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From the 2005 Regular Session of the Texas Legislature

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	S.B. No. 410



AN ACT



relating to the continuation and functions
of the Texas State Board of Pharmacy and to certain
duties of pharmacists and pharmacies; providing administrative
penalties.


BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF TEXAS:


SECTION 1.  Section 551.005, Occupations
Code, is amended to read as follows:


Sec. 551.005.  APPLICATION OF SUNSET ACT.
 The Texas State Board of Pharmacy is subject to Chapter
325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the board
is abolished and this subtitle expires September 1,
2017 2005.


SECTION 2.  Subdivision (42), Section 551.003,
Occupations Code, is amended to read as follows:


(42)  "Texas trade association" means a
nonprofit, cooperative,
and voluntarily joined statewide association
of business or professional competitors in this state
designed to assist its members and its industry or
profession in dealing with mutual business or professional
problems and in promoting their common interest.


SECTION 3.  Section 552.004, Occupations
Code, is amended to read as follows:


Sec. 552.004.  MEMBERSHIP RESTRICTIONS.
 (a)  A person may not be a member of serve
on the board if the person is required to
register as a lobbyist under Chapter 305, Government
Code, because of the person's activities for compensation
on behalf of a profession related to the operation
of the board.


(b)  A person may not be a pharmacist
member of the board if may not be:


(1)  the person is a salaried
faculty member at a college of pharmacy; or


(2)  an officer, employee,
or paid consultant of a Texas trade association in
the field of health care; or


(2)  the person's spouse
is of an officer, manager
employee, or paid consultant of
a Texas trade association in the field of health care.


SECTION 4.  Section 552.006, Occupations
Code, is amended to read as follows:


Sec. 552.006.  BOARD MEMBER TRAINING. 
(a)  A person who is appointed to and qualifies
for office as a member of the board may not vote, deliberate,
or be counted as a member in attendance at a meeting
of the board until the person completes a training
program that complies with this section.


(b)  The training program must provide
the person with information regarding:


(1)  this subtitle and the programs,
functions, rules, and budget of the board;


(2)  the results of the most recent
formal audit of the board;


(3)  the requirements of laws relating
to open meetings, public information, administrative
procedure, and conflicts of interest; and


(4)  any applicable ethics policies
adopted by the board or the Texas Ethics Commission.


(c)  A person appointed to the board
is entitled to reimbursement, as provided by the General
Appropriations Act, for the travel expenses incurred
in attending the training program regardless of whether
the attendance at the program occurs before or after
the person qualifies for office Each board
member shall comply with the board member training
requirements established by any other state agency
with authority to establish the requirements for the
board.


SECTION 5.  Subsection (a), Section 552.007,
Occupations Code, is amended to read as follows:


(a)  The governor shall designate a
member of the board as the president of the board to
serve in that capacity at the pleasure of the governor.
 The board shall elect from its members for one-year
terms a president, vice president,
treasurer, and other officers the board considers appropriate
and necessary to conduct board business.


SECTION 6.  Subsection (b), Section 552.009,
Occupations Code, is amended to read as follows:


(b)  A member is entitled to reimbursement
for travel transportation
expenses as prescribed by the General Appropriations
Act.  A member may not receive reimbursement
for any other travel expenses, including expenses for
meals and lodging.


SECTION 7.  Section 553.005, Occupations
Code, is amended to read as follows:


Sec. 553.005.  EMPLOYEE RESTRICTIONS. 
(a)  A person may not be an employee of the board
employed in a "bona fide executive, administrative,
or professional capacity," as that phrase is used for
purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act
of 1938 (29 U.S.C. Section 201 et seq.), if:


(1)  the person is an officer, employee,
or paid consultant of a Texas trade association in
the field of health care; or


(2)  the person's spouse is an An
officer, manager employee,
or paid consultant of a Texas trade association in
the field of health care may not be an employee
of the board who is exempt from the state's position
classification plan or is compensated at or above the
amount prescribed by the General Appropriations Act
for step 1, salary group A17, of the position classification
salary schedule.


(b)  A person who is the spouse
of an officer, manager, or paid consultant of a Texas
trade association in the field of health care may not
be an employee of the board who is exempt from the
state's position classification plan or is compensated
at or above the amount prescribed by the General Appropriations
Act for step 1, salary group A17, of the position classification
salary schedule.


(c)  A person may not
act as general counsel to the board if the person is
required to register as a lobbyist under Chapter 305,
Government Code, because of the person's activities
for compensation on behalf of a profession related
to the operation of the board.


SECTION 8.  Section 554.001, Occupations
Code, is amended by adding Subsection (e) to read as
follows:


(e)  The board shall develop formal
policies outlining the structure, role, and responsibilities
of each committee established under Subsection (b)(2)
that contains board members.  The board may adopt rules
to implement this subsection.


