86R32795 JSC-D
By: Hinojosa S.B. No. 2316
(Thompson of Harris)
Substitute the following for S.B. No. 2316: No.
A BILL TO BE ENTITLED
AN ACT
relating to controlled substance prescriptions under the Texas
Controlled Substances Act; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.003(a), Health and Safety Code, is
amended to read as follows:
(a) The director may adopt rules to administer and enforce
this chapter, other than Sections 481.073, 481.074, 481.075,
481.076, 481.0761, 481.0762, 481.0763, 481.0764, 481.0765,
481.07655, [and] 481.0766, 481.0767, 481.0768, and 481.0769. The
board may adopt rules to administer Sections 481.073, 481.074,
481.075, 481.076, 481.0761, 481.0762, 481.0763, 481.0764,
481.0765, 481.07655, [and] 481.0766, 481.0767, 481.0768, and
481.0769.
SECTION 2. Section 481.076, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (a-6) to
read as follows:
(a) The board may not permit any person to have access to
information submitted to the board under Section 481.074(q) or
481.075 except:
(1) the board, the Texas Medical Board, the Texas
Department of Licensing and Regulation, with respect to the
regulation of podiatrists [State Board of Podiatric Medical
Examiners], the State Board of Dental Examiners, the State Board of
Veterinary Medical Examiners, the Texas Board of Nursing, or the
Texas Optometry Board for the purpose of:
(A) investigating a specific license holder; or
(B) monitoring for potentially harmful
prescribing or dispensing patterns or practices under Section
481.0762;
(2) an authorized officer or member of the department
or authorized employee of the board engaged in the administration,
investigation, or enforcement of this chapter or another law
governing illicit drugs in this state or another state;
(3) the department on behalf of a law enforcement or
prosecutorial official engaged in the administration,
investigation, or enforcement of this chapter or another law
governing illicit drugs in this state or another state;
(4) a medical examiner conducting an investigation;
(5) provided that accessing the information is
authorized under the Health Insurance Portability and
Accountability Act of 1996 (Pub. L. No. 104-191) and regulations
adopted under that Act:
(A) a pharmacist or a pharmacy technician, as
defined by Section 551.003, Occupations Code, acting at the
direction of a pharmacist; or
(B) a practitioner who:
(i) is a physician, dentist, veterinarian,
podiatrist, optometrist, or advanced practice nurse or is a
physician assistant described by Section 481.002(39)(D) or an
employee or other agent of a practitioner acting at the direction of
a practitioner; and
(ii) is inquiring about a recent Schedule
II, III, IV, or V prescription history of a particular patient of
the practitioner;
(6) a pharmacist or practitioner who is inquiring
about the person's own dispensing or prescribing activity; [or]
(7) one or more states or an association of states with
which the board has an interoperability agreement, as provided by
Subsection (j); or
(8) the patient or patient's authorized representative
inquiring about the patient's prescription record, including
persons who have accessed that record.
(a-6) A patient or the patient's authorized representative
is entitled to a copy of the patient's prescription record as
provided by Subsection (a)(8), including a list of persons who have
accessed that record, if the patient or representative submits to
the board a completed patient data request form and any supporting
documentation required by the board. The board may charge a
reasonable fee for providing the copy. The board shall adopt rules
to implement this subsection, including rules prescribing the
patient data request form, listing the documentation required for
receiving a copy of the prescription record, and setting the fee.
SECTION 3. Subchapter C, Chapter 481, Health and Safety
Code, is amended by adding Sections 481.07655, 481.0767, 481.0768,
and 481.0769 to read as follows:
Sec. 481.07655. LIMITATION OF LIABILITY. (a) A prescriber
or dispenser is not liable in a civil action for damages arising
from the failure to access prescription drug information as
required or authorized by Section 481.0764 or failure to submit the
information to the board as required under Section 481.074(q) or
481.075, unless the failure constitutes gross negligence or wilful
misconduct and the prescriber or dispenser would be liable to the
claimant under other law.
(b) This section does not establish a standard of care.
Sec. 481.0767. ADVISORY COMMITTEE. (a) The board shall
establish an advisory committee to make recommendations regarding
information submitted to the board and access to that information
under Sections 481.074, 481.075, 481.076, and 481.0761.
(b) The board shall appoint the following members to the
advisory committee:
(1) a physician licensed in this state who practices
in pain management;
(2) a physician licensed in this state who practices
in family medicine;
(3) a physician licensed in this state who performs
surgery;
(4) a physician licensed in this state who practices
in emergency medicine;
(5) a dentist licensed in this state who performs oral
surgery;
(6) a podiatrist licensed in this state;
(7) a physician assistant to whom a physician has
delegated the authority to prescribe or order a drug;
(8) an advanced practice registered nurse to whom a
physician has delegated the authority to prescribe or order a drug;
(9) a pharmacist working at a chain pharmacy;
(10) a pharmacist working at an independent pharmacy;
and
(11) a representative of a company whose primary line
of business is electronic medical records.
