83R4921 BEF-F
By: Schwertner S.B. No. 404
A BILL TO BE ENTITLED
AN ACT
relating to complaints filed with the Texas State Board of
Pharmacy; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 555.005, Occupations Code, is amended to
read as follows:
Sec. 555.005. RECORDS OF COMPLAINTS. For each complaint
received by the board, the board shall maintain information about
parties to the complaint, including the complainant's identity, the
subject matter of the complaint, a summary of the results of the
review or investigation of the complaint, and the [its] disposition
of the complaint.
SECTION 2. Section 555.007, Occupations Code, is amended by
adding Subsection (d) to read as follows:
(d) The board may not consider or act on a complaint
involving a violation alleged to have occurred more than seven
years before the date the complaint is received by the board.
SECTION 3. Section 565.051, Occupations Code, is amended to
read as follows:
Sec. 565.051. DISCIPLINE AUTHORIZED. On a determination
that a ground for discipline exists under Subchapter A, or that a
violation of this subtitle or a rule adopted under this subtitle has
been committed by a license holder or applicant for a license or
renewal of a license, the board may:
(1) suspend the person's license;
(2) revoke the person's license;
(3) restrict the person's license to prohibit the
person from performing certain acts or from practicing pharmacy or
operating a pharmacy in a particular manner for a term and under
conditions determined by the board;
(4) impose an administrative penalty under Chapter
566;
(5) refuse to issue or renew the person's license;
(6) place the offender's license on probation and
supervision by the board for a period determined by the board and
impose a requirement that the license holder:
(A) report regularly to the board on matters that
are the basis of the probation;
(B) limit practice to the areas prescribed by the
board;
(C) continue or review professional education
until the license holder attains a degree of skill satisfactory to
the board in each area that is the basis of the probation; or
(D) pay the board a probation fee to defray the
costs of monitoring the license holder during the period of
probation;
(7) reprimand the person;
(8) retire the person's license as provided by board
rule; [or]
(9) issue a remedial plan; or
(10) impose more than one of the sanctions listed in
this section [subsection].
SECTION 4. Section 565.056, Occupations Code, is amended by
amending Subsection (b) and adding Subsections (d) and (e) to read
as follows:
(b) A rule adopted under this section must:
(1) provide the complainant, if applicable and
permitted by law, and the license holder an opportunity to be heard;
[and]
(2) require the presence of an attorney to advise the
board or a board employee; and
(3) if an informal meeting will be held, require
notice of the time and place of the informal meeting to be given to
the license holder not later than the 45th day before the date the
informal meeting is held.
(d) The notice required by Subsection (b)(3) must be
accompanied by a written statement of the nature of the allegations
against the license holder and the information the board intends to
use at the informal meeting. If the board does not provide the
statement or information when the notice is provided, the license
holder may use that failure as grounds for rescheduling the
informal meeting. The license holder must provide to the board the
license holder's rebuttal not later than the 15th day before the
date of the meeting in order for that information to be considered
at the meeting.
(e) On request by a license holder under review, the board
shall make a recording of the informal meeting. The recording is a
part of the investigative file and may not be released to a third
party unless authorized under this subtitle. The board may charge
the license holder a fee to cover the cost of recording the meeting.
The board shall provide a copy of the recording to the license
holder on the license holder's request.
SECTION 5. Subchapter B, Chapter 565, Occupations Code, is
amended by adding Section 565.060 to read as follows:
Sec. 565.060. REMEDIAL PLAN. (a) The board may issue and
establish the terms of a remedial plan to resolve the investigation
of a complaint relating to this subtitle.
(b) A remedial plan may not contain a provision that:
(1) revokes, suspends, limits, or restricts a person's
license or other authorization to practice pharmacy; or
(2) assesses an administrative penalty against a
person.
(c) A remedial plan may not be imposed to resolve a
complaint:
(1) concerning:
(A) a death;
(B) a hospitalization; or
(C) the commission of a felony; or
(2) in which the appropriate resolution may involve a
restriction on the manner in which a license holder practices
pharmacy.
(d) The board may not issue a remedial plan to resolve a
complaint against a license holder if the license holder has
entered into a remedial plan with the board in the preceding 24
months for the resolution of a different complaint relating to this
subtitle.
(e) If a license holder complies with and successfully
completes the terms of a remedial plan, the board shall remove all
records of the remedial plan from the board's records on the second
anniversary of the date the license holder successfully completes
the remedial plan.
(f) The board may assess a fee against a license holder
participating in a remedial plan in an amount necessary to recover
the costs of administering the plan.
(g) The board shall adopt rules necessary to implement this
section.
SECTION 6. Section 565.061, Occupations Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) Except as provided by this section and Chapter 564, a
disciplinary action taken by the board [under Section 565.060 or]
on the basis of a ground for discipline under Subchapter A is
governed by Chapter 2001, Government Code, and the rules of
practice and procedure before the board.
(a-1) After receiving the administrative law judge's
findings of fact and conclusions of law, the board shall dispose of
the contested case by issuing a final order based on the
administrative law judge's findings of fact and conclusions of law.
(a-2) Notwithstanding Section 2001.058(e), Government
Code, the board may not change a finding of fact or conclusion of
law or vacate or modify an order of the administrative law judge.
The board may obtain judicial review of any finding of fact or
conclusion of law issued by the administrative law judge as
provided by Section 2001.058(f)(5), Government Code. For each
case, the board has the sole authority and discretion to determine
the appropriate action or sanction, and the administrative law
judge may not make any recommendation regarding the appropriate
action or sanction.
SECTION 7. (a) Sections 555.005 and 565.056, Occupations
Code, as amended by this Act, and Section 555.007(d), Occupations
Code, as added by this Act, apply only to the investigation of a
complaint filed on or after the effective date of this Act. The
investigation of a complaint filed before that date is governed by
the law in effect on the date the complaint was filed, and that law
is continued in effect for that purpose.
(b) The Texas State Board of Pharmacy shall adopt rules
under Section 565.060, Occupations Code, as added by this Act, not
later than January 1, 2014.
(c) Section 565.051, Occupations Code, as amended by this
Act, and Section 565.060, Occupations Code, as added by this Act,
apply only to a complaint under Subtitle J, Title 3, Occupations
Code, filed on or after the effective date of this Act. A complaint
under Subtitle J, Title 3, Occupations Code, filed before that date
is governed by the law in effect on the date the complaint was
filed, and that law is continued in effect for that purpose.
(d) Section 565.061, Occupations Code, as amended by this
Act, applies only to a contested case for which an administrative
law judge employed by the State Office of Administrative Hearings
issues written findings of fact and conclusions of law on or after
the effective date of this Act. A contested case for which an
administrative law judge employed by the State Office of
Administrative Hearings issues written findings of fact and
conclusions of law before the effective date of this Act is governed
by the law in effect on the date the findings of fact and
conclusions of law were issued, and the former law is continued in
effect for that purpose.
SECTION 8. This Act takes effect September 1, 2013.