SECTION 9.  Section 554.007, Occupations
Code, is amended to read as follows:


Sec. 554.007.  FUNDS; STATE PHARMACY
ACCOUNT.  (a)  The board shall deposit revenue,
other than an administrative penalty, collected
under this subtitle to the credit of the state
pharmacy account in the general revenue fund.


(b)  The board may receive and spend money
from a party, other than the state, in addition to
money collected under Subsection (a), in accordance
with state law.


(c)  The board shall pay the expense
of administering this subtitle out of the state pharmacy
account.


SECTION 10.  Section 555.001, Occupations
Code, is amended by adding Subsections (c) and (d)
to read as follows:


(c)  The board shall provide on its
website a list of all Internet pharmacies licensed
by the board and shall provide information about each
pharmacy, including the pharmacy's name, license number,
and state of physical location.  In this subsection,
an Internet pharmacy is a pharmacy physically located
in this state or another state that:


(1)  dispenses a prescription drug or
device under a prescription drug order in response
to a request received by way of the Internet to dispense
the drug or device; and


(2)  delivers the drug or device to
a patient in this state by United States mail, common
carrier, or delivery service.


(d)  Information regarding the home
address or home telephone number of a person licensed
or registered under this subtitle, including a pharmacy
owner, is confidential and not subject to disclosure
under Chapter 552, Government Code, but each person
licensed or registered must provide the board with
a business address or address of record that is subject
to disclosure under Chapter 552, Government Code, and
that may be posted on the board's Internet site or
in the board's licensure verification database.


SECTION 11.  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,
the subject matter of the complaint, a summary of the
results of the review or investigation of the complaint,
and its disposition The board shall keep
an information file about each complaint filed with
the board.  The information file must be kept current
and contain a record for each complaint of:


(1)  each person contacted in
relation to the complaint;


(2)  a summary of the results
of the review or investigation of the complaint;


(3)  an explanation of the reason
the complaint was closed without action if the board
did not take action;


(4)  the schedule for disposing
of the complaint prepared as required by Section 555.007(b)
and a notation of any change in the schedule; and


(5)  other relevant information.


SECTION 12.  Section 555.007, Occupations
Code, is amended by amending Subsection (a) and adding
Subsection (c) to read as follows:


(a)  The board shall adopt policies and
procedures concerning the investigation of a complaint
filed with the board.  The policies and procedures
must:


(1)  determine the seriousness of the complaint;


(2)  ensure that a complaint is not closed
without appropriate consideration;


(3)  ensure that a letter is sent to the
person who filed the complaint explaining the action
taken on the complaint;


(4)  ensure that the person who filed the
complaint has an opportunity to explain the allegations
made in the complaint; and


(5)  prescribe guidelines concerning the
types of complaints that require the use of a private
investigator and the procedures for the board to obtain
the services of a private investigator; and


(6)  allow appropriate employees of
the board to dismiss a complaint if an investigation
shows that:


(A)  no violation occurred; or


(B)  the subject of the complaint is
outside the board's jurisdiction.


(c)  At each public meeting of the board,
the executive director shall report to the board each
complaint dismissed under Subsection (a)(6) since the
board's last public meeting.


SECTION 13.  Subsection (a), Section 558.057,
Occupations Code, is amended to read as follows:


(a)  In this section, "preceptor" means
a pharmacist licensed in this state to practice pharmacy
or another health care professional who meets
the preceptor requirements specified by rule and who
is recognized certified by
the board to supervise and be responsible for the activities
and functions of a pharmacist-intern in an internship
program.


SECTION 14.  Subchapter B, Chapter 558, Occupations
Code, is amended by adding Section 558.058 to read
as follows:


Sec. 558.058.  ACCESSIBILITY OF EXAMINATION.
 The board by rule shall ensure that an examination
under this subchapter is administered to applicants
with disabilities in compliance with the Americans
with Disabilities Act of 1990 (42 U.S.C. Section 12101
et seq.).


SECTION 15.  Subchapter B, Chapter 558, Occupations
Code, is amended by adding Section 558.059 to read
as follows:


Sec. 558.059.  EXAMINATION FEE REFUND.
 (a)  The board may retain all or part of an examination
fee paid by an applicant who is unable to take the
examination.


(b)  The board shall adopt policies
allowing the board to refund the examination fee paid
by an applicant who:


(1)  provides advance notice of the
applicant's inability to take the examination; or


(2)  is unable to take the examination
because of an emergency.


(c)  The board's policy must establish
the required notification period and the emergencies
that warrant a refund.


(d)  The board shall make efforts to
ensure that the policy does not conflict with the policy
of a national testing body involved in administering
the examination.