(c) Members of the advisory committee serve three-year
terms. Each member shall serve until the member's replacement has
been appointed.
(d) The advisory committee shall annually elect a presiding
officer from its members.
(e) The advisory committee shall meet at least two times a
year and at the call of the presiding officer or the board.
(f) A member of the advisory committee serves without
compensation but may be reimbursed by the board for actual expenses
incurred in performing the duties of the advisory committee.
(g) The advisory committee is abolished and this section
expires on September 1, 2023.
Sec. 481.0768. CRIMINAL OFFENSES RELATED TO PRESCRIPTION
INFORMATION. (a) A person authorized to receive information under
Section 481.076(a) commits an offense if the person discloses or
uses the information in a manner not authorized by this subchapter
or other law.
(b) A person requesting information under Section
481.076(a-6) commits an offense if the person makes a material
misrepresentation or fails to disclose a material fact in the
request for information under that subsection.
(c) An offense under Subsection (a) is a Class A
misdemeanor.
(d) An offense under Subsection (b) is a Class C
misdemeanor.
Sec. 481.0769. ADMINISTRATIVE PENALTY: DISCLOSURE OR USE
OF INFORMATION. (a) A regulatory agency that issues a license,
certification, or registration to a prescriber or dispenser shall
periodically update the administrative penalties, or any
applicable disciplinary guidelines concerning the penalties,
assessed by that agency for conduct constituting an offense under
Section 481.0768(a).
(b) The agency shall set the penalties in an amount
sufficient to deter the conduct.
SECTION 4. Section 554.051, Occupations Code, is amended by
amending Subsection (a-1) and adding Subsection (a-2) to read as
follows:
(a-1) The board may adopt rules to administer Sections
481.073, 481.074, 481.075, 481.076, 481.0761, 481.0762, 481.0763,
481.0764, 481.0765, 481.07655, [and] 481.0766, 481.0768, and
481.0769, Health and Safety Code.
(a-2) The board may adopt rules to administer Section
481.0767, Health and Safety Code. This subsection expires
September 1, 2023.
SECTION 5. Section 565.003, Occupations Code, is amended to
read as follows:
Sec. 565.003. ADDITIONAL GROUNDS FOR DISCIPLINE REGARDING
APPLICANT FOR OR HOLDER OF NONRESIDENT PHARMACY LICENSE. Unless
compliance would violate the pharmacy or drug statutes or rules in
the state in which the pharmacy is located, the board may discipline
an applicant for or the holder of a nonresident pharmacy license if
the board finds that the applicant or license holder has failed to
comply with:
(1) Section 481.073, 481.074, [or] 481.075, 481.076,
481.0761, 481.0762, 481.0763, 481.0764, 481.0765, 481.07655,
481.0766, 481.0768, or 481.0769, Health and Safety Code;
(2) Texas substitution requirements regarding:
(A) the practitioner's directions concerning
generic substitution;
(B) the patient's right to refuse generic
substitution; or
(C) notification to the patient of the patient's
right to refuse substitution;
(3) any board rule relating to providing drug
information to the patient or the patient's agent in written form or
by telephone; or
(4) any board rule adopted under Section 554.051(a)
and determined by the board to be applicable under Section
554.051(b).
SECTION 6. The State Auditor's Office, in accordance with
Chapter 321, Government Code, shall audit the Texas State Board of
Pharmacy with respect to the information submitted to the board and
access to that information under Sections 481.074, 481.075,
481.076, and 481.0761, Health and Safety Code. The audit must
consider the economy and efficiency and the effectiveness of the
systems for submission of and access to the information, including
vendor performance and contract management. The audit must be
completed not later than December 1, 2024.
SECTION 7. Not later than September 1, 2020, each
regulatory agency that issues a license, certification, or
registration to a prescriber or dispenser shall evaluate and update
any administrative penalties and guidelines as provided by Section
481.0769, Health and Safety Code, as added by this Act.
SECTION 8. Notwithstanding Section 24, Chapter 485 (H.B.
2561), Acts of the 85th Legislature, Regular Session, 2017, Section
481.0764(a), Health and Safety Code, as added by that Act, applies
only to:
(1) a prescriber, other than a veterinarian, who
issues a prescription for a controlled substance on or after March
1, 2020; or
(2) a person authorized by law to dispense a
controlled substance, other than a veterinarian, who dispenses a
controlled substance on or after March 1, 2020.
SECTION 9. To the extent of any conflict, this Act prevails
over another Act of the 86th Legislature, Regular Session, 2019,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 10. This Act takes effect September 1, 2019.