Texas 2011 - 82nd Regular

Texas Senate Bill SB1438 Compare Versions

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1	1	By: Van de Putte S.B. No. 1438
2	2	(Hopson)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the program for impaired pharmacists and disciplinary
8	8	proceedings conducted by the Texas State Board of Pharmacy.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subsections (a) and (b), Section 564.001,
11	11	Occupations Code, are amended to read as follows:
12	12	(a) An individual or entity [A person], including a
13	13	pharmaceutical peer review committee, who has knowledge relating to
14	14	an action or omission of a pharmacist in this state or a pharmacy
15	15	student who is enrolled in the professional sequence of an
16	16	accredited pharmacy degree program approved by the board that might
17	17	provide grounds for disciplinary action under Section
18	18	565.001(a)(4) or (7) may report relevant facts to the board.
19	19	(b) A committee of a professional society composed
20	20	primarily of pharmacists, the staff of the committee, or a district
21	21	or local intervenor participating in a program established to aid
22	22	pharmacists or [eligible] pharmacy students impaired by chemical
23	23	abuse or mental or physical illness may report in writing to the
24	24	board the name of an impaired pharmacist or pharmacy student and the
25	25	relevant information relating to the impairment.
26	26	SECTION 2. Section 564.002, Occupations Code, is amended to
27	27	read as follows:
28	28	Sec. 564.002. CONFIDENTIALITY. (a) All [The] records and
29	29	proceedings of the board, an authorized agent of the board, or a
30	30	pharmaceutical organization committee relating to the
31	31	administration of this chapter [described under Section 564.001(a)
32	32	or (b), in connection with a report under Section 564.001(a) or
33	33	(b),] are confidential and are not considered public information
34	34	for purposes of Chapter 552, Government Code. Records considered
35	35	confidential under this section include:
36	36	(1) information relating to a report made under
37	37	Section 564.001, including the identity of the individual or entity
38	38	making the report;
39	39	(2) the identity of an impaired pharmacist or pharmacy
40	40	student participating in a program administered under this chapter,
41	41	except as provided by Section 564.003;
42	42	(3) a report, interview, statement, memorandum,
43	43	evaluation, communication, or other information possessed by the
44	44	board, an authorized agent of the board, or a pharmaceutical
45	45	organization committee, related to a potentially impaired
46	46	pharmacist or pharmacy student;
47	47	(4) a policy or procedure of an entity that contracts
48	48	with the board relating to personnel selection; and
49	49	(5) a record relating to the operation of the board, an
50	50	authorized agent of the board, or a pharmaceutical organization
51	51	committee, as the record relates to a potentially impaired
52	52	pharmacist or pharmacy student.
53	53	(b) A record or proceeding described by this section is not
54	54	subject to disclosure, subpoena, or discovery, except to a member
55	55	of the board or an authorized agent of the board involved in the
56	56	discipline of an applicant or license holder.
57	57	SECTION 3. Section 564.003, Occupations Code, is amended by
58	58	amending Subsection (a) and adding Subsections (a-1) and (a-2) to
59	59	read as follows:
60	60	(a) The board may disclose information confidential under
61	61	Section 564.002 only:
62	62	(1) during a proceeding conducted by [in a
63	63	disciplinary hearing before] the State Office of Administrative
64	64	Hearings, the board, or a panel of the board, or in a subsequent
65	65	trial or appeal of a board action or order;
66	66	(2) to a pharmacist licensing or disciplinary
67	67	authority of another jurisdiction;
68	68	(3) under a court order; [or]
69	69	(4) to a person providing a service to the board,
70	70	including an expert witness, investigator, or employee of an entity
71	71	that contracts with the board, related to a disciplinary proceeding
72	72	against an applicant or license holder, if the information is
73	73	necessary for preparation for, or a presentation in, the
74	74	proceeding; or
75	75	(5) as provided by Subsection (b).
76	76	(a-1) Information that is disclosed under Subsection (a)
77	77	remains confidential and is not subject to discovery or subpoena in
78	78	a civil suit and may not be introduced as evidence in any action
79	79	other than an appeal of a board action.
80	80	(a-2) Information that is confidential under Section
81	81	564.002 and that is admitted under seal in a proceeding conducted by
82	82	the State Office of Administrative Hearings is confidential
83	83	information for the purpose of a subsequent trial or appeal.
84	84	SECTION 4. Subsection (a), Section 564.004, Occupations
85	85	Code, is amended to read as follows:
86	86	(a) Any person, including a board employee or member, peer
87	87	review committee member, pharmaceutical organization committee
88	88	member, or pharmaceutical organization district or local
89	89	intervenor, who provides information, reports, or records under
90	90	Section 564.001[(a) or (b)] to aid an impaired pharmacist or
91	91	pharmacy student is immune from civil liability if the person
92	92	provides the information in good faith.
