By: Van de Putte S.B. No. 869

(In the Senate - Filed February 26, 2013; March 5, 2013, read first time and referred to Committee on Health and Human Services; March 28, 2013, reported adversely, with favorable Committee Substitute by the following vote: Yeas 9, Nays 0; March 28, 2013, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 869 By: Deuell

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of the practice of pharmacy; authorizing fees.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subsection (e), Section 353.204, Occupations Code, is amended to read as follows:

(e) The Texas State Board of Pharmacy is responsible for enforcing this chapter with regard to a violation of this chapter by a pharmacist. A violation of this chapter by a pharmacist is considered to be a violation of Subtitle J[, other than Chapter 567].

SECTION 2. Section 551.001, Occupations Code, is amended to read as follows:

Sec. 551.001. SHORT TITLE. This [The chapters of this] subtitle[, other than Chapter 567,] may be cited as the Texas Pharmacy Act.

SECTION 3. Section 551.003, Occupations Code, is amended by amending Subdivision (32) and adding Subdivision (32-a) to read as follows:

(32) "Pharmacy technician" means an individual employed by a pharmacy whose responsibility is to provide technical services that do not require professional judgment regarding preparing and distributing drugs and who works under the direct supervision of and is responsible to a pharmacist. The term does not include a pharmacy technician trainee.

(32-a) "Pharmacy technician trainee" means an individual who is registered with the board as a pharmacy technician trainee and is authorized to participate in a pharmacy technician training program.

SECTION 4. Section 554.002, Occupations Code, is amended to read as follows:

Sec. 554.002. REGULATION OF PRACTICE OF PHARMACY. The board shall regulate the practice of pharmacy in this state by:

(1) issuing a license after examination or by reciprocity to an applicant qualified to practice pharmacy and issuing a license to a pharmacy under this subtitle;

(2) renewing a license to practice pharmacy and a license to operate a pharmacy;

(3) determining and issuing standards for recognizing and approving degree requirements of colleges of pharmacy whose graduates are eligible for a license in this state;

(4) specifying and enforcing requirements for practical training, including an internship;

(5) enforcing the provisions of this subtitle relating to:

(A) the conduct or competence of a pharmacist practicing in this state and the conduct of a pharmacy operating in this state; and

(B) the suspension, revocation, retirement, or restriction of a license to practice pharmacy or to operate a pharmacy or the imposition of an administrative penalty or reprimand on a license holder;

(6) regulating the training, qualifications, and employment of a pharmacist-intern, [and] pharmacy technician, and pharmacy technician trainee; and

(7) determining and issuing standards for recognizing and approving a pharmacy residency program for purposes of Subchapter W, Chapter 61, Education Code.

SECTION 5. Subsection (b), Section 554.007, Occupations Code, is amended to read as follows:

(b) The board may receive and spend money, or use gifts, grants, and other funds and assets [from a party, other than the state], in addition to money collected under Subsection (a), in accordance with state law.

SECTION 6. The heading to Section 554.053, Occupations Code, is amended to read as follows:

Sec. 554.053. RULEMAKING: PHARMACY TECHNICIAN AND PHARMACY TECHNICIAN TRAINEE.

SECTION 7. Subsections (a) and (b), Section 554.053, Occupations Code, are amended to read as follows:

(a) The board shall establish rules for the use and the duties of a pharmacy technician and pharmacy technician trainee in a pharmacy licensed by the board. A pharmacy technician and pharmacy technician trainee shall be responsible to and must be directly supervised by a pharmacist.

(b) The board may not adopt a rule establishing a ratio of pharmacists to pharmacy technicians and pharmacy technician trainees in a Class C pharmacy or limiting the number of pharmacy technicians or pharmacy technician trainees that may be used in a Class C pharmacy.

SECTION 8. Section 557.004, Occupations Code, is amended to read as follows:

Sec. 557.004. LIMITATIONS ON REGISTRATION. (a) The board may:

(1) refuse to issue a registration to an applicant; or

(2) restrict, suspend, or revoke a pharmacist-intern registration for a violation of this subtitle.

(b) The board may take disciplinary action against an applicant for a pharmacist-intern registration or the holder of a current or expired pharmacist-intern registration in the same manner as against an applicant for a license or a license holder by imposing a sanction authorized under Section 565.051 if the board finds that the applicant or registration holder has engaged in conduct described by Section 565.001.

