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A BILL TO BE ENTITLED
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AN ACT
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relating to prescribing and dispensing controlled substances and |
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monitoring the prescribing and dispensing of controlled substances |
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under the Texas Controlled Substances Act; providing for |
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administrative penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter C, Chapter 481, Health and Safety |
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Code, is amended by adding Sections 481.0751 and 481.0755 to read as |
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follows: |
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Sec. 481.0751. DISPENSING VETERINARIANS. (a) This section |
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applies to a veterinarian who holds a registration issued by the |
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Federal Drug Enforcement Administration and dispenses Schedule II, |
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III, IV, or V controlled substances directly to the owner or handler |
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of an animal. |
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(b) Not later than the 30th day after the date the |
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veterinarian dispenses a controlled substance, the veterinarian |
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shall submit to the board: |
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(1) the name, strength, and quantity of the substance |
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dispensed; |
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(2) the date the substance was dispensed; |
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(3) the name of the animal; |
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(4) the species, gender, and actual or estimated date |
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of birth of the animal; |
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(5) the name and address of the animal's owner; and |
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(6) the name, address, Federal Drug Enforcement |
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Administration number, and telephone number of the veterinarian at |
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the veterinarian's usual place of business. |
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(c) A veterinarian shall retain a record of the information |
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submitted to the board under Subsection (b) for a period of not less |
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than two years after the date the substance is dispensed. |
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(d) Failure to comply with this section is grounds for |
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disciplinary action by the State Board of Veterinary Medical |
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Examiners. |
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Sec. 481.0755. WRITTEN, ORAL, AND TELEPHONICALLY |
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COMMUNICATED PRESCRIPTIONS. (a) Notwithstanding Sections |
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481.073, 481.074, and 481.075, a person prescribing or dispensing a |
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controlled substance must use the electronic prescription record |
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and may not use a written, oral, or telephonically communicated |
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prescription. |
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(b) A prescriber may issue a written, oral, or |
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telephonically communicated prescription for a controlled |
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substance as authorized under this subchapter only if the |
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prescription is issued: |
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(1) by a veterinarian; |
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(2) in circumstances in which electronic prescribing |
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is not available due to temporary technological or electronic |
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failure, as prescribed by board rule; |
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(3) by a practitioner to be dispensed by a pharmacy |
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located outside this state, as prescribed by board rule; |
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(4) when the prescriber and dispenser are the same |
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entity; |
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(5) in circumstances in which necessary elements are |
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not supported by the most recent electronic prescription drug |
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software; |
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(6) for a drug for which the United States Food and |
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Drug Administration requires additional information in the |
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prescription that is not possible with electronic prescribing; |
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(7) for a non-patient-specific prescription pursuant |
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to a standing order, approved protocol for drug therapy, |
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collaborative drug management, or comprehensive medication |
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management, in response to a public health emergency or in other |
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circumstances in which the practitioner may issue a |
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non-patient-specific prescription; |
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(8) for a drug under a research protocol; |
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(9) by a practitioner who has received a waiver under |
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Subsection (c) from the requirement to use electronic prescribing; |
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or |
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(10) under circumstances in which the practitioner has |
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the present ability to submit an electronic prescription but |
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reasonably determines that it would be impractical for the patient |
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to obtain the drugs prescribed under the electronic prescription in |
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a timely manner and that a delay would adversely impact the |
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patient's medical condition. |
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(c) The board shall adopt rules establishing a process by |
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which a practitioner may request and receive a waiver under |
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Subsection (b)(9), not to exceed one year, from the requirement to |
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use electronic prescribing. The board shall adopt rules |
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establishing the eligibility for a waiver, including: |
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(1) economic hardship; |
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(2) technological limitations not reasonably within |
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the control of the practitioner; or |
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(3) other exceptional circumstances demonstrated by |
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the practitioner. |
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(d) A written, oral, or telephonically communicated |
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prescription must comply with the applicable requirements |
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prescribed by Sections 481.074 and 481.075. |
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(e) A dispensing pharmacist who receives a controlled |
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substance prescription in a manner other than electronically is not |
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required to verify that the prescription is exempt from the |
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requirement that it be submitted electronically. |
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(f) The board shall enforce this section. |
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SECTION 2. Sections 481.076(a), (f), (g), and (h), Health |
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and Safety Code, are amended to read as follows: |
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(a) The board may not permit any person to have access to |
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information submitted to the board under Section 481.074(q) or |
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481.075 except: |
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(1) the board, the Texas Medical Board, the Texas |
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Department of Licensing and Regulation, with respect to the |
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regulation of podiatrists [State Board of Podiatric Medical
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Examiners], the State Board of Dental Examiners, the State Board of |
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Veterinary Medical Examiners, the Texas Board of Nursing, or the |
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Texas Optometry Board for the purpose of: |
