|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the program for impaired pharmacists and disciplinary |
|
proceedings conducted by the Texas State Board of Pharmacy. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Subsections (a) and (b), Section 564.001, |
|
Occupations Code, are amended to read as follows: |
|
(a) An individual or entity [A person], including a |
|
pharmaceutical peer review committee, who has knowledge relating to |
|
an action or omission of a pharmacist in this state or a pharmacy |
|
student who is enrolled in the professional sequence of an |
|
accredited pharmacy degree program approved by the board that might |
|
provide grounds for disciplinary action under Section |
|
565.001(a)(4) or (7) may report relevant facts to the board. |
|
(b) A committee of a professional society composed |
|
primarily of pharmacists, the staff of the committee, or a district |
|
or local intervenor participating in a program established to aid |
|
pharmacists or [eligible] pharmacy students impaired by chemical |
|
abuse or mental or physical illness may report in writing to the |
|
board the name of an impaired pharmacist or pharmacy student and the |
|
relevant information relating to the impairment. |
|
SECTION 2. Section 564.002, Occupations Code, is amended to |
|
read as follows: |
|
Sec. 564.002. CONFIDENTIALITY. (a) All [The] records and |
|
proceedings of the board, an authorized agent of the board, or a |
|
pharmaceutical organization committee relating to the |
|
administration of this chapter [described under Section 564.001(a)
|
|
or (b), in connection with a report under Section 564.001(a) or
|
|
(b),] are confidential and are not considered public information |
|
for purposes of Chapter 552, Government Code. Records considered |
|
confidential under this section include: |
|
(1) information relating to a report made under |
|
Section 564.001, including the identity of the individual or entity |
|
making the report; |
|
(2) the identity of an impaired pharmacist or pharmacy |
|
student participating in a program administered under this chapter, |
|
except as provided by Section 564.003; |
|
(3) a report, interview, statement, memorandum, |
|
evaluation, communication, or other information possessed by the |
|
board, an authorized agent of the board, or a pharmaceutical |
|
organization committee, related to a potentially impaired |
|
pharmacist or pharmacy student; |
|
(4) a policy or procedure of an entity that contracts |
|
with the board relating to personnel selection; and |
|
(5) a record relating to the operation of the board, an |
|
authorized agent of the board, or a pharmaceutical organization |
|
committee, as the record relates to a potentially impaired |
|
pharmacist or pharmacy student. |
|
(b) A record or proceeding described by this section is not |
|
subject to disclosure, subpoena, or discovery, except to a member |
|
of the board or an authorized agent of the board involved in the |
|
discipline of an applicant or license holder. |
|
SECTION 3. Section 564.003, Occupations Code, is amended by |
|
amending Subsection (a) and adding Subsections (a-1) and (a-2) to |
|
read as follows: |
|
(a) The board may disclose information confidential under |
|
Section 564.002 only: |
|
(1) during a proceeding conducted by [in a
|
|
disciplinary hearing before] the State Office of Administrative |
|
Hearings, the board, or a panel of the board, or in a subsequent |
|
trial or appeal of a board action or order; |
|
(2) to a pharmacist licensing or disciplinary |
|
authority of another jurisdiction; |
|
(3) under a court order; [or] |
|
(4) to a person providing a service to the board, |
|
including an expert witness, investigator, or employee of an entity |
|
that contracts with the board, related to a disciplinary proceeding |
|
against an applicant or license holder, if the information is |
|
necessary for preparation for, or a presentation in, the |
|
proceeding; or |
|
(5) as provided by Subsection (b). |
|
(a-1) Information that is disclosed under Subsection (a) |
|
remains confidential and is not subject to discovery or subpoena in |
|
a civil suit and may not be introduced as evidence in any action |
|
other than an appeal of a board action. |
|
(a-2) Information that is confidential under Section |
|
564.002 and that is admitted under seal in a proceeding conducted by |
|
the State Office of Administrative Hearings is confidential |
|
information for the purpose of a subsequent trial or appeal. |
|
SECTION 4. Subsection (a), Section 564.004, Occupations |
|
Code, is amended to read as follows: |
|
(a) Any person, including a board employee or member, peer |
|
review committee member, pharmaceutical organization committee |
|
member, or pharmaceutical organization district or local |
|
intervenor, who provides information, reports, or records under |