SECTION 16.  Section 558.101, Occupations
Code, is amended to read as follows:


Sec. 558.101.  QUALIFICATIONS FOR LICENSE
BY RECIPROCITY.  (a)  To qualify for a license to practice
pharmacy, an applicant for licensing by reciprocity
must:


(1)  submit to the board:


(A)  a reciprocity fee set by the board;
and


(B)  a completed application in the form
prescribed by the board, given under oath;


(2)  be of good moral character;


(3)  have graduated and received a professional
practice degree, as defined by board rule, from an
accredited pharmacy degree program approved by the
board;


(4)  have possessed, at the time
of initial licensing as a pharmacist, other qualifications
necessary to have been eligible for licensing at that
time in this state;


(5)  have presented
to the board:


(A)  proof of current or initial
licensing by examination; and


(B)  proof that the current license
and any other license granted to the applicant by another
state has not been restricted, suspended, revoked,
or surrendered for any reason; and


(5) (6)  pass
the Texas Pharmacy Jurisprudence examination.


(b)  An applicant is not eligible for licensing
by reciprocity unless the state in which the applicant
is currently or was initially licensed as a
pharmacist grants reciprocal licensing to pharmacists
licensed by examination in this state, under like circumstances
and conditions.


SECTION 17.  Subsections (b), (c), and (d),
Section 559.003, Occupations Code, are amended to read
as follows:


(b)  A person whose license has been expired
for 90 days or less may renew the expired license by
paying to the board the required renewal fee
and a renewal fee that is equal to
one and one-half times the normally required
renewal of the examination fee
for the license.


(c)  A person whose license has been expired
for more than 90 days but less than one year may renew
the expired license by paying to the board all
unpaid renewal fees and a renewal
fee that is equal to two times the normally
required renewal examination
fee for the license.


(d)  A person whose If
a person's license has been expired for one
year or more, the person's license is considered
to have been canceled and the person may
not renew the license.  The person may obtain a
new license by complying with the requirements and
procedures for obtaining an original license, including
the examination requirement unless the
license is the subject of a pending investigation or
disciplinary action.


SECTION 18.  Section 560.052, Occupations
Code, is amended by amending Subsection (c) and adding
Subsection (f) to read as follows:


(c)  To qualify for a Class E pharmacy
license, an applicant, in addition to satisfying the
other requirements of this chapter, must provide to
the board:


(1)  evidence that the applicant holds
a pharmacy license, registration, or permit in good
standing issued by the state in which the pharmacy
is located;


(2)  the name of the owner and pharmacist-in-charge
of the pharmacy for service of process;


(3)  evidence of the applicant's ability
to provide to the board a record of a prescription
drug order dispensed by the applicant to a resident
of this state not later than 72 hours after the time
the board requests the record; and


(4)  an affidavit by the pharmacist-in-charge
that states that the pharmacist has read and understands
the laws and rules relating to a Class E pharmacy;


(5)  proof of creditworthiness; and


(6)  an inspection report issued:


(A)  not more than two years before
the date the license application is received; and


(B)  by the pharmacy licensing board
in the state of the pharmacy's physical location, except
as provided by Subsection (f).


(f)  A Class E pharmacy may submit an
inspection report issued by an entity other than the
pharmacy licensing board of the state in which the
pharmacy is physically located if:


(1)  the state's licensing board does
not conduct inspections;


(2)  the inspection is substantively
equivalent to an inspection conducted by the board,
as determined by board rule; and


(3)  the inspecting entity meets specifications
adopted by the board for inspecting entities.


SECTION 19.  Section 561.003, Occupations
Code, is amended by amending Subsection (a) and adding
Subsections (c), (d), and (e) to read as follows:


(a)  The board by rule shall establish:


(1)  procedures to be followed for renewal
of a pharmacy license;


(2)  the fees to be paid for renewal of
a pharmacy license; and


(3)  penalties for late renewal
of a pharmacy license; and


(4)  the standards in
each classification that each pharmacy and the pharmacy's
employees involved in the practice of pharmacy must
meet to qualify for relicensing as a pharmacy.


(c)  A pharmacy whose license has been
expired for 90 days or less may renew the expired license
by paying to the board a renewal fee that is equal
to one and one-half times the normally required renewal
fee for the license.


(d)  A pharmacy whose license has been
expired for more than 90 days but less than one year
may renew the expired license by paying to the board
a renewal fee that is equal to two times the normally
required renewal fee for the license.


(e)  If a pharmacy's license has been
expired for one year or more, the pharmacy may not
renew the license.  The pharmacy may obtain a new license
by complying with the requirements and procedures for
obtaining an original license.