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(A) investigating a specific license holder; or |
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(B) monitoring for potentially harmful |
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prescribing or dispensing patterns or practices under Section |
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481.0762; |
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(2) an [authorized officer or member of the department
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or] authorized employee of the board engaged in the administration, |
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investigation, or enforcement of this chapter or another law |
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governing illicit drugs in this state or another state; |
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(3) the department or other [on behalf of a] law |
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enforcement or prosecutorial official engaged in the |
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administration, investigation, or enforcement of this chapter or |
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another law governing illicit drugs in this state or another state, |
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if the board is provided a warrant, subpoena, or other court order |
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compelling the disclosure; |
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(4) a medical examiner conducting an investigation; |
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(5) provided that accessing the information is |
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authorized under the Health Insurance Portability and |
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Accountability Act of 1996 (Pub. L. No. 104-191) and regulations |
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adopted under that Act: |
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(A) a pharmacist or a pharmacy technician, as |
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defined by Section 551.003, Occupations Code, acting at the |
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direction of a pharmacist; or |
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(B) a practitioner who: |
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(i) is a physician, dentist, veterinarian, |
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podiatrist, optometrist, or advanced practice nurse or is a |
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physician assistant described by Section 481.002(39)(D) or an |
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employee or other agent of a practitioner acting at the direction of |
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a practitioner; and |
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(ii) is inquiring about a recent Schedule |
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II, III, IV, or V prescription history of a particular patient of |
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the practitioner; |
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(6) a pharmacist or practitioner who is inquiring |
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about the person's own dispensing or prescribing activity; [or] |
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(7) one or more states or an association of states with |
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which the board has an interoperability agreement, as provided by |
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Subsection (j); or |
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(8) a health care facility certified by the federal |
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Centers for Medicare and Medicaid Services. |
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(f) If the board accesses [director permits access to] |
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information under Subsection (a)(2) relating to a person licensed |
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or regulated by an agency listed in Subsection (a)(1), the board |
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[director] shall notify and cooperate with that agency regarding |
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the disposition of the matter before taking action against the |
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person, unless the board [director] determines that notification is |
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reasonably likely to interfere with an administrative or criminal |
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investigation or prosecution. |
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(g) If the board provides [director permits] access to |
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information under Subsection (a)(3) relating to a person licensed |
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or regulated by an agency listed in Subsection (a)(1), the board |
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[director] shall notify that agency of the disclosure of the |
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information not later than the 10th working day after the date the |
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information is disclosed. |
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(h) If the board [director] withholds notification to an |
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agency under Subsection (f), the board [director] shall notify the |
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agency of the disclosure of the information and the reason for |
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withholding notification when the board [director] determines that |
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notification is no longer likely to interfere with an |
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administrative or criminal investigation or prosecution. |
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SECTION 3. Subchapter C, Chapter 481, Health and Safety |
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Code, is amended by adding Sections 481.07635, 481.07655, and |
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481.0768 to read as follows: |
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Sec. 481.07635. PRESCRIPTIONS OF OPIOIDS. (a) In this |
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section, "acute pain" means pain with abrupt onset that is caused by |
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an injury or other process that is not ongoing. |
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(b) For the initial treatment of acute pain, a prescriber |
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may not issue a prescription for an opioid in an amount that exceeds |
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a 14-day supply. |
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Sec. 481.07655. LIMITATION OF LIABILITY. (a) A prescriber |
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or dispenser is not liable in a civil action for damages arising |
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from the failure to access prescription drug information as |
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required or authorized by Section 481.0764 or failure to submit the |
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information to the board as required under Section 481.074(q) or |
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481.075, unless the failure constitutes gross negligence or wilful |
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misconduct and the prescriber or dispenser would be liable to the |
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claimant under other law. |
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(b) This section does not establish a standard of care. |
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Sec. 481.0768. ADMINISTRATIVE PENALTY: DISCLOSURE OR USE |
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OF INFORMATION. (a) A person authorized to receive information |
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under Section 481.076(a) may not disclose or use the information in |
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a manner not authorized by this subchapter or other law. |
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(b) A regulatory agency that issues a license, |
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certification, or registration to a prescriber or dispenser shall |
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periodically update the administrative penalties, or any |
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applicable disciplinary guidelines concerning the penalties, |
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assessed by that agency for conduct that violates Subsection (a). |
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(c) The agency shall set the penalties in an amount |
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sufficient to deter the conduct. |
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SECTION 4. Section 481.003(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The director may adopt rules to administer and enforce |
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this chapter, other than Sections 481.073, 481.074, 481.075, |
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481.076, 481.0761, 481.0762, 481.0763, 481.07635, 481.0764, |
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481.0765, 481.07655, [and] 481.0766, and 481.0768. The board may |
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adopt rules to administer Sections 481.073, 481.074, 481.075, |
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481.0751, 481.0755, 481.076, 481.0761, 481.0762, 481.0763, |
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481.07635, 481.0764, 481.0765, 481.07655, [and] 481.0766, and |
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481.0768. |
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SECTION 5. Section 481.128(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A registrant or dispenser commits an offense if the |