|
Section 564.001[(a) or (b)] to aid an impaired pharmacist or |
|
pharmacy student is immune from civil liability if the person |
|
provides the information in good faith. |
|
SECTION 5. Section 565.052, Occupations Code, is amended to |
|
read as follows: |
|
Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION. |
|
(a) In enforcing Section 565.001(a)(4) or (7), the board or an |
|
authorized agent of the board on probable cause, as determined by |
|
the board or agent, shall request a pharmacist, pharmacist |
|
applicant, pharmacist-intern, or pharmacist-intern applicant to |
|
submit to a mental or physical examination by a physician or other |
|
health care professional designated by the board. |
|
(b) If the pharmacist, pharmacist applicant, |
|
pharmacist-intern, or pharmacist-intern applicant refuses to |
|
submit to the examination, the board or the executive director of |
|
the board shall issue an order requiring the pharmacist, pharmacist |
|
applicant, pharmacist-intern, or pharmacist-intern applicant to |
|
show cause why the pharmacist, pharmacist applicant, |
|
pharmacist-intern, or pharmacist-intern applicant will not submit |
|
to the examination and shall schedule a hearing before a panel of |
|
three members of the board appointed by the president of the board |
|
on the order not later than the 30th day after the date notice is |
|
served on the pharmacist, pharmacist applicant, pharmacist-intern, |
|
or pharmacist-intern applicant. The pharmacist, pharmacist |
|
applicant, pharmacist-intern, or pharmacist-intern applicant shall |
|
be notified by either personal service or certified mail with |
|
return receipt requested. |
|
(c) At the hearing, the pharmacist, pharmacist applicant, |
|
pharmacist-intern, or pharmacist-intern applicant and an attorney |
|
are entitled to present testimony or other evidence to show why the |
|
pharmacist, pharmacist applicant, pharmacist-intern, or |
|
pharmacist-intern applicant [pharmacist intern-applicant] should |
|
not be required to submit to the examination. The pharmacist, |
|
pharmacist applicant, pharmacist-intern, or pharmacist-intern |
|
applicant has the burden of proof to show why the pharmacist, |
|
pharmacist applicant, pharmacist-intern, or pharmacist-intern |
|
applicant should not be required to submit to the examination. |
|
(d) After the hearing, the panel [board] shall by order |
|
require the pharmacist, pharmacist applicant, pharmacist-intern, |
|
or pharmacist-intern applicant to submit to the examination not |
|
later than the 60th day after the date of the order or withdraw the |
|
request for examination, as applicable. |
|
SECTION 6. Subsection (c), Section 565.055, Occupations |
|
Code, is amended to read as follows: |
|
(c) Notwithstanding Subsection (b), information or material |
|
compiled by the board in connection with an investigation may be |
|
disclosed [to]: |
|
(1) during any proceeding conducted by the State |
|
Office of Administrative Hearings, to the board, or a panel of the |
|
board, or in a subsequent trial or appeal of a board action or |
|
order; |
|
(2) to a person providing a service to the board, |
|
including an expert witness, investigator, or employee of an entity |
|
that contracts with the board, related to a disciplinary proceeding |
|
against an applicant or license holder, or a subsequent trial or |
|
appeal, if the information is necessary for preparation for, or a |
|
presentation in, the proceeding [involved with the board in a
|
|
disciplinary action against the license holder]; |
|
(3) to [(2)] an entity in another jurisdiction that |
|
licenses or disciplines pharmacists or pharmacies; |
|
(4) to [(3)] a pharmaceutical or pharmacy peer review |
|
committee as described under Chapter 564; |
|
(5) to [(4)] a law enforcement agency; [or] |
|
(6) to [(5)] a person engaged in bona fide research, if |
|
all information identifying a specific individual has been deleted; |
|
or |
|
(7) under a court order. |
|
SECTION 7. The heading to Section 565.059, Occupations |
|
Code, is amended to read as follows: |
|
Sec. 565.059. TEMPORARY SUSPENSION OR RESTRICTION OF |
|
LICENSE [OR REGISTRATION]. |
|
SECTION 8. Subsections (a), (b), and (c), Section 565.059, |
|
Occupations Code, are amended to read as follows: |
|
(a) The president of the board shall appoint a three-member |
|
disciplinary panel consisting of board members to determine whether |
|
a license [or registration] under this subtitle should be |
|
temporarily suspended or restricted. If a majority of the |
|
disciplinary panel determines from evidence or information |
|
presented to the panel that the holder of a license [or
|
|
registration] by continuation in the practice of pharmacy or in the |
|
operation of a pharmacy would constitute a continuing threat to the |
|
public welfare, the panel shall temporarily suspend or restrict the |