SECTION 20.  Chapter 561, Occupations Code,
is amended by adding Section 561.0031 to read as follows:


Sec. 561.0031.  ADDITIONAL RENEWAL REQUIREMENT
FOR CLASS E PHARMACY.  (a)  In addition to the renewal
requirements under Section 561.003, the board shall
require that a Class E pharmacy have on file with the
board an inspection report issued:


(1)  not more than three years before
the date the renewal application is received; and


(2)  by the pharmacy licensing board
in the state of the pharmacy's physical location, except
as provided by Subsection (b).


(b)  A Class E pharmacy may have on
file with the board an inspection report issued by
an entity other than the pharmacy licensing board of
the state in which the pharmacy is physically located
if the requirements of Section 560.052(f) are met.


SECTION 21.  Subchapter B, Chapter 562, Occupations
Code, is amended by adding Section 562.056 to read
as follows:


Sec. 562.056.  PRACTITIONER-PATIENT
RELATIONSHIP REQUIRED.  (a)  Before dispensing a prescription,
a pharmacist shall determine, in the exercise of sound
professional judgment, that the  a prescription drug
if the pharmacist knows or should know that the prescription
was issued on the basis of an Internet-based or telephonic
consultation without a valid practitioner-patient relationship.


(b)  Subsection (a) does not prohibit
a pharmacist from dispensing a prescription when a
valid practitioner-patient relationship is not present
in an emergency.


SECTION 22.  Subchapter C, Chapter 562, Occupations
Code, is amended by adding Section 562.111 to read
as follows:


Sec. 562.111.  PRACTITIONER-PATIENT
RELATIONSHIP REQUIRED.  (a)  A pharmacy shall ensure
that its agents and employees, before dispensing a
prescription, determine in the exercise of sound professional
judgment that the prescription is a valid prescription.
 A pharmacy may not dispense a prescription drug if
an agent or employee of the pharmacy knows or should
know that the prescription was issued on the basis
of an Internet-based or telephonic consultation without
a valid practitioner-patient relationship.


(b)  Subsection (a) does not prohibit
a pharmacy from dispensing a prescription when a valid
practitioner-patient relationship is not present in
an emergency.


SECTION 23.  Section 562.1045, Occupations
Code, is amended by adding Subsections (c) and (d)
to read as follows:


(c)  A pharmacy subject to this section
shall post:


(1)  on its initial home page general
information on how to file a complaint about the pharmacy
with the board; and


(2)  specific information on how to
file a complaint with the board not more than two links
away from its initial home page.


(d)  Information under Subsection (c)
must include the board's telephone number, mailing
address, and Internet website address.


SECTION 24.  Subsection (c), Section 564.051,
Occupations Code, is amended to read as follows:


(c)  Funds and surcharges collected under
this section shall be deposited in the general revenue
fund account created under Section 554.007
and may only be used by the board to administer
the program authorized by this section, including providing
for initial evaluation and referral of an impaired
pharmacist or pharmacy student by a qualified health
professional and paying the administrative costs incurred
by the board in connection with that funding.  The
money may not be used for costs incurred for treatment
or rehabilitation after initial evaluation and referral.


SECTION 25.  Subsection (a), Section 565.001,
Occupations Code, is amended to read as follows:


(a)  The board may discipline an applicant
for or the holder of a current or expired license
to practice pharmacy if the board finds that the applicant
or license holder has:


(1)  violated this subtitle or a board
rule adopted under this subtitle;


(2)  engaged in unprofessional conduct
as defined by board rule;


(3)  engaged in gross immorality as defined
by board rule;


(4)  developed an incapacity that prevents
the applicant or license holder from practicing pharmacy
with reasonable skill, competence, and safety to the
public;


(5)  engaged in fraud, deceit, or misrepresentation,
as defined by board rule, in practicing pharmacy or
in seeking a license to practice pharmacy;


(6)  been convicted of or placed on
deferred adjudication community supervision or deferred
disposition or the applicable federal equivalent for:


(A)  a misdemeanor:


(i)  involving moral turpitude;
or


(ii)  under Chapter 481 or 483, Health
and Safety Code, or the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
or


(B)  a felony;


(7)  used alcohol or drugs in an intemperate
manner that, in the board's opinion, could endanger
a patient's life;


(8)  failed to maintain records required
by this subtitle or failed to maintain complete and
accurate records of purchases or disposals of drugs
listed in Chapter 481 or 483, Health and Safety Code,
or the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (21 U.S.C. Section 801 et seq.);


(9)  violated any provision of:


(A)  Chapter 481 or 483, Health and Safety
Code, or the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. Section 801 et seq.),
or rules relating to one of those laws; or


(B)  Section 485.031, 485.032, 485.033,
or 485.034, Health and Safety Code;


