the last authorized distributor of record or the manufacturer if the drug has not been purchased previously by an authorized distributor of record; (2) identifies the proprietary and established name of the drug; (3) identifies the dosage, container size, number of containers, and lot or control number of the drug; and (4) identifies the business name and address of all parties identified in the statement. (b) A repackager or a manufacturer that repackages a drug subject to this subchapter and that is not an authorized distributor of record must comply with Subsection (a). (c) Notwithstanding Subsection (a), each person who is engaged in the wholesale distribution of a specified drug and who did not purchase the specified drug directly from the manufacturer must provide to each wholesale distributor of the specified drug, including with each distribution to an authorized distributor of record or to a retail pharmacy, a statement or record that: (1) identifies by date each previous sale of the specific unit of specified drug back to the manufacturer of the specified drug; (2) identifies the proprietary and established name of the drug; (3) identifies the dosage, container size, number of containers, and lot or control number of the specific unit of the specified drug; and (4) identifies the business name and address of all parties identified in the statement. (d) For purposes of this section, "specified drug" means a prescription drug on a national list of prescription drugs considered to be potential targets for adulteration, counterfeiting, or diversion compiled by a national drug advisory coalition in conjunction with the United States Food and Drug Administration and other stakeholders, including wholesale distributors, manufacturers, pharmacies, and appropriate state government agencies responsible for regulating the sale or distribution of prescription drugs and approved by the executive commissioner of the Health and Human Services Commission for use under this section. The department shall notify and provide wholesale distributors with the national list of specified drugs as prescription drugs are added to or removed from the list. (e) The department shall oversee the development of an effective, unique electronic product identification tracking system for drugs subject to this subchapter to be implemented by manufacturers, repackagers, pharmacies, and wholesale distributors of drug products. The system must be designed to deter and detect counterfeiting and to provide a means for prescription drug product manufacturers, repackagers, distributors, and pharmacies to authenticate the product. The tracking system must be in place by December 31, 2010. (f) Notwithstanding any other provision of this section, once the tracking system required under Subsection (e) is in place, the executive commissioner of the Health and Human Services Commission shall adopt rules to replace the requirements of Subsections (a)-(e). The tracking system may only be considered as readily available and in place on or after the time a standardized system with the capacity for use on a wide scale across the entire health care industry, which includes manufacturers, wholesale distributors, and pharmacies, is available. Sec. 431.415. DUE DILIGENCE REVIEW BY PURCHASERS. (a) Before purchasing a prescription drug from another wholesale distributor, the purchasing wholesale distributor shall obtain the following information from the selling wholesale distributor: (1) a listing of the states the selling wholesale distributor is domiciled in and shipping drugs into and copies of all current state or federal regulatory licenses or registrations that authorize the selling wholesale distributor to purchase, possess, and distribute prescription drugs; (2) the selling wholesale distributor's most recent facility inspection report; (3) information regarding general and product liability insurance the selling wholesale distributor maintains; (4) a list of all corporate officers; (5) a list of all owners of greater than 10 percent of the selling wholesale distributor, unless it is a publicly held company; (6) if the selling wholesale distributor claims to be an authorized distributor of record, a written statement from the distributor stating that it is an authorized distributor of record and the basis on which that status was given; (7) a list of all disciplinary actions by a state or federal agency against the selling wholesale distributor, as well as principals, owners of, or officers over the last seven years, or, if the distributor has not been licensed for seven years, since the distributor was first licensed; (8) a description, including the address, dimensions, and other relevant information, of each facility or warehouse the selling wholesale distributor uses for drug storage and distribution; (9) a description and listing of all drug import and export activities of the selling wholesale distributor; (10) a description of the process the selling wholesale distributor uses to validate and certify its suppliers and purchases, including the supplier's status as an authorized distributor of record; and (11) a description of the selling wholesale distributor's systems and procedures for prompt reporting to appropriate state and federal authorities and manufacturers any suspected counterfeit, stolen, or otherwise unlawful prescription drug products or buyers or sellers of counterfeit, stolen, or otherwise unlawful prescription drug products. (b) A wholesale distributor may rely on the department's most recent inspection report of the selling wholesale distributor to satisfy the requirement of this section. The department on request shall provide a purchasing wholesale distributor with documentation demonstrating that the selling wholesale distributor's inspection was satisfactory. (c) If the department fails to conduct a physical inspection of the selling wholesale distributor as required under Section 431.409, the purchasing wholesale distributor shall, before the date of an initial purchase of any drug from that selling wholesale distributor and at least once every three years after that date, inspect the selling wholesale distributor's licensed establishment in order to document that it has in place policies and procedures relating to the distribution of drugs, the appropriate temperature-controlled environment for drugs requiring temperature control, an alarm system, appropriate access restrictions, and procedures to ensure that records related to the wholesale distribution of prescription drugs are maintained as required by law. SECTION 2. Subchapter I, Chapter 431, Health and Safety Code, is repealed. SECTION 3. (a) Not later than June 1, 2006, the executive commissioner of the Health and Human Services Commission shall adopt the rules necessary and the Department of State Health Services shall develop the application form and procedures necessary to implement Subchapter N, Chapter 431, Health and Safety Code, as added by this Act. (b) A wholesale drug distributor is not required to obtain a license under Subchapter N, Chapter 431, Health and Safety Code, or comply with the requirements of that subchapter or the rules adopted under that subchapter before September 1, 2006. SECTION 4. The change in law made by this Act applies only to an offense committed on or after September 1, 2006. An offense committed before that date is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before September 1, 2006, if any element of the offense was committed before that date. SECTION 5. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2005. (b) Section 2 of this Act and Section 431.413, Health and Safety Code, as added by this Act, take effect September 1, 2006.