SECTION 9. Section 559.003, Occupations Code, is amended by adding Subsection (e) to read as follows:

(e) A person may not renew a license to practice pharmacy if the person holds a license to practice pharmacy in another state that has been suspended, revoked, canceled, or subject to an action that prohibits the person from practicing pharmacy in that state.

SECTION 10. Subsection (b), Section 560.052, Occupations Code, is amended to read as follows:

(b) To qualify for a pharmacy license, an applicant must submit to the board:

(1) a license fee set by the board, except as provided by Subsection (d); and

(2) a completed application that:

(A) is on a form prescribed by the board;

(B) is given under oath; [and]

(C) includes proof that a license held in this state or another state, if applicable, has not been restricted, suspended, revoked, or surrendered for any reason; and

(D) includes a statement of:

(i) the ownership;

(ii) the location of the pharmacy;

(iii) the license number of each pharmacist who is employed by the pharmacy, if the pharmacy is located in this state, or who is licensed to practice pharmacy in this state, if the pharmacy is a Class E pharmacy;

(iv) the license number of the pharmacist-in-charge; and

(v) any other information the board determines necessary.

SECTION 11. Section 561.003, Occupations Code, is amended by adding Subsection (f) to read as follows:

(f) A pharmacy may not renew a license under this section if the pharmacy's license to operate in another state has been suspended, revoked, canceled, or subject to an action that prohibits the pharmacy from operating in that state.

SECTION 12. Section 562.012, Occupations Code, is amended to read as follows:

Sec. 562.012. SUBSTITUTION OF DOSAGE FORM PERMITTED. With the patient's consent [and notification to the practitioner], a pharmacist may dispense a dosage form of a drug different from that prescribed, such as a tablet instead of a capsule or a liquid instead of a tablet, if the dosage form dispensed:

(1) contains the identical amount of the active ingredients as the dosage prescribed for the patient;

(2) is not an enteric-coated or timed release product; and

(3) does not alter desired clinical outcomes.

SECTION 13. Section 562.103, Occupations Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b) A Class A or Class C pharmacy that serves the public shall:

(1) display the word "pharmacy" or a similar word or symbol as determined by the board in a prominent place on the front of the pharmacy; and

(2) display in public view the license of the pharmacist-in-charge of [each pharmacist employed in] the pharmacy.

(c) A pharmacy shall maintain and make available to the public on request proof that each pharmacist, pharmacist-intern, pharmacy technician, and pharmacist technician trainee working in the pharmacy holds the appropriate license or registration.

SECTION 14. Subsection (a), Section 565.001, Occupations Code, is amended to read as follows:

(a) The board may discipline an applicant for or the holder of a current or expired 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 or could prevent 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;

(16) been disciplined by a pharmacy board or by another health [the] regulatory board of this state or another state for conduct substantially equivalent to conduct described under this subsection;

(17) violated a disciplinary 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 or pharmacy technician trainee;

(19) inappropriately delegated a task delegated to a pharmacy technician or pharmacy technician trainee; [or]

(20) been responsible for a drug audit shortage; or

(21) been convicted or adjudicated of a criminal offense that requires registration as a sex offender under Chapter 62, Code of Criminal Procedure.

SECTION 15. 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:

(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;

(3) to an entity in another jurisdiction that:

(A) licenses or disciplines pharmacists or pharmacies; or

(B) registers or disciplines pharmacy technicians or pharmacy technician trainees;

(4) to a pharmaceutical or pharmacy peer review committee as described under Chapter 564;

(5) to a law enforcement agency;

(6) to a person engaged in bona fide research, if all information identifying a specific individual has been deleted; [or]

(7) under a court order; or

(8) to an entity that administers a board-approved pharmacy technician certification examination.

SECTION 16. Subsection (a), Section 565.101, Occupations Code, is amended to read as follows:

(a) A person whose pharmacy license, license to practice pharmacy, [or] pharmacy technician registration, or pharmacy technician trainee registration in this state has been revoked or restricted under this subtitle, whether voluntarily or by board action, may, after the first anniversary of the effective date of the revocation or restriction, petition the board for reinstatement or removal of the restriction of the license or registration.