(10)  aided or abetted an unlicensed person
in the practice of pharmacy if the pharmacist knew
or reasonably should have known that the person was
unlicensed at the time;


(11)  refused entry into a pharmacy for
an inspection authorized by this subtitle if the pharmacist
received notification from which the pharmacist knew
or reasonably should have known that the attempted
inspection was authorized;


(12)  violated any pharmacy or drug statute
or rule of this state, another state, or the United
States;


(13)  been negligent in the practice of
pharmacy;


(14)  failed to submit to an examination
after hearing and being ordered to do so by the board
under Section 565.052;


(15)  dispensed a prescription drug while
acting outside the usual course and scope of professional
practice; or


(16)  been disciplined by the regulatory
board of another state had a license to
practice pharmacy issued by another state canceled,
revoked, surrendered, or suspended for conduct
substantially equivalent to conduct described under
this subsection;


(17)  violated a disciplinary order,
including a confidential order or contract under the
program to aid impaired pharmacists and pharmacy students
under Chapter 564;


(18)  failed to adequately supervise
a task delegated to a pharmacy technician;


(19)  inappropriately delegated a task
delegated to a pharmacy technician; or


(20)  been responsible for a drug audit
shortage.


SECTION 26.  Section 565.002, Occupations
Code, is amended to read as follows:


Sec. 565.002.  APPLICANT FOR OR HOLDER
OF PHARMACY LICENSE.  (a)  The board may discipline
an applicant for or the holder of a pharmacy license,
including a Class E pharmacy license subject to Section
565.003(b), if the board finds that the applicant
or license holder has:


(1)  been convicted of or placed on
deferred adjudication community supervision or deferred
disposition or the applicable federal equivalent for:


(A)  a misdemeanor:


(i)  involving moral turpitude;
or


(ii)  under Chapter 481 or 483, Health
and Safety Code, or the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
or


(B)  a felony or, if the
applicant or license holder is a legal business entity,
that a managing officer of the applicant or license
holder has been convicted of a misdemeanor involving
moral turpitude or a felony under the law of this state,
another state, or the United States;


(2)  advertised a prescription drug or
device in a deceitful, misleading, or fraudulent manner;


(3)  violated any provision of this subtitle
or any rule adopted under this subtitle or that an
owner or employee of a pharmacy has violated any provision
of this subtitle or any rule adopted under this subtitle;


(4)  sold without legal authorization a
prescription drug or device to a person other than:


(A)  a pharmacy licensed by the board;


(B)  a practitioner;


(C)  a person who procures a prescription
drug or device for lawful research, teaching, or testing,
and not for resale;


(D)  a manufacturer or wholesaler licensed
by the commissioner of public health as required by
Chapter 431, Health and Safety Code; or


(E)  a carrier or warehouseman;


(5)  allowed an employee who is not a pharmacist
to practice pharmacy;


(6)  sold an adulterated or misbranded
prescription or nonprescription drug;


(7)  failed to engage in or ceased to engage
in the business described in the application for a
license;


(8)  failed to maintain records as required
by this subtitle, Chapter 481 or 483, Health and Safety
Code, the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (21 U.S.C. Section 801 et seq.), or any
rule adopted under this subtitle or Chapter 483, Health
and Safety Code;


(9)  failed to establish and maintain effective
controls against diversion of prescription drugs into
other than a legitimate medical, scientific, or industrial
channel as provided by this subtitle, another state
statute or rule, or a federal statute or rule; or


(10)  engaged in fraud, deceit, or misrepresentation
as defined by board rule in operating a pharmacy or
in applying for a license to operate a pharmacy;


(11)  violated a disciplinary order;


(12)  been responsible for a drug audit
shortage; or


(13)  been disciplined by the regulatory
board of another state for conduct substantially equivalent
to conduct described under this subsection.


(b)  This subsection applies only to
an applicant or license holder that is a legal business
entity.  The board may discipline an applicant for
or the holder of a pharmacy license, including a Class
E pharmacy license, if the board finds that a managing
officer of the applicant or license holder has been
convicted of or placed on deferred adjudication community
supervision or deferred disposition or the applicable
federal equivalent for:


(1)  a misdemeanor:


(A)  involving moral turpitude; or


(B)  under Chapter 481 or 483, Health
and Safety Code, or the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
or


(2)  a felony.


(c)  A certified copy of the record
of the state taking action described by Subsection
(a)(13) is conclusive evidence of the action taken
by that state.


SECTION 27.  Section 565.051, Occupations
Code, is amended to read as follows:


Sec. 565.051.  DISCIPLINE AUTHORIZED. 
(a)  On a determination that a ground
for discipline exists under Subchapter A, or that a
violation of this subtitle or, to the extent
authorized by Subsection (b), 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)  impose more than one of the sanctions
listed in this subsection.