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registrant or dispenser knowingly: |
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(1) distributes, delivers, administers, or dispenses |
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a controlled substance in violation of Subchapter C [Sections
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481.070-481.075]; |
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(2) manufactures a controlled substance not |
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authorized by the person's Federal Drug Enforcement Administration |
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registration or distributes or dispenses a controlled substance not |
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authorized by the person's registration to another registrant or |
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other person; |
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(3) refuses or fails to make, keep, or furnish a |
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record, report, notification, order form, statement, invoice, or |
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information required by this chapter; |
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(4) prints, manufactures, possesses, or produces an |
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official prescription form without the approval of the board; |
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(5) delivers or possesses a counterfeit official |
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prescription form; |
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(6) refuses an entry into a premise for an inspection |
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authorized by this chapter; |
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(7) refuses or fails to return an official |
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prescription form as required by Section 481.075(k); |
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(8) refuses or fails to make, keep, or furnish a |
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record, report, notification, order form, statement, invoice, or |
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information required by a rule adopted by the director or the board; |
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or |
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(9) refuses or fails to maintain security required by |
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this chapter or a rule adopted under this chapter. |
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SECTION 6. Section 481.129(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A person commits an offense if the person knowingly: |
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(1) distributes as a registrant or dispenser a |
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controlled substance listed in Schedule I or II, unless the person |
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distributes the controlled substance as authorized under the |
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federal Controlled Substances Act (21 U.S.C. Section 801 et seq.); |
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(2) uses in the course of manufacturing, prescribing, |
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or distributing a controlled substance a Federal Drug Enforcement |
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Administration registration number that is fictitious, revoked, |
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suspended, or issued to another person; |
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(3) issues a prescription bearing a forged or |
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fictitious signature; |
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(4) uses a prescription issued to another person to |
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prescribe a Schedule II controlled substance; |
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(5) possesses, obtains, or attempts to possess or |
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obtain a controlled substance or an increased quantity of a |
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controlled substance: |
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(A) by misrepresentation, fraud, forgery, |
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deception, or subterfuge; |
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(B) through use of a fraudulent prescription |
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form; [or] |
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(C) through use of a fraudulent oral or |
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telephonically communicated prescription; or |
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(D) through the use of a fraudulent electronic |
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prescription; or |
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(6) furnishes false or fraudulent material |
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information in or omits material information from an application, |
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report, record, or other document required to be kept or filed under |
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this chapter. |
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SECTION 7. Section 554.051(a-1), Occupations Code, is |
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amended to read as follows: |
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(a-1) The board may adopt rules to administer Sections |
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481.073, 481.074, 481.075, 481.0751, 481.0755, 481.076, 481.0761, |
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481.0762, 481.0763, 481.07635, 481.0764, 481.0765, 481.07655, |
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[and] 481.0766, and 481.0768, Health and Safety Code. |
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SECTION 8. Section 565.003, Occupations Code, is amended to |
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read as follows: |
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Sec. 565.003. ADDITIONAL GROUNDS FOR DISCIPLINE REGARDING |
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APPLICANT FOR OR HOLDER OF NONRESIDENT PHARMACY LICENSE. Unless |
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compliance would violate the pharmacy or drug statutes or rules in |
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the state in which the pharmacy is located, the board may discipline |
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an applicant for or the holder of a nonresident pharmacy license if |
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the board finds that the applicant or license holder has failed to |
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comply with: |
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(1) Section 481.073, 481.074, [or] 481.075, 481.0751, |
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481.0755, 481.076, 481.0761, 481.0762, 481.0763, 481.07635, |
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481.0764, 481.0765, 481.07655, 481.0766, or 481.0768, Health and |
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Safety Code; |
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(2) Texas substitution requirements regarding: |
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(A) the practitioner's directions concerning |
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generic substitution; |
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(B) the patient's right to refuse generic |
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substitution; or |
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(C) notification to the patient of the patient's |
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right to refuse substitution; |
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(3) any board rule relating to providing drug |
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information to the patient or the patient's agent in written form or |
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by telephone; or |
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(4) any board rule adopted under Section 554.051(a) |
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and determined by the board to be applicable under Section |
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554.051(b). |
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SECTION 9. Sections 481.076(a-3), (a-4), and (a-5), Health |
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and Safety Code, are repealed. |
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SECTION 10. To the extent of any conflict, this Act prevails |
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over another Act of the 86th Legislature, Regular Session, 2019, |
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relating to nonsubstantive additions to and corrections in enacted |
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codes. |
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SECTION 11. Section 481.0751, Health and Safety Code, as |
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added by this Act, applies only to a controlled substance dispensed |
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on or after the effective date of this Act. |
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SECTION 12. Sections 481.0755, 481.07635, and 481.07655, |
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Health and Safety Code, as added by this Act, apply only to a |
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prescription issued on or after the effective date of this Act. |
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SECTION 13. Section 481.0768(a), Health and Safety Code, as |
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added by this Act, applies only to conduct that occurs on or after |
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the effective date of this Act. |
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SECTION 14. This Act takes effect September 1, 2019. |