SECTION 17. The heading to Chapter 568, Occupations Code, is amended to read as follows:

CHAPTER 568. PHARMACY TECHNICIANS AND PHARMACY

TECHNICIAN TRAINEES

SECTION 18. Section 568.001, Occupations Code, is amended to read as follows:

Sec. 568.001. RULES; QUALIFICATIONS [RELATING TO PHARMACY TECHNICIANS]. (a) In establishing rules under Section 554.053(c), the board shall require that:

(1) a pharmacy technician:

(A) [(1)] have a high school diploma or a high school equivalency certificate or be working to achieve an equivalent diploma or certificate; and

(B) [(2)] have passed a board-approved pharmacy technician certification examination; and

(2) a pharmacy technician trainee have a high school diploma or a high school equivalency certificate or be working to achieve an equivalent diploma or certificate.

(b) The board shall adopt rules that permit a pharmacy technician and pharmacy technician trainee to perform only nonjudgmental technical duties under the direct supervision of a pharmacist.

SECTION 19. Section 568.002, Occupations Code, is amended to read as follows:

Sec. 568.002. [PHARMACY TECHNICIAN] REGISTRATION REQUIRED. (a) A person must register with the board before beginning work in a pharmacy in this state as a pharmacy technician or a pharmacy technician trainee [pharmacy technician must register with the board annually or biennially, as determined by board rule, on a form prescribed by the board].

(b) The board may allow a pharmacy technician to petition the board for a special exemption from the pharmacy technician certification requirement if the pharmacy technician[:

[(1)] is in a county with a population of less than 50,000[; or

[(2) on September 1, 2001, has been employed as a pharmacy technician in this state for at least 10 years and the technician's employer approves the petition].

(c) An applicant for registration as a pharmacy technician or a pharmacy technician trainee must:

(1) be of good moral character; and

(2) submit an application on a form prescribed by the board.

(d) A person's registration as a pharmacy technician or pharmacy technician trainee remains in effect as long as the person meets the qualifications established by board rule.

SECTION 20. Subsection (a), Section 568.003, Occupations Code, is amended to read as follows:

(a) The board may take disciplinary action under Section 568.0035 against an applicant for or the holder of a current or expired pharmacy technician or pharmacy technician trainee registration 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 or pharmacy technician trainee;

(4) 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;

(5) developed an incapacity that prevents the applicant or registrant from practicing as a pharmacy technician or pharmacy technician trainee with reasonable skill, competence, and safety to the public;

(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;

(8) performed duties in a pharmacy that only a pharmacist may perform, as defined by the rules of the board;

(9) used alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(10) engaged in negligent, unreasonable, or inappropriate conduct when working in a pharmacy;

(11) violated a disciplinary order;

(12) been convicted or adjudicated of a criminal offense that requires registration as a sex offender under Chapter 62, Code of Criminal Procedure; or

(13) been disciplined by a pharmacy or other health regulatory board of this state or another state for conduct substantially equivalent to conduct described by this subsection.

SECTION 21. Subsection (a), Section 568.0035, Occupations Code, is amended to read as follows:

(a) 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 or pharmacy technician trainee 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 22. Subsection (a), Section 568.0037, Occupations Code, is amended to read as follows:

(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 or pharmacy technician trainee would constitute a continuing threat to the public welfare, the panel shall temporarily suspend or restrict the registration as provided by Subsection (b).

SECTION 23. Section 568.004, Occupations Code, is amended to read as follows:

Sec. 568.004. RENEWAL OF REGISTRATION. The board may adopt a system in which the registrations of pharmacy technicians and pharmacy technician trainees expire on various dates during the year.

SECTION 24. Section 568.005, Occupations Code, is amended to read as follows:

Sec. 568.005. FEES. The board may adopt fees as necessary for the registration of pharmacy technicians and pharmacy technician trainees.

SECTION 25. Section 568.006, Occupations Code, is amended to read as follows:

Sec. 568.006. RATIO OF PHARMACISTS TO PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES. The ratio of pharmacists to pharmacy technicians and pharmacy technician trainees in a Class A pharmacy must be at least one pharmacist for every five pharmacy technicians or pharmacy technician trainees if the Class A pharmacy dispenses not more than 20 different prescription drugs and does not produce intravenous or intramuscular drugs on-site.