(b)  On a determination that a
rule of the board has been violated, the board may
impose only a sanction listed in Subsection (a)(1),
(3), (4), (6), or (7).  This subsection does not preclude
imposition of any sanction for violation of a board
rule regarding a controlled substance.


SECTION 28.  Section 565.053, Occupations
Code, is amended to read as follows:


Sec. 565.053.  DISCIPLINE OF CLASS E PHARMACY;
NOTICE TO RESIDENT STATE.  The board shall give
notice of (a)  Except in the case of an
emergency that creates an immediate danger to the public
health or safety, before initiating a disciplinary
action by the board against the holder of a
Class E pharmacy license to, the board
must file a complaint against the license holder with
the regulatory or licensing agency of the state in
which the pharmacy is located.


(b)  The board may initiate the
board's own action to discipline the holder of a Class
E pharmacy license if the regulatory or licensing agency
of the state in which the pharmacy is located:


(1)  fails to initiate an action
before the 61st day after the date the board files
a complaint under this section;


(2)  fails to resolve the complaint
on or before the 181st day after the date the complaint
is filed; or


(3)  lacks or fails to exercise
jurisdiction.


SECTION 29.  Section 565.059, Occupations
Code, is amended to read as follows:


Sec. 565.059.  TEMPORARY SUSPENSION OF
LICENSE OR REGISTRATION.  (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 board
determines from evidence or information presented to
the panel board that the
holder of a license or registration pharmacist
by continuation in practice would constitute a continuing
threat to the public welfare, the panel board
shall temporarily suspend the pharmacist's
license or registration.


(b)  The disciplinary panel board
may temporarily suspend the license or registration
without notice or hearing if, at the time the suspension
is ordered, a hearing before the panel board
on whether disciplinary proceedings under this chapter
should be initiated against the license
holder of a license or registration is scheduled
to be held not later than the 14th day after the date
of the suspension.


(c)  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 license or 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 of the panel at one location is inconvenient
for any member of the disciplinary panel.


SECTION 30.  Section 566.002, Occupations
Code, is amended by amending Subsection (a) and adding
Subsection (d) to read as follows:


(a)  The Except as provided
by this subsection, the amount of the administrative
penalty may not exceed $5,000 $2,500
for each violation, including.  The
amount of the administrative penalty for
a violation involving the diversion of a controlled
substance may not exceed $5,000 for each violation.


(d)  The board by rule shall adopt an
administrative penalty schedule for violations of this
subtitle or board rules to ensure that the amounts
of penalties imposed are appropriate to the violation.


SECTION 31.  Subsection (a), Section 566.051,
Occupations Code, is amended to read as follows:


(a)  The attorney general at the request
of the board may petition a district court for
an injunction to prohibit a person who is violating
this subtitle from continuing the violation.


SECTION 32.  Subchapter B, Chapter 566, Occupations
Code, is amended by adding Section 566.052 to read
as follows:


Sec. 566.052.  CEASE AND DESIST ORDER.
 (a)  If it appears to the board that a person is engaging
in an act or practice that constitutes the practice
of pharmacy without a license or registration under
this subtitle, the board, after notice and opportunity
for a hearing, may issue a cease and desist order prohibiting
the person from engaging in the activity.


(b)  A violation of an order issued
under this section constitutes grounds for imposing
an administrative penalty under Subchapter A.


SECTION 33.  Section 568.003, Occupations
Code, is amended to read as follows:


Sec. 568.003.  GROUNDS FOR REFUSAL
TO ISSUE OR RENEW REGISTRATION; DISCIPLINARY
ACTION.  (a)  The board may take disciplinary action
under Section 568.0035 refuse to issue
or renew a registration or may suspend or revoke any
registration issued by the board if the board
determines that the applicant or registrant has:


(1)  violated this subtitle or a rule adopted
under this subtitle;


(2)  engaged in gross immorality, as that
term is defined by the rules of the board;


(3)  engaged in any fraud, deceit, or misrepresentation,
as those terms are defined by the rules of the board,
in seeking a registration to act as a pharmacy technician;


(4)  been convicted of or placed on
deferred adjudication community supervision or deferred
disposition or the applicable federal equivalent for:


(A)  a misdemeanor:


(i)  involving moral turpitude;
or


(ii)  under Chapter 481 or 483, Health
and Safety Code, or the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
or


(B)  a felony;


(5)  a drug or alcohol dependency;


(6)  violated:


(A)  Chapter 481 or 483, Health and Safety
Code, or rules relating to those chapters;


(B)  Sections 485.031-485.035, Health and
Safety Code; or


(C)  a rule adopted under Section 485.011,
Health and Safety Code;


(7)  violated the pharmacy or drug laws
or rules of this state, another state, or the United
States; or


(8)  had a registration as a pharmacy technician
issued by another state revoked, surrendered, or suspended
for conduct substantially equivalent to conduct described
by Subdivisions (1)-(6).


