81R11079 YDB-D
By: McClendon H.B. No. 2700
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of an electronic system for
monitoring controlled substances and for submitting prescription
drug orders; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle J, Title 3, Occupations Code, is
amended by adding Chapter 570 to read as follows:
CHAPTER 570. ELECTRONIC SYSTEM FOR MONITORING
CONTROLLED SUBSTANCES AND FOR SUBMITTING
PRESCRIPTION DRUG ORDERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 570.001. DEFINITIONS. In this chapter:
(1) "Controlled substance" means a controlled
substance listed in Schedule II, III, IV, or V as established under
Subchapter B, Chapter 481, Health and Safety Code.
(2) "Electronic system" means the electronic system
for monitoring controlled substances and for submitting
prescription drug orders established under this chapter.
(3) "Practitioner" means a person authorized under the
laws of this state to prescribe or dispense a prescription drug or
device.
Sec. 570.002. RULES. The board may adopt the rules
necessary to implement this chapter.
Sec. 570.003. PROHIBITED FEES AND TAXES. The board may not
require a practitioner or a pharmacist to pay a fee or tax
specifically dedicated to the operation of the system.
Sec. 570.004. GIFTS AND GRANTS. The board may accept gifts
or grants from private individuals, foundations, or the federal
government for the purposes of this chapter.
[Sections 570.005-570.050 reserved for expansion]
SUBCHAPTER B. ELECTRONIC SYSTEM
Sec. 570.051. ESTABLISHMENT OF SYSTEM. The board shall
establish an electronic system for:
(1) tracking prescriptions for controlled substances;
(2) monitoring controlled substances that are
dispensed in this state by a practitioner or pharmacist or
dispensed to an address in this state by a pharmacy licensed in this
state;
(3) allowing a practitioner to generate and transmit a
prescription drug order for a prescription drug or device to a
pharmacy or pharmacist for dispensing;
(4) allowing a practitioner to have real-time Internet
access to data in the system for prescribing purposes and for
patient safety; and
(5) alerting the board or law enforcement agencies
when episodes of inappropriate activity are identified by the
system.
Sec. 570.052. DATA SUBMITTED TO BOARD. (a) Each pharmacy
and pharmacist licensed in this state that is authorized to
dispense a controlled substance in this state shall report to the
board the data required by this section in a timely manner as
prescribed by board rule, except that reporting may not be required
for:
(1) a drug administered directly to a patient; or
(2) a drug dispensed by a practitioner at a health care
facility licensed in this state, provided that the quantity
dispensed is limited to an amount adequate to treat the patient for
a maximum of 48 hours.
(b) Data for each controlled substance that is dispensed
must include the following:
(1) a patient identifier;
(2) the name of the drug dispensed;
(3) the date of dispensing;
(4) the quantity dispensed;
(5) the name of the practitioner who prescribed the
controlled substance;
(6) the name and address of the pharmacy or pharmacist
who dispensed the controlled substance; and
(7) any other information required by board rule.
(c) A pharmacy or pharmacist shall provide the data required
under Subsection (b) to the board in the electronic format
specified by board rule unless a waiver has been granted by the
board to an individual pharmacy or pharmacist.
(d) The board shall establish acceptable error tolerance
rates for data submitted under this section. A pharmacy or
pharmacist who submits the data shall ensure that reports fall
within the acceptable tolerances.
(e) A pharmacy or pharmacist who submits incomplete or
inaccurate data shall correct the data on notification by the board
if the pharmacy or pharmacist exceeds the acceptable error
tolerance rates established by the board.
Sec. 570.053. DISCLOSURE OF DATA. (a) The board may
disclose data obtained under this chapter only to persons and
entities authorized to receive that data under this chapter.
Disclosure to any other person or entity, including disclosure in
the context of a civil action in which the disclosure is sought
either for the purpose of discovery or for evidence, is prohibited
unless specifically authorized by this chapter.
