Texas 2009 - 81st Regular

Texas House Bill HB2700 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R11079 YDB-D
2	2	By: McClendon H.B. No. 2700
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the establishment of an electronic system for
8	8	monitoring controlled substances and for submitting prescription
9	9	drug orders; providing criminal penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subtitle J, Title 3, Occupations Code, is
12	12	amended by adding Chapter 570 to read as follows:
13	13	CHAPTER 570. ELECTRONIC SYSTEM FOR MONITORING
14	14	CONTROLLED SUBSTANCES AND FOR SUBMITTING
15	15	PRESCRIPTION DRUG ORDERS
16	16	SUBCHAPTER A. GENERAL PROVISIONS
17	17	Sec. 570.001. DEFINITIONS. In this chapter:
18	18	(1) "Controlled substance" means a controlled
19	19	substance listed in Schedule II, III, IV, or V as established under
20	20	Subchapter B, Chapter 481, Health and Safety Code.
21	21	(2) "Electronic system" means the electronic system
22	22	for monitoring controlled substances and for submitting
23	23	prescription drug orders established under this chapter.
24	24	(3) "Practitioner" means a person authorized under the
25	25	laws of this state to prescribe or dispense a prescription drug or
26	26	device.
27	27	Sec. 570.002. RULES. The board may adopt the rules
28	28	necessary to implement this chapter.
29	29	Sec. 570.003. PROHIBITED FEES AND TAXES. The board may not
30	30	require a practitioner or a pharmacist to pay a fee or tax
31	31	specifically dedicated to the operation of the system.
32	32	Sec. 570.004. GIFTS AND GRANTS. The board may accept gifts
33	33	or grants from private individuals, foundations, or the federal
34	34	government for the purposes of this chapter.
35	35	[Sections 570.005-570.050 reserved for expansion]
36	36	SUBCHAPTER B. ELECTRONIC SYSTEM
37	37	Sec. 570.051. ESTABLISHMENT OF SYSTEM. The board shall
38	38	establish an electronic system for:
39	39	(1) tracking prescriptions for controlled substances;
40	40	(2) monitoring controlled substances that are
41	41	dispensed in this state by a practitioner or pharmacist or
42	42	dispensed to an address in this state by a pharmacy licensed in this
43	43	state;
44	44	(3) allowing a practitioner to generate and transmit a
45	45	prescription drug order for a prescription drug or device to a
46	46	pharmacy or pharmacist for dispensing;
47	47	(4) allowing a practitioner to have real-time Internet
48	48	access to data in the system for prescribing purposes and for
49	49	patient safety; and
50	50	(5) alerting the board or law enforcement agencies
51	51	when episodes of inappropriate activity are identified by the
52	52	system.
53	53	Sec. 570.052. DATA SUBMITTED TO BOARD. (a) Each pharmacy
54	54	and pharmacist licensed in this state that is authorized to
55	55	dispense a controlled substance in this state shall report to the
56	56	board the data required by this section in a timely manner as
57	57	prescribed by board rule, except that reporting may not be required
58	58	for:
59	59	(1) a drug administered directly to a patient; or
60	60	(2) a drug dispensed by a practitioner at a health care
61	61	facility licensed in this state, provided that the quantity
62	62	dispensed is limited to an amount adequate to treat the patient for
63	63	a maximum of 48 hours.
64	64	(b) Data for each controlled substance that is dispensed
65	65	must include the following:
66	66	(1) a patient identifier;
67	67	(2) the name of the drug dispensed;
68	68	(3) the date of dispensing;
69	69	(4) the quantity dispensed;
70	70	(5) the name of the practitioner who prescribed the
71	71	controlled substance;
72	72	(6) the name and address of the pharmacy or pharmacist
73	73	who dispensed the controlled substance; and
74	74	(7) any other information required by board rule.
75	75	(c) A pharmacy or pharmacist shall provide the data required
76	76	under Subsection (b) to the board in the electronic format
77	77	specified by board rule unless a waiver has been granted by the
78	78	board to an individual pharmacy or pharmacist.
79	79	(d) The board shall establish acceptable error tolerance
80	80	rates for data submitted under this section. A pharmacy or
81	81	pharmacist who submits the data shall ensure that reports fall
82	82	within the acceptable tolerances.
83	83	(e) A pharmacy or pharmacist who submits incomplete or
84	84	inaccurate data shall correct the data on notification by the board
85	85	if the pharmacy or pharmacist exceeds the acceptable error
86	86	tolerance rates established by the board.
87	87	Sec. 570.053. DISCLOSURE OF DATA. (a) The board may
88	88	disclose data obtained under this chapter only to persons and
89	89	entities authorized to receive that data under this chapter.
90	90	Disclosure to any other person or entity, including disclosure in
91	91	the context of a civil action in which the disclosure is sought
92	92	either for the purpose of discovery or for evidence, is prohibited
93	93	unless specifically authorized by this chapter.