|
license as provided by Subsection (b) [or registration]. |
|
(b) The disciplinary panel may temporarily suspend or |
|
restrict the license: |
|
(1) after a hearing conducted by the panel after the |
|
10th day after the date notice of the hearing is provided to the |
|
license holder; or |
|
(2) [or registration] without notice or hearing if, at |
|
the time the suspension or restriction is ordered, a hearing before |
|
the panel [on whether disciplinary proceedings under this chapter
|
|
should be initiated against the holder of a license or
|
|
registration] is scheduled to be held not later than the 14th day |
|
after the date of the temporary suspension or restriction to |
|
determine whether the suspension or restriction should be |
|
continued. |
|
(c) Not later than the 90th day after the date of the |
|
temporary suspension or restriction, the board shall initiate a |
|
disciplinary action against the license holder, and a contested |
|
case [A second] hearing [on the suspended license or registration] |
|
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 or |
|
restricted license [or registration] is automatically reinstated. |
|
SECTION 9. Subsections (b), (c), (e), and (f), Section |
|
568.0036, Occupations Code, are amended to read as follows: |
|
(b) In enforcing Section 568.003(a)(5) or (7), the board or |
|
an authorized agent of the board[,] on probable cause, as |
|
determined by the board or agent, may request a person subject to |
|
this section to submit to a mental or physical examination by a |
|
physician or other health care professional designated by the |
|
board. |
|
(c) If the person refuses to submit to the examination, the |
|
board or the executive director of the board shall: |
|
(1) issue an order requiring the person to show cause |
|
why the person will not submit to the examination; and |
|
(2) schedule a hearing before a panel of three members |
|
of the board appointed by the president of the board on the order |
|
not later than the 30th day after the date notice of the order is |
|
served on the person under Subsection (d). |
|
(e) At the hearing, the person and the person's counsel may |
|
present testimony or other evidence to show why the person should |
|
not be required to submit to the examination. The person has the |
|
burden of proof to show why the person should not be required to |
|
submit to the examination. |
|
(f) After the hearing, as applicable, the panel [board] |
|
shall, by order: |
|
(1) require the person to submit to the examination |
|
not later than the 60th day after the date of the order; or |
|
(2) withdraw the request for examination. |
|
SECTION 10. Chapter 568, Occupations Code, is amended by |
|
adding Section 568.0037 to read as follows: |
|
Sec. 568.0037. TEMPORARY SUSPENSION OR RESTRICTION OF |
|
REGISTRATION. (a) The president of the board shall appoint a |
|
disciplinary panel consisting of three board members to determine |
|
whether a registration under this chapter should be temporarily |
|
suspended or restricted. If a majority of the panel determines from |
|
evidence or information presented to the panel that the registrant |
|
by continuation in practice as a pharmacy technician would |
|
constitute a continuing threat to the public welfare, the panel |
|
shall temporarily suspend or restrict the registration as provided |
|
by Subsection (b). |
|
(b) A disciplinary panel may temporarily suspend or |
|
restrict the registration: |
|
(1) after a hearing conducted by the panel after the |
|
10th day after the date notice of the hearing is provided to the |
|
registrant; or |
|
(2) without notice or hearing if, at the time the |
|
suspension or restriction is ordered, a hearing before the panel is |
|
scheduled to be held not later than the 14th day after the date of |
|
the temporary suspension or restriction to determine whether the |
|
suspension or restriction should be continued. |
|
(c) Not later than the 90th day after the date of the |
|
temporary suspension or restriction, the board shall initiate a |
|
disciplinary action under this chapter, and a contested |
|
case hearing shall be held by the State Office of Administrative |
|
Hearings. If the State Office of Administrative Hearings does not |
|
hold the hearing in the time required by this subsection, the |
|
suspended or restricted registration 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 the panel at one |
|
location is inconvenient for any member of the disciplinary panel. |
|
SECTION 11. The changes in law made by this Act relating to |
|
the Texas State Board of Pharmacy's disciplinary authority 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 occurs, and |
|
the former law is continued in effect for that purpose. |
|
SECTION 12. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2011. |