SECTION 26. The heading to Section 568.008, Occupations Code, is amended to read as follows:

Sec. 568.008. PHARMACY TECHNICIANS IN HOSPITALS WITH CLINICAL PHARMACY PROGRAM.

SECTION 27. Chapter 568, Occupations Code, is amended by adding Section 568.009 to read as follows:

Sec. 568.009. CHANGE OF ADDRESS OR EMPLOYMENT. Not later than the 10th day after the date of a change of address or employment, a pharmacy technician or a pharmacy technician trainee shall notify the board in writing of the change.

SECTION 28. Subsections (a) and (c), Section 569.001, Occupations Code, are amended to read as follows:

(a) Every insurer or other entity providing pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance covering a pharmacist, pharmacy technician, pharmacy technician trainee, or pharmacy license holder in this state shall submit to the board the information described in Section 569.002 at the time prescribed.

(c) If a pharmacist, pharmacy technician, pharmacy technician trainee, or pharmacy licensed in this state does not carry or is not covered by pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance and is insured by a nonadmitted carrier or other entity providing pharmacy professional liability insurance that does not report under this subtitle, the duty to report information under Section 569.002 is the responsibility of the pharmacist, pharmacy technician, pharmacy technician trainee, or pharmacy license holder.

SECTION 29. Subsection (a), Section 569.002, Occupations Code, is amended to read as follows:

(a) The following information must be furnished to the board not later than the 30th day after receipt by the insurer of the notice of claim letter or complaint from the insured:

(1) the name of the insured and the insured's state pharmacy technician registration number, pharmacy technician trainee registration number, or pharmacist or pharmacy license number;

(2) the policy number; and

(3) a copy of the notice of claim letter or complaint.

SECTION 30. Subsection (b), Section 569.005, Occupations Code, is amended to read as follows:

(b) The board shall review the information relating to a pharmacist, pharmacy technician, pharmacy technician trainee, or pharmacy license holder against whom at least three professional liability claims have been reported within a five-year period in the same manner as if a complaint against the pharmacist, pharmacy technician, pharmacy technician trainee, or pharmacy license holder had been made under Chapter 555.

SECTION 31. Subsection (i), Section 411.081, Government Code, is amended to read as follows:

(i) A criminal justice agency may disclose criminal history record information that is the subject of an order of nondisclosure under Subsection (d) to the following noncriminal justice agencies or entities only:

(1) the State Board for Educator Certification;

(2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement;

(3) the Texas Medical Board;

(4) the Texas School for the Blind and Visually Impaired;

(5) the Board of Law Examiners;

(6) the State Bar of Texas;

(7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code;

(8) the Texas School for the Deaf;

(9) the Department of Family and Protective Services;

(10) the Texas Juvenile Justice Department [Youth Commission];

(11) the Department of Assistive and Rehabilitative Services;

(12) the Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;

(13) the Texas Private Security Board;

(14) a municipal or volunteer fire department;

(15) the Texas Board of Nursing;

(16) a safe house providing shelter to children in harmful situations;

(17) a public or nonprofit hospital or hospital district;

(18) [the Texas Juvenile Probation Commission;

[(19)] the securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner;

(19) [(20)] the Texas State Board of Public Accountancy;

(20) [(21)] the Texas Department of Licensing and Regulation;

(21) [(22)] the Health and Human Services Commission;

(22) [(23)] the Department of Aging and Disability Services;

(23) [(24)] the Texas Education Agency;

(24) [(25)] the Guardianship Certification Board;

(25) [(26)] a county clerk's office in relation to a proceeding for the appointment of a guardian under Chapter XIII, Texas Probate Code;

(26) [(27)] the Department of Information Resources but only regarding an employee, applicant for employment, contractor, subcontractor, intern, or volunteer who provides network security services under Chapter 2059 to:

(A) the Department of Information Resources; or

(B) a contractor or subcontractor of the Department of Information Resources;

(27) [(28)] the Court Reporters Certification Board;

(28) [(29)] the Texas Department of Insurance; [and]

(29) [(30)] the Teacher Retirement System of Texas; and

(30) the Texas State Board of Pharmacy.

SECTION 32. The following provisions of the Occupations Code are repealed:

(1) Chapter 567; and

(2) Section 568.007.

SECTION 33. 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, 2013.

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