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  S.B. No. 1438
 
 
 
 
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.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1438 passed the Senate on
  May 5, 2011, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1438 passed the House on
  May 23, 2011, by the following vote:  Yeas 142, Nays 0, one
  present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor