83R4921 BEF-F
 
  By: Schwertner S.B. No. 404
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to complaints filed with the Texas State Board of
  Pharmacy; authorizing fees.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  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, including the complainant's identity, the
  subject matter of the complaint, a summary of the results of the
  review or investigation of the complaint, and the [its] disposition
  of the complaint.
         SECTION 2.  Section 555.007, Occupations Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  The board may not consider or act on a complaint
  involving a violation alleged to have occurred more than seven
  years before the date the complaint is received by the board.
         SECTION 3.  Section 565.051, Occupations Code, is amended to
  read as follows:
         Sec. 565.051.  DISCIPLINE AUTHORIZED. On a determination
  that a ground for discipline exists under Subchapter A, or that a
  violation of this subtitle or 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)  issue a remedial plan; or
               (10)  impose more than one of the sanctions listed in
  this section [subsection].
         SECTION 4.  Section 565.056, Occupations Code, is amended by
  amending Subsection (b) and adding Subsections (d) and (e) to read
  as follows:
         (b)  A rule adopted under this section must:
               (1)  provide the complainant, if applicable and
  permitted by law, and the license holder an opportunity to be heard;
  [and]
               (2)  require the presence of an attorney to advise the
  board or a board employee; and
               (3)  if an informal meeting will be held, require
  notice of the time and place of the informal meeting to be given to
  the license holder not later than the 45th day before the date the
  informal meeting is held.
         (d)  The notice required by Subsection (b)(3) must be
  accompanied by a written statement of the nature of the allegations
  against the license holder and the information the board intends to
  use at the informal meeting. If the board does not provide the
  statement or information when the notice is provided, the license
  holder may use that failure as grounds for rescheduling the
  informal meeting. The license holder must provide to the board the
  license holder's rebuttal not later than the 15th day before the
  date of the meeting in order for that information to be considered
  at the meeting.
         (e)  On request by a license holder under review, the board
  shall make a recording of the informal meeting. The recording is a
  part of the investigative file and may not be released to a third
  party unless authorized under this subtitle. The board may charge
  the license holder a fee to cover the cost of recording the meeting.
  The board shall provide a copy of the recording to the license
  holder on the license holder's request.
         SECTION 5.  Subchapter B, Chapter 565, Occupations Code, is
  amended by adding Section 565.060 to read as follows:
         Sec. 565.060.  REMEDIAL PLAN. (a) The board may issue and
  establish the terms of a remedial plan to resolve the investigation
  of a complaint relating to this subtitle.
         (b)  A remedial plan may not contain a provision that:
               (1)  revokes, suspends, limits, or restricts a person's
  license or other authorization to practice pharmacy; or
               (2)  assesses an administrative penalty against a
  person.
         (c)  A remedial plan may not be imposed to resolve a
  complaint:
               (1)  concerning:
                     (A)  a death;
                     (B)  a hospitalization; or
                     (C)  the commission of a felony; or
               (2)  in which the appropriate resolution may involve a
  restriction on the manner in which a license holder practices
  pharmacy.
         (d)  The board may not issue a remedial plan to resolve a
  complaint against a license holder if the license holder has
  entered into a remedial plan with the board in the preceding 24
  months for the resolution of a different complaint relating to this
  subtitle.
         (e)  If a license holder complies with and successfully
  completes the terms of a remedial plan, the board shall remove all
  records of the remedial plan from the board's records on the second
  anniversary of the date the license holder successfully completes
  the remedial plan.
         (f)  The board may assess a fee against a license holder
  participating in a remedial plan in an amount necessary to recover
  the costs of administering the plan.
         (g)  The board shall adopt rules necessary to implement this
  section.
         SECTION 6.  Section 565.061, Occupations Code, is amended by
  amending Subsection (a) and adding Subsections (a-1) and (a-2) to
  read as follows:
         (a)  Except as provided by this section and Chapter 564, a
  disciplinary action taken by the board [under Section 565.060 or]
  on the basis of a ground for discipline under Subchapter A is
  governed by Chapter 2001, Government Code, and the rules of
  practice and procedure before the board.
         (a-1)  After receiving the administrative law judge's
  findings of fact and conclusions of law, the board shall dispose of
  the contested case by issuing a final order based on the
  administrative law judge's findings of fact and conclusions of law.
         (a-2)  Notwithstanding Section 2001.058(e), Government
  Code, the board may not change a finding of fact or conclusion of
  law or vacate or modify an order of the administrative law judge.
  The board may obtain judicial review of any finding of fact or
  conclusion of law issued by the administrative law judge as
  provided by Section 2001.058(f)(5), Government Code. For each
  case, the board has the sole authority and discretion to determine
  the appropriate action or sanction, and the administrative law
  judge may not make any recommendation regarding the appropriate
  action or sanction.
         SECTION 7.  (a)  Sections 555.005 and 565.056, Occupations
  Code, as amended by this Act, and Section 555.007(d), Occupations
  Code, as added by this Act, apply only to the investigation of a
  complaint filed on or after the effective date of this Act. The
  investigation of a complaint filed before that date is governed by
  the law in effect on the date the complaint was filed, and that law
  is continued in effect for that purpose.
         (b)  The Texas State Board of Pharmacy shall adopt rules
  under Section 565.060, Occupations Code, as added by this Act, not
  later than January 1, 2014.
         (c)  Section 565.051, Occupations Code, as amended by this
  Act, and Section 565.060, Occupations Code, as added by this Act,
  apply only to a complaint under Subtitle J, Title 3, Occupations
  Code, filed on or after the effective date of this Act. A complaint
  under Subtitle J, Title 3, Occupations Code, filed before that date
  is governed by the law in effect on the date the complaint was
  filed, and that law is continued in effect for that purpose.
         (d)  Section 565.061, Occupations Code, as amended by this
  Act, applies only to a contested case for which an administrative
  law judge employed by the State Office of Administrative Hearings
  issues written findings of fact and conclusions of law on or after
  the effective date of this Act.  A contested case for which an
  administrative law judge employed by the State Office of
  Administrative Hearings issues written findings of fact and
  conclusions of law before the effective date of this Act is governed
  by the law in effect on the date the findings of fact and
  conclusions of law were issued, and the former law is continued in
  effect for that purpose.
         SECTION 8.  This Act takes effect September 1, 2013.