94	94	(b) The board may provide data obtained under this chapter,
95	95	or a report containing or summarizing that data, to:
96	96	(1) a designated representative of a board that is
97	97	responsible for the licensure, regulation, or discipline of
98	98	practitioners, pharmacists, or other persons who are authorized to
99	99	prescribe, administer, or dispense controlled substances and that
100	100	is involved in a bona fide specific investigation involving a
101	101	designated person;
102	102	(2) a peace officer licensed in this state, a
103	103	certified or full-time peace officer of another state, or a federal
104	104	peace officer whose duty is to enforce the laws of this state, of
105	105	another state, or of the United States relating to drugs and who is
106	106	engaged in a bona fide specific investigation involving a
107	107	designated person;
108	108	(3) a state-operated Medicaid program;
109	109	(4) a properly convened grand jury pursuant to a
110	110	subpoena properly issued for the data;
111	111	(5) a practitioner or pharmacist who requests
112	112	information and certifies that the requested information is for the
113	113	purpose of providing medical or pharmaceutical treatment to a bona
114	114	fide current patient;
115	115	(6) the Texas Medical Board for any physician who is:
116	116	(A) associated in a partnership or other business
117	117	entity with a physician who is already under investigation by the
118	118	Texas Medical Board for improper prescribing practices;
119	119	(B) located in a designated geographic area for
120	120	which a trend report indicates a substantial likelihood that
121	121	inappropriate prescribing may be occurring in that area; or
122	122	(C) located in a designated geographic area for
123	123	which a report on another physician in that area indicates a
124	124	substantial likelihood that inappropriate prescribing may be
125	125	occurring in that area;
126	126	(7) the Texas Board of Nursing, for any advanced
127	127	registered nurse practitioner who is:
128	128	(A) associated in a partnership or other business
129	129	entity with a physician who is already under investigation by the
130	130	Texas Medical Board for improper prescribing practices;
131	131	(B) associated in a partnership or other business
132	132	entity with an advanced registered nurse practitioner who is
133	133	already under investigation by the Texas Board of Nursing for
134	134	improper prescribing practices;
135	135	(C) located in a designated geographic area for
136	136	which a trend report indicates a substantial likelihood that
137	137	inappropriate prescribing may be occurring in that area; or
138	138	(D) located in a designated geographic area for
139	139	which a report on a physician or another advanced registered nurse
140	140	practitioner in that area indicates a substantial likelihood that
141	141	inappropriate prescribing may be occurring in that area; or
142	142	(8) a judge or a probation or parole officer
143	143	administering a diversion or probation program of a criminal
144	144	defendant arising out of a violation of this chapter or of a
145	145	criminal defendant who is documented by the court as a substance
146	146	abuser who is eligible to participate in a court-ordered drug
147	147	diversion or probation program.
148	148	(c) The Health and Human Services Commission may use any
149	149	data or reports from the system to identify Medicaid recipients
150	150	whose use of controlled substances may be appropriately managed by
151	151	a single outpatient pharmacy or primary care physician.
152	152	(d) A person who receives data or any report of the system
153	153	from the board may not provide it to any other person or entity
154	154	except by order of a court and only to a person or entity authorized
155	155	to receive the data or the report under this section, except as
156	156	provided by Subsections (e) and (f).
157	157	(e) A peace officer specified in Subsection (b)(2) who is
158	158	authorized to receive data or a report may share that information
159	159	with other peace officers specified in that subsection who are
160	160	authorized to receive data or a report if the peace officers are
161	161	working on a bona fide specific investigation involving a
162	162	designated person. The person providing and the person receiving
163	163	the data or report under this subsection must document in writing
164	164	each person to whom or by whom the data or report has been given or
165	165	received and the day, month, and year that the data or report has
166	166	been given or received. This document must be maintained in a file
167	167	by each law enforcement agency engaged in the investigation.
168	168	(f) A representative of the Health and Human Services
169	169	Commission may:
170	170	(1) share data or reports regarding overutilization by
171	171	Medicaid recipients with a board described by Subsection (b)(1) or
172	172	with a peace officer specified in Subsection (b)(2); and
173	173	(2) submit the data as evidence in an administrative
174	174	hearing held in accordance with Chapter 2001, Government Code.
175	175	(g) The board, all peace officers specified in Subsection
176	176	(b)(2), all officers of the court, and all regulatory agencies and
177	177	officers, in using the data for investigative or prosecution
178	178	purposes, shall consider the nature of the practitioner's and
179	179	pharmacist's practice and the condition for which the patient is
180	180	being treated.
181	181	(h) The data and any report obtained from the data may not be
182	182	a public record, except that the Health and Human Services
183	183	Commission may submit the data as evidence in an administrative
184	184	hearing held in accordance with Chapter 2001, Government Code.
185	185	Sec. 570.054. LIMITATIONS ON DATA IN SYSTEM; ARCHIVE. (a)
186	186	The board may limit the length of time that data remains in the
187	187	electronic system.
188	188	(b) Any data removed from the electronic system must be
189	189	archived and subject to retrieval within a reasonable time after a
190	190	request from a person authorized to review data under this section.
