By: Van de Putte S.B. No. 1438
(In the Senate - Filed March 10, 2011; March 22, 2011, read
first time and referred to Committee on Health and Human Services;
April 21, 2011, reported favorably by the following vote: Yeas 9,
Nays 0; April 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the program for impaired pharmacists and disciplinary
proceedings conducted by the Texas State Board of Pharmacy.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a) and (b), Section 564.001,
Occupations Code, are amended to read as follows:
(a) An individual or entity [A person], including a
pharmaceutical peer review committee, who has knowledge relating to
an action or omission of a pharmacist in this state or a pharmacy
student who is enrolled in the professional sequence of an
accredited pharmacy degree program approved by the board that might
provide grounds for disciplinary action under Section
565.001(a)(4) or (7) may report relevant facts to the board.
(b) A committee of a professional society composed
primarily of pharmacists, the staff of the committee, or a district
or local intervenor participating in a program established to aid
pharmacists or [eligible] pharmacy students impaired by chemical
abuse or mental or physical illness may report in writing to the
board the name of an impaired pharmacist or pharmacy student and the
relevant information relating to the impairment.
SECTION 2. Section 564.002, Occupations Code, is amended to
read as follows:
Sec. 564.002. CONFIDENTIALITY. (a) All [The] records and
proceedings of the board, an authorized agent of the board, or a
pharmaceutical organization committee relating to the
administration of this chapter [described under Section 564.001(a)
or (b), in connection with a report under Section 564.001(a) or
(b),] are confidential and are not considered public information
for purposes of Chapter 552, Government Code. Records considered
confidential under this section include:
(1) information relating to a report made under
Section 564.001, including the identity of the individual or entity
making the report;
(2) the identity of an impaired pharmacist or pharmacy
student participating in a program administered under this chapter,
except as provided by Section 564.003;
(3) a report, interview, statement, memorandum,
evaluation, communication, or other information possessed by the
board, an authorized agent of the board, or a pharmaceutical
organization committee, related to a potentially impaired
pharmacist or pharmacy student;
(4) a policy or procedure of an entity that contracts
with the board relating to personnel selection; and
(5) a record relating to the operation of the board, an
authorized agent of the board, or a pharmaceutical organization
committee, as the record relates to a potentially impaired
pharmacist or pharmacy student.
(b) A record or proceeding described by this section is not
subject to disclosure, subpoena, or discovery, except to a member
of the board or an authorized agent of the board involved in the
discipline of an applicant or license holder.
SECTION 3. Section 564.003, Occupations Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) The board may disclose information confidential under
Section 564.002 only:
(1) during a proceeding conducted by [in a
disciplinary hearing before] the State Office of Administrative
Hearings, the board, or a panel of the board, or in a subsequent
trial or appeal of a board action or order;
(2) to a pharmacist licensing or disciplinary
authority of another jurisdiction;
(3) under a court order; [or]
(4) 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, if the information is
necessary for preparation for, or a presentation in, the
proceeding; or
(5) as provided by Subsection (b).
(a-1) Information that is disclosed under Subsection (a)
remains confidential and is not subject to discovery or subpoena in
a civil suit and may not be introduced as evidence in any action
other than an appeal of a board action.
(a-2) Information that is confidential under Section
564.002 and that is admitted under seal in a proceeding conducted by
the State Office of Administrative Hearings is confidential
information for the purpose of a subsequent trial or appeal.
SECTION 4. Subsection (a), Section 564.004, Occupations
Code, is amended to read as follows:
(a) Any person, including a board employee or member, peer
review committee member, pharmaceutical organization committee
member, or pharmaceutical organization district or local
intervenor, who provides information, reports, or records under
Section 564.001[(a) or (b)] to aid an impaired pharmacist or
pharmacy student is immune from civil liability if the person
provides the information in good faith.
SECTION 5. Section 565.052, Occupations Code, is amended to
read as follows:
Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION.
(a) In enforcing Section 565.001(a)(4) or (7), the board or an
authorized agent of the board on probable cause, as determined by
the board or agent, shall request a pharmacist, pharmacist
applicant, pharmacist-intern, or pharmacist-intern applicant to
submit to a mental or physical examination by a physician or other
health care professional designated by the board.
(b) If the pharmacist, pharmacist applicant,
pharmacist-intern, or pharmacist-intern applicant refuses to
submit to the examination, the board or the executive director of
the board shall issue an order requiring the pharmacist, pharmacist
applicant, pharmacist-intern, or pharmacist-intern applicant to
show cause why the pharmacist, pharmacist applicant,
pharmacist-intern, or pharmacist-intern applicant will not submit
to the examination and shall schedule a hearing before a panel of
three members of the board appointed by the president of the board
on the order not later than the 30th day after the date notice is
served on the pharmacist, pharmacist applicant, pharmacist-intern,
or pharmacist-intern applicant. The pharmacist, pharmacist
applicant, pharmacist-intern, or pharmacist-intern applicant shall
be notified by either personal service or certified mail with
return receipt requested.
(c) At the hearing, the pharmacist, pharmacist applicant,
pharmacist-intern, or pharmacist-intern applicant and an attorney
are entitled to present testimony or other evidence to show why the
pharmacist, pharmacist applicant, pharmacist-intern, or
pharmacist-intern applicant [pharmacist intern-applicant] should
not be required to submit to the examination. The pharmacist,
pharmacist applicant, pharmacist-intern, or pharmacist-intern
applicant has the burden of proof to show why the pharmacist,
pharmacist applicant, pharmacist-intern, or pharmacist-intern
applicant should not be required to submit to the examination.