93	93	SECTION 5. Section 565.052, Occupations Code, is amended to
94	94	read as follows:
95	95	Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION.
96	96	(a) In enforcing Section 565.001(a)(4) or (7), the board or an
97	97	authorized agent of the board on probable cause, as determined by
98	98	the board or agent, shall request a pharmacist, pharmacist
99	99	applicant, pharmacist-intern, or pharmacist-intern applicant to
100	100	submit to a mental or physical examination by a physician or other
101	101	health care professional designated by the board.
102	102	(b) If the pharmacist, pharmacist applicant,
103	103	pharmacist-intern, or pharmacist-intern applicant refuses to
104	104	submit to the examination, the board or the executive director of
105	105	the board shall issue an order requiring the pharmacist, pharmacist
106	106	applicant, pharmacist-intern, or pharmacist-intern applicant to
107	107	show cause why the pharmacist, pharmacist applicant,
108	108	pharmacist-intern, or pharmacist-intern applicant will not submit
109	109	to the examination and shall schedule a hearing before a panel of
110	110	three members of the board appointed by the president of the board
111	111	on the order not later than the 30th day after the date notice is
112	112	served on the pharmacist, pharmacist applicant, pharmacist-intern,
113	113	or pharmacist-intern applicant. The pharmacist, pharmacist
114	114	applicant, pharmacist-intern, or pharmacist-intern applicant shall
115	115	be notified by either personal service or certified mail with
116	116	return receipt requested.
117	117	(c) At the hearing, the pharmacist, pharmacist applicant,
118	118	pharmacist-intern, or pharmacist-intern applicant and an attorney
119	119	are entitled to present testimony or other evidence to show why the
120	120	pharmacist, pharmacist applicant, pharmacist-intern, or
121	121	pharmacist-intern applicant [pharmacist intern-applicant] should
122	122	not be required to submit to the examination. The pharmacist,
123	123	pharmacist applicant, pharmacist-intern, or pharmacist-intern
124	124	applicant has the burden of proof to show why the pharmacist,
125	125	pharmacist applicant, pharmacist-intern, or pharmacist-intern
126	126	applicant should not be required to submit to the examination.
127	127	(d) After the hearing, the panel [board] shall by order
128	128	require the pharmacist, pharmacist applicant, pharmacist-intern,
129	129	or pharmacist-intern applicant to submit to the examination not
130	130	later than the 60th day after the date of the order or withdraw the
131	131	request for examination, as applicable.
132	132	SECTION 6. Subsection (c), Section 565.055, Occupations
133	133	Code, is amended to read as follows:
134	134	(c) Notwithstanding Subsection (b), information or material
135	135	compiled by the board in connection with an investigation may be
136	136	disclosed [to]:
137	137	(1) during any proceeding conducted by the State
138	138	Office of Administrative Hearings, to the board, or a panel of the
139	139	board, or in a subsequent trial or appeal of a board action or
140	140	order;
141	141	(2) to a person providing a service to the board,
142	142	including an expert witness, investigator, or employee of an entity
143	143	that contracts with the board, related to a disciplinary proceeding
144	144	against an applicant or license holder, or a subsequent trial or
145	145	appeal, if the information is necessary for preparation for, or a
146	146	presentation in, the proceeding [involved with the board in a
147	147	disciplinary action against the license holder];
148	148	(3) to [(2)] an entity in another jurisdiction that
149	149	licenses or disciplines pharmacists or pharmacies;
150	150	(4) to [(3)] a pharmaceutical or pharmacy peer review
151	151	committee as described under Chapter 564;
152	152	(5) to [(4)] a law enforcement agency; [or]
153	153	(6) to [(5)] a person engaged in bona fide research, if
154	154	all information identifying a specific individual has been deleted;
155	155	or
156	156	(7) under a court order.
157	157	SECTION 7. The heading to Section 565.059, Occupations
158	158	Code, is amended to read as follows:
159	159	Sec. 565.059. TEMPORARY SUSPENSION OR RESTRICTION OF
160	160	LICENSE [OR REGISTRATION].
161	161	SECTION 8. Subsections (a), (b), and (c), Section 565.059,
162	162	Occupations Code, are amended to read as follows:
163	163	(a) The president of the board shall appoint a three-member
164	164	disciplinary panel consisting of board members to determine whether
165	165	a license [or registration] under this subtitle should be
166	166	temporarily suspended or restricted. If a majority of the
167	167	disciplinary panel determines from evidence or information
168	168	presented to the panel that the holder of a license [or
169	169	registration] by continuation in the practice of pharmacy or in the
170	170	operation of a pharmacy would constitute a continuing threat to the
171	171	public welfare, the panel shall temporarily suspend or restrict the
172	172	license as provided by Subsection (b) [or registration].