191	191	Sec. 570.055. COOPERATION OF STATE AGENCIES ON CONTINUING
192	192	EDUCATION. (a) The board shall work with each board responsible
193	193	for the licensure, regulation, or discipline of practitioners or
194	194	other persons who are authorized to prescribe, administer, or
195	195	dispense controlled substances for the development of a continuing
196	196	education program about the purposes and uses of the electronic
197	197	system for monitoring established under this chapter.
198	198	(b) The board shall work with the State Bar of Texas for the
199	199	development of a continuing education program for attorneys about
200	200	the purposes and uses of the electronic system established under
201	201	this chapter.
202	202	(c) The board shall work with the Commission on Law
203	203	Enforcement Officer Standards and Education for the development of
204	204	a continuing education program for peace officers about the
205	205	purposes and uses of the electronic system established under this
206	206	chapter.
207	207	[Sections 570.056-570.100 reserved for expansion]
208	208	SUBCHAPTER C. CRIMINAL PENALTIES
209	209	Sec. 570.101. CRIMINAL PENALTIES. (a) A pharmacist or
210	210	owner of a pharmacy that intentionally fails to transmit to the
211	211	board the data required by Section 570.052 commits an offense. An
212	212	offense under this subsection is a Class A misdemeanor for the first
213	213	offense and a state jail felony for each subsequent offense.
214	214	(b) A person who violates Section 570.053 commits an
215	215	offense. An offense under this subsection is a state jail felony
216	216	for the first offense and a third degree felony for each subsequent
217	217	offense.
218	218	SECTION 2. (a) An advisory committee is created to advise
219	219	the Texas State Board of Pharmacy on the implementation of Chapter
220	220	570, Occupations Code, as added by this Act.
221	221	(b) The advisory committee is composed of:
222	222	(1) the executive director of the Texas State Board of
223	223	Pharmacy or the executive director's designee;
224	224	(2) a physician appointed by the governor;
225	225	(3) a pharmacist appointed by the governor;
226	226	(4) a physician appointed by the lieutenant governor;
227	227	(5) a pharmacist appointed by the lieutenant governor;
228	228	(6) a physician appointed by the governor from a list
229	229	of names submitted by the speaker of the house of representatives;
230	230	(7) a pharmacist appointed by the governor from a list
231	231	of names submitted by the speaker of the house of representatives;
232	232	and
233	233	(8) one member from each of the following boards:
234	234	(A) Texas Medical Board;
235	235	(B) Texas State Board of Pharmacy;
236	236	(C) State Board of Dental Examiners; and
237	237	(D) Texas Board of Nursing.
238	238	(c) The executive director of the Texas State Board of
239	239	Pharmacy or the executive director's designee is the presiding
240	240	officer of the advisory committee. The committee shall meet at the
241	241	call of the presiding officer or at the request of any three members
242	242	other than the presiding officer.
243	243	(d) The advisory committee shall:
244	244	(1) develop recommendations regarding the improvement
245	245	of the official prescription program established by Section
246	246	481.075, Health and Safety Code;
247	247	(2) develop recommendations regarding the
248	248	implementation of the electronic system for monitoring controlled
249	249	substances established under Chapter 570, Occupations Code;
250	250	(3) develop recommendations on the data that should be
251	251	provided to the Texas State Board of Pharmacy to support the
252	252	electronic system for monitoring controlled substances, including
253	253	provider identification information;
254	254	(4) monitor and develop recommendations regarding the
255	255	implementation and enforcement of the electronic system for
256	256	monitoring controlled substances;
257	257	(5) develop recommended procedures necessary for
258	258	real-time point-of-service access for a practitioner authorized to
259	259	prescribe or dispense controlled substances listed in Schedules II
260	260	through V so that the practitioner may obtain:
261	261	(A) the prescription history for a particular
262	262	patient; or
263	263	(B) the practitioner's own dispensing or
264	264	prescribing activity; and
265	265	(6) develop recommended procedures that should be
266	266	followed by the Texas State Board of Pharmacy and the applicable
267	267	licensing authority of this state, another state, or the United
268	268	States when:
269	269	(A) the board shares information related to
270	270	diversion of controlled substances with a licensing authority for
271	271	the purpose of licensing enforcement; or
272	272	(B) a licensing authority shares information
273	273	related to diversion of controlled substances with the board for
274	274	the purpose of criminal enforcement.
275	275	(e) The executive director of the Texas State Board of
276	276	Pharmacy shall report the recommendations developed under
277	277	Subsection (d) of this section to the governor, lieutenant
278	278	governor, speaker of the house of representatives, and appropriate
279	279	committees of the senate and the house of representatives not later
280	280	than July 1, 2010.
281	281	(f) This section expires and the advisory committee is
282	282	abolished September 1, 2011.
283	283	SECTION 3. The executive director of the Texas State Board
284	284	of Pharmacy or the executive director's designee shall adopt any
285	285	rules necessary to administer and enforce Chapter 570, Occupations
286	286	Code, as added by this Act, not later than January 1, 2010.
287	287	SECTION 4. (a) Except as provided by Subsection (b) of
288	288	this section, this Act takes effect September 1, 2009.
289	289	(b) Subchapter C, Chapter 570, Occupations Code, as added by
290	290	this Act, takes effect September 1, 2010.