(d) After the hearing, the panel [board] shall by order
require the pharmacist, pharmacist applicant, pharmacist-intern,
or pharmacist-intern applicant to submit to the examination not
later than the 60th day after the date of the order or withdraw the
request for examination, as applicable.
SECTION 6. 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 [to]:
(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 [involved with the board in a
disciplinary action against the license holder];
(3) to [(2)] an entity in another jurisdiction that
licenses or disciplines pharmacists or pharmacies;
(4) to [(3)] a pharmaceutical or pharmacy peer review
committee as described under Chapter 564;
(5) to [(4)] a law enforcement agency; [or]
(6) to [(5)] a person engaged in bona fide research, if
all information identifying a specific individual has been deleted;
or
(7) under a court order.
SECTION 7. The heading to Section 565.059, Occupations
Code, is amended to read as follows:
Sec. 565.059. TEMPORARY SUSPENSION OR RESTRICTION OF
LICENSE [OR REGISTRATION].
SECTION 8. Subsections (a), (b), and (c), Section 565.059,
Occupations Code, are amended to read as follows:
(a) The president of the board shall appoint a three-member
disciplinary panel consisting of board members to determine whether
a license [or registration] under this subtitle should be
temporarily suspended or restricted. If a majority of the
disciplinary panel determines from evidence or information
presented to the panel that the holder of a license [or
registration] by continuation in the practice of pharmacy or in the
operation of a pharmacy would constitute a continuing threat to the
public welfare, the panel shall temporarily suspend or restrict the
license as provided by Subsection (b) [or registration].
(b) The disciplinary panel may temporarily suspend or
restrict the license:
(1) after a hearing conducted by the panel after the
10th day after the date notice of the hearing is provided to the
license holder; or
(2) [or registration] without notice or hearing if, at
the time the suspension or restriction is ordered, a hearing before
the panel [on whether disciplinary proceedings under this chapter
should be initiated against the holder of a license or
registration] is scheduled to be held not later than the 14th day
after the date of the temporary suspension or restriction to
determine whether the suspension or restriction should be
continued.
(c) Not later than the 90th day after the date of the
temporary suspension or restriction, the board shall initiate a
disciplinary action against the license holder, and a contested
case [A second] hearing [on the suspended license or registration]
shall be held by the State Office of Administrative Hearings [not
later than the 60th day after the date of the suspension]. If the
State Office of Administrative Hearings does not hold the [second]
hearing in the time required by this subsection, the suspended or
restricted license [or registration] is automatically reinstated.
SECTION 9. Subsections (b), (c), (e), and (f), Section
568.0036, Occupations Code, are amended to read as follows:
(b) In enforcing Section 568.003(a)(5) or (7), the board or
an authorized agent of the board[,] on probable cause, as
determined by the board or agent, may request a person subject to
this section to submit to a mental or physical examination by a
physician or other health care professional designated by the
board.
(c) If the person refuses to submit to the examination, the
board or the executive director of the board shall:
(1) issue an order requiring the person to show cause
why the person will not submit to the examination; and
(2) schedule a hearing before a panel of three members
of the board appointed by the president of the board on the order
not later than the 30th day after the date notice of the order is
served on the person under Subsection (d).
(e) At the hearing, the person and the person's counsel may
present testimony or other evidence to show why the person should
not be required to submit to the examination. The person has the
burden of proof to show why the person should not be required to
submit to the examination.
(f) After the hearing, as applicable, the panel [board]
shall, by order:
(1) require the person to submit to the examination
not later than the 60th day after the date of the order; or
(2) withdraw the request for examination.
SECTION 10. Chapter 568, Occupations Code, is amended by
adding Section 568.0037 to read as follows:
Sec. 568.0037. TEMPORARY SUSPENSION OR RESTRICTION OF
REGISTRATION. (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 would
constitute a continuing threat to the public welfare, the panel
shall temporarily suspend or restrict the registration as provided
by Subsection (b).
(b) A disciplinary panel may temporarily suspend or
restrict the registration:
(1) after a hearing conducted by the panel after the
10th day after the date notice of the hearing is provided to the
registrant; or
(2) without notice or hearing if, at the time the
suspension or restriction is ordered, a hearing before the panel is
scheduled to be held not later than the 14th day after the date of
the temporary suspension or restriction to determine whether the
suspension or restriction should be continued.
(c) Not later than the 90th day after the date of the
temporary suspension or restriction, the board shall initiate a
disciplinary action under this chapter, and a contested
case hearing shall be held by the State Office of Administrative
Hearings. If the State Office of Administrative Hearings does not
hold the hearing in the time required by this subsection, the
suspended or restricted registration is automatically reinstated.
(d) Notwithstanding Chapter 551, Government Code, the
disciplinary panel may hold a meeting by telephone conference call
if immediate action is required and convening the panel at one
location is inconvenient for any member of the disciplinary panel.
SECTION 11. The changes in law made by this Act relating to
the Texas State Board of Pharmacy's disciplinary authority apply
only to conduct that occurs on or after the effective date of this
Act. Conduct that occurs before the effective date of this Act is
governed by the law in effect on the date the conduct occurs, and
the former law is continued in effect for that purpose.
SECTION 12. 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, 2011.
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