(b) The board may provide data obtained under this chapter,
or a report containing or summarizing that data, to:
(1) a designated representative of a board that is
responsible for the licensure, regulation, or discipline of
practitioners, pharmacists, or other persons who are authorized to
prescribe, administer, or dispense controlled substances and that
is involved in a bona fide specific investigation involving a
designated person;
(2) a peace officer licensed in this state, a
certified or full-time peace officer of another state, or a federal
peace officer whose duty is to enforce the laws of this state, of
another state, or of the United States relating to drugs and who is
engaged in a bona fide specific investigation involving a
designated person;
(3) a state-operated Medicaid program;
(4) a properly convened grand jury pursuant to a
subpoena properly issued for the data;
(5) a practitioner or pharmacist who requests
information and certifies that the requested information is for the
purpose of providing medical or pharmaceutical treatment to a bona
fide current patient;
(6) the Texas Medical Board for any physician who is:
(A) associated in a partnership or other business
entity with a physician who is already under investigation by the
Texas Medical Board for improper prescribing practices;
(B) located in a designated geographic area for
which a trend report indicates a substantial likelihood that
inappropriate prescribing may be occurring in that area; or
(C) located in a designated geographic area for
which a report on another physician in that area indicates a
substantial likelihood that inappropriate prescribing may be
occurring in that area;
(7) the Texas Board of Nursing, for any advanced
registered nurse practitioner who is:
(A) associated in a partnership or other business
entity with a physician who is already under investigation by the
Texas Medical Board for improper prescribing practices;
(B) associated in a partnership or other business
entity with an advanced registered nurse practitioner who is
already under investigation by the Texas Board of Nursing for
improper prescribing practices;
(C) located in a designated geographic area for
which a trend report indicates a substantial likelihood that
inappropriate prescribing may be occurring in that area; or
(D) located in a designated geographic area for
which a report on a physician or another advanced registered nurse
practitioner in that area indicates a substantial likelihood that
inappropriate prescribing may be occurring in that area; or
(8) a judge or a probation or parole officer
administering a diversion or probation program of a criminal
defendant arising out of a violation of this chapter or of a
criminal defendant who is documented by the court as a substance
abuser who is eligible to participate in a court-ordered drug
diversion or probation program.
(c) The Health and Human Services Commission may use any
data or reports from the system to identify Medicaid recipients
whose use of controlled substances may be appropriately managed by
a single outpatient pharmacy or primary care physician.
(d) A person who receives data or any report of the system
from the board may not provide it to any other person or entity
except by order of a court and only to a person or entity authorized
to receive the data or the report under this section, except as
provided by Subsections (e) and (f).
(e) A peace officer specified in Subsection (b)(2) who is
authorized to receive data or a report may share that information
with other peace officers specified in that subsection who are
authorized to receive data or a report if the peace officers are
working on a bona fide specific investigation involving a
designated person. The person providing and the person receiving
the data or report under this subsection must document in writing
each person to whom or by whom the data or report has been given or
received and the day, month, and year that the data or report has
been given or received. This document must be maintained in a file
by each law enforcement agency engaged in the investigation.
(f) A representative of the Health and Human Services
Commission may:
(1) share data or reports regarding overutilization by
Medicaid recipients with a board described by Subsection (b)(1) or
with a peace officer specified in Subsection (b)(2); and
(2) submit the data as evidence in an administrative
hearing held in accordance with Chapter 2001, Government Code.
(g) The board, all peace officers specified in Subsection
(b)(2), all officers of the court, and all regulatory agencies and
officers, in using the data for investigative or prosecution
purposes, shall consider the nature of the practitioner's and
pharmacist's practice and the condition for which the patient is
being treated.
(h) The data and any report obtained from the data may not be
a public record, except that the Health and Human Services
Commission may submit the data as evidence in an administrative
hearing held in accordance with Chapter 2001, Government Code.
Sec. 570.054. LIMITATIONS ON DATA IN SYSTEM; ARCHIVE. (a)
The board may limit the length of time that data remains in the
electronic system.
(b) Any data removed from the electronic system must be
archived and subject to retrieval within a reasonable time after a
request from a person authorized to review data under this section.