(b)  A certified copy of the record of
a state taking action described by Subsection (a)(8)
is conclusive evidence of the action taken by the state.


SECTION 34.  Chapter 568, Occupations Code,
is amended by adding Section 568.0035 to read as follows:


Sec. 568.0035.  DISCIPLINE AUTHORIZED.
 On a determination that a ground for discipline exists
under Section 568.003, the board may:


(1)  suspend the person's registration;


(2)  revoke the person's registration;


(3)  restrict the person's registration
to prohibit the person from performing certain acts
or from practicing as a pharmacy technician 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
registration;


(6)  place the offender's registration
on probation and supervision by the board for a period
determined by the board and impose a requirement that
the registrant:


(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 registrant 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 registrant during
the period of probation;


(7)  reprimand the person;


(8)  retire the person's registration
as provided by board rule; or


(9)  impose more than one of the sanctions
listed in this section.


SECTION 35.  Chapter 568, Occupations Code,
is amended by adding Section 568.007 to read as follows:


Sec. 568.007.  REGISTRATION OF PHARMACY
TECHNICIAN TRAINEE.  (a)  A person must register with
the board before beginning work in a pharmacy in this
state as a pharmacy technician trainee.


(b)  An application for registration
as a pharmacy technician trainee must be on a form
prescribed by the board.


(c)  A person's registration as a pharmacy
technician trainee remains in effect as long as the
person meets the qualifications specified by board
rule.


(d)  The board may, on a determination
that a ground for discipline exists under Section 568.003,
take disciplinary action against a pharmacy technician
trainee under Section 568.0035.


SECTION 36.  The legislature finds that:


(1)  prescription drugs are expensive to
the point that some residents of this state have been
forced to choose between purchasing prescription drugs
and paying for other essentials, such as groceries
or rent;


(2)  prescription drugs can be purchased
at much lower costs in Canada;


(3)  scams offering low-cost prescription
drugs are prevalent on the Internet and in spam e-mail,
and these practices make it difficult for consumers
in this state to determine how and where to purchase
safe and effective prescription drugs at affordable
prices;


(4)  the Regulatory Procedures Manual of
the United States Food and Drug Administration authorizes
agency personnel to allow the importation of products
regulated by that agency when the quantity and purpose
are clearly for personal use and the product does not
present an unreasonable risk to the user; and


(5)  other states and municipalities provide
Internet websites and other methods to allow residents
of those states or municipalities to safely purchase
prescription drugs from Canada.


SECTION 37.  Subchapter A, Chapter 554, Occupations
Code, is amended by adding Section 554.016 to read
as follows:


Sec. 554.016.  CANADIAN PHARMACY INSPECTION;
DESIGNATION; FEES; INFORMATION.  (a)  The board shall
designate at least one and not more than 10 Canadian
pharmacies whose primary business is to dispense prescription
drugs under prescription drug orders to Canadian residents,
as having passed inspection by the board for shipping,
mailing, or delivering to this state a prescription
dispensed under a prescription drug order to a resident
in this state.


(b)  The board by rule shall set fees
in amounts reasonable and necessary to cover the costs
incurred by the board in inspecting Canadian pharmacies
as provided by Subsection (a).


(c)  The board shall establish and maintain
an Internet website to provide information necessary
to enable residents of this state to conveniently order
prescription drugs from Canadian pharmacies designated
by the board as having passed inspection to dispense
prescription drugs to residents in this state in accordance
with this subtitle and board rules.  The board shall
include on the website a statement that the board is
not liable for any act or omission of a Canadian pharmacy
designated as having passed inspection to dispense
prescription drugs to residents in this state.


SECTION 38.  Subchapter B, Chapter 556, Occupations
Code, is amended by adding Section 556.0555 to read
as follows:


Sec. 556.0555.  INSPECTIONS.  (a)  At
least annually, the board shall conduct random inspections
of Canadian pharmacies designated under Section 554.016
as necessary to ensure compliance with the safety standards
and other requirements of this subtitle and board rules.


(b)  Notwithstanding the requirements
of this chapter, the board by rule may establish the
standards and procedures for inspections under this
section.


(c)  The board may enter into a written
agreement with another state for an agency or employee
of the state to perform services for the board related
to inspecting a Canadian pharmacy designated by the
board under Section 554.016 to dispense prescription
drugs to residents in this state.  This subsection
does not apply to the initial inspection of the pharmacy.