173	173	(b) The disciplinary panel may temporarily suspend or
174	174	restrict the license:
175	175	(1) after a hearing conducted by the panel after the
176	176	10th day after the date notice of the hearing is provided to the
177	177	license holder; or
178	178	(2) [or registration] without notice or hearing if, at
179	179	the time the suspension or restriction is ordered, a hearing before
180	180	the panel [on whether disciplinary proceedings under this chapter
181	181	should be initiated against the holder of a license or
182	182	registration] is scheduled to be held not later than the 14th day
183	183	after the date of the temporary suspension or restriction to
184	184	determine whether the suspension or restriction should be
185	185	continued.
186	186	(c) Not later than the 90th day after the date of the
187	187	temporary suspension or restriction, the board shall initiate a
188	188	disciplinary action against the license holder, and a contested
189	189	case [A second] hearing [on the suspended license or registration]
190	190	shall be held by the State Office of Administrative Hearings [not
191	191	later than the 60th day after the date of the suspension]. If the
192	192	State Office of Administrative Hearings does not hold the [second]
193	193	hearing in the time required by this subsection, the suspended or
194	194	restricted license [or registration] is automatically reinstated.
195	195	SECTION 9. Subsections (b), (c), (e), and (f), Section
196	196	568.0036, Occupations Code, are amended to read as follows:
197	197	(b) In enforcing Section 568.003(a)(5) or (7), the board or
198	198	an authorized agent of the board[,] on probable cause, as
199	199	determined by the board or agent, may request a person subject to
200	200	this section to submit to a mental or physical examination by a
201	201	physician or other health care professional designated by the
202	202	board.
203	203	(c) If the person refuses to submit to the examination, the
204	204	board or the executive director of the board shall:
205	205	(1) issue an order requiring the person to show cause
206	206	why the person will not submit to the examination; and
207	207	(2) schedule a hearing before a panel of three members
208	208	of the board appointed by the president of the board on the order
209	209	not later than the 30th day after the date notice of the order is
210	210	served on the person under Subsection (d).
211	211	(e) At the hearing, the person and the person's counsel may
212	212	present testimony or other evidence to show why the person should
213	213	not be required to submit to the examination. The person has the
214	214	burden of proof to show why the person should not be required to
215	215	submit to the examination.
216	216	(f) After the hearing, as applicable, the panel [board]
217	217	shall, by order:
218	218	(1) require the person to submit to the examination
219	219	not later than the 60th day after the date of the order; or
220	220	(2) withdraw the request for examination.
221	221	SECTION 10. Chapter 568, Occupations Code, is amended by
222	222	adding Section 568.0037 to read as follows:
223	223	Sec. 568.0037. TEMPORARY SUSPENSION OR RESTRICTION OF
224	224	REGISTRATION. (a) The president of the board shall appoint a
225	225	disciplinary panel consisting of three board members to determine
226	226	whether a registration under this chapter should be temporarily
227	227	suspended or restricted. If a majority of the panel determines from
228	228	evidence or information presented to the panel that the registrant
229	229	by continuation in practice as a pharmacy technician would
230	230	constitute a continuing threat to the public welfare, the panel
231	231	shall temporarily suspend or restrict the registration as provided
232	232	by Subsection (b).
233	233	(b) A disciplinary panel may temporarily suspend or
234	234	restrict the registration:
235	235	(1) after a hearing conducted by the panel after the
236	236	10th day after the date notice of the hearing is provided to the
237	237	registrant; or
238	238	(2) without notice or hearing if, at the time the
239	239	suspension or restriction is ordered, a hearing before the panel is
240	240	scheduled to be held not later than the 14th day after the date of
241	241	the temporary suspension or restriction to determine whether the
242	242	suspension or restriction should be continued.
243	243	(c) Not later than the 90th day after the date of the
244	244	temporary suspension or restriction, the board shall initiate a
245	245	disciplinary action under this chapter, and a contested
246	246	case hearing shall be held by the State Office of Administrative
247	247	Hearings. If the State Office of Administrative Hearings does not
248	248	hold the hearing in the time required by this subsection, the
249	249	suspended or restricted registration is automatically reinstated.
250	250	(d) Notwithstanding Chapter 551, Government Code, the
251	251	disciplinary panel may hold a meeting by telephone conference call
252	252	if immediate action is required and convening the panel at one
253	253	location is inconvenient for any member of the disciplinary panel.
254	254	SECTION 11. The changes in law made by this Act relating to
255	255	the Texas State Board of Pharmacy's disciplinary authority apply
256	256	only to conduct that occurs on or after the effective date of this
257	257	Act. Conduct that occurs before the effective date of this Act is
258	258	governed by the law in effect on the date the conduct occurs, and
259	259	the former law is continued in effect for that purpose.
260	260	SECTION 12. This Act takes effect immediately if it
261	261	receives a vote of two-thirds of all the members elected to each
262	262	house, as provided by Section 39, Article III, Texas Constitution.
263	263	If this Act does not receive the vote necessary for immediate
264	264	effect, this Act takes effect September 1, 2011.