Sec. 570.055. COOPERATION OF STATE AGENCIES ON CONTINUING
EDUCATION. (a) The board shall work with each board responsible
for the licensure, regulation, or discipline of practitioners or
other persons who are authorized to prescribe, administer, or
dispense controlled substances for the development of a continuing
education program about the purposes and uses of the electronic
system for monitoring established under this chapter.
(b) The board shall work with the State Bar of Texas for the
development of a continuing education program for attorneys about
the purposes and uses of the electronic system established under
this chapter.
(c) The board shall work with the Commission on Law
Enforcement Officer Standards and Education for the development of
a continuing education program for peace officers about the
purposes and uses of the electronic system established under this
chapter.
[Sections 570.056-570.100 reserved for expansion]
SUBCHAPTER C. CRIMINAL PENALTIES
Sec. 570.101. CRIMINAL PENALTIES. (a) A pharmacist or
owner of a pharmacy that intentionally fails to transmit to the
board the data required by Section 570.052 commits an offense. An
offense under this subsection is a Class A misdemeanor for the first
offense and a state jail felony for each subsequent offense.
(b) A person who violates Section 570.053 commits an
offense. An offense under this subsection is a state jail felony
for the first offense and a third degree felony for each subsequent
offense.
SECTION 2. (a) An advisory committee is created to advise
the Texas State Board of Pharmacy on the implementation of Chapter
570, Occupations Code, as added by this Act.
(b) The advisory committee is composed of:
(1) the executive director of the Texas State Board of
Pharmacy or the executive director's designee;
(2) a physician appointed by the governor;
(3) a pharmacist appointed by the governor;
(4) a physician appointed by the lieutenant governor;
(5) a pharmacist appointed by the lieutenant governor;
(6) a physician appointed by the governor from a list
of names submitted by the speaker of the house of representatives;
(7) a pharmacist appointed by the governor from a list
of names submitted by the speaker of the house of representatives;
and
(8) one member from each of the following boards:
(A) Texas Medical Board;
(B) Texas State Board of Pharmacy;
(C) State Board of Dental Examiners; and
(D) Texas Board of Nursing.
(c) The executive director of the Texas State Board of
Pharmacy or the executive director's designee is the presiding
officer of the advisory committee. The committee shall meet at the
call of the presiding officer or at the request of any three members
other than the presiding officer.
(d) The advisory committee shall:
(1) develop recommendations regarding the improvement
of the official prescription program established by Section
481.075, Health and Safety Code;
(2) develop recommendations regarding the
implementation of the electronic system for monitoring controlled
substances established under Chapter 570, Occupations Code;
(3) develop recommendations on the data that should be
provided to the Texas State Board of Pharmacy to support the
electronic system for monitoring controlled substances, including
provider identification information;
(4) monitor and develop recommendations regarding the
implementation and enforcement of the electronic system for
monitoring controlled substances;
(5) develop recommended procedures necessary for
real-time point-of-service access for a practitioner authorized to
prescribe or dispense controlled substances listed in Schedules II
through V so that the practitioner may obtain:
(A) the prescription history for a particular
patient; or
(B) the practitioner's own dispensing or
prescribing activity; and
(6) develop recommended procedures that should be
followed by the Texas State Board of Pharmacy and the applicable
licensing authority of this state, another state, or the United
States when:
(A) the board shares information related to
diversion of controlled substances with a licensing authority for
the purpose of licensing enforcement; or
(B) a licensing authority shares information
related to diversion of controlled substances with the board for
the purpose of criminal enforcement.
(e) The executive director of the Texas State Board of
Pharmacy shall report the recommendations developed under
Subsection (d) of this section to the governor, lieutenant
governor, speaker of the house of representatives, and appropriate
committees of the senate and the house of representatives not later
than July 1, 2010.
(f) This section expires and the advisory committee is
abolished September 1, 2011.
SECTION 3. The executive director of the Texas State Board
of Pharmacy or the executive director's designee shall adopt any
rules necessary to administer and enforce Chapter 570, Occupations
Code, as added by this Act, not later than January 1, 2010.
SECTION 4. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Subchapter C, Chapter 570, Occupations Code, as added by
this Act, takes effect September 1, 2010.