SECTION 39.  Section 560.001, Occupations
Code, is amended by adding Subsection (c) to read as
follows:


(c)  A pharmacy located in Canada may
not ship, mail, or deliver to this state a prescription
drug dispensed under a prescription drug order to a
resident of this state unless the pharmacy is designated
by the board under Section 554.016.


SECTION 40.  Subchapter B, Chapter 560, Occupations
Code, is amended by adding Section 560.0525 to read
as follows:


Sec. 560.0525.  ADDITIONAL QUALIFICATION
REQUIREMENTS FOR CANADIAN PHARMACIES.  (a)  To pass
an inspection by the board, a Canadian pharmacy must
meet Texas licensing standards.


(b)  In addition to satisfying the other
requirements of this chapter, to qualify for designation
by the board under Section 554.016, a Canadian pharmacy
applicant must submit to the board:


(1)  evidence satisfactory to the board
that the applicant holds a pharmacy license, registration,
or permit in good standing issued by Canada or the
Canadian province in which the pharmacy is located
and is not subject to any pending disciplinary action
or legal action by any regulatory authority;


(2)  the name and address of the pharmacy's
owner and pharmacist-in-charge for service of process;


(3)  evidence of the applicant's ability
to provide to the board, not later than 72 hours after
the time the board requests the record, a record of
a prescription drug order authorizing the pharmacy
to dispense a prescription drug to a resident of this
state;


(4)  an affidavit by the pharmacist-in-charge
that states the pharmacist has read and understands
this subtitle and the rules adopted under this subtitle
that relate to a Canadian pharmacy designated by the
board as having passed inspection to dispense prescription
drugs to residents in this state;


(5)  evidence satisfactory to the board
that the applicant meets the standards established
by board rule to ensure customer safety for each order
filled and in the dispensing, storing, packaging, shipping,
and delivering of prescription drugs; and


(6)  evidence satisfactory to the board
that the applicant's employees hold the appropriate
Canadian licenses required to dispense prescription
drugs in Canada.


(c)  Before a Canadian pharmacy is designated
as having passed inspection to dispense prescription
drugs to residents in this state, a representative
of the board shall visit the pharmacy's facilities
and review the pharmacy's compliance with the requirements
and safety standards established under this subtitle.


SECTION 41.  Section 562.101, Occupations
Code, is amended by adding Subsection (f-1) to read
as follows:


(f-1)  A Canadian pharmacy designated
by the board as having passed inspection to dispense
prescription drugs to residents in this state is required
to be under the continuous on-site supervision of a
pharmacist and shall designate one pharmacist licensed
to practice pharmacy by the regulatory or licensing
agency of Canada or of the Canadian province in which
the Canadian pharmacy is located to serve as the pharmacist-in-charge
of the Canadian pharmacy.


SECTION 42.  Subchapter C, Chapter 562, Occupations
Code, is amended by adding Section 562.111 to read
as follows:


Sec. 562.111.  PRESCRIPTION DRUG ORDER
FOR CONSUMER.  (a)  A pharmacy in this state may order
for a consumer a prescription drug from a Canadian
pharmacy designated by the board under Section 554.016
to dispense prescription drugs to residents in this
state.


(b)  A pharmacy may order a prescription
drug under this section only with the knowledge and
clear consent of the consumer.


SECTION 43.  Chapter 562, Occupations Code,
is amended by adding Subchapter E to read as follows:






Sec. 562.201.  ADDITIONAL PRACTICE REQUIREMENTS.
 In addition to complying with the other requirements
of this chapter, a Canadian pharmacy designated by
the board under Section 554.016 shall:


(1)  dispense a prescription drug to
a resident of this state only under the lawful order
of a practitioner licensed in the United States;


(2)  dispense to a resident of this
state only a prescription drug that is approved by
Canada's Therapeutic Products Directorate for sale
to residents of Canada;


(3)  dispense to a resident of this
state a prescription drug in the original, unopened
manufacturer's packaging whenever possible; and


(4)  dispense to a resident of this
state only drugs prescribed for long-term use.


Sec. 562.202.  LIMITATIONS ON PRACTICE.
 A Canadian pharmacy designated by the board under
Section 554.016 to dispense prescription drugs to residents
in this state may not:


(1)  dispense to a resident of this
state a prescription drug for which there is not an
equivalent drug approved by the United States Food
and Drug Administration for sale in the United States;


(2)  dispense to a resident of this
state a prescription drug that cannot be safely shipped
by mail, common carrier, or delivery service;


(3)  dispense in one order to a resident
of this state a quantity of a prescription drug that
exceeds:


(A)  a three-month supply; or


(B)  the amount ordered by the practitioner;


(4)  fill a prescription drug order
for a consumer who is a resident of this state that
the consumer indicates is the consumer's first prescription
for that drug; or


(5)  dispense to a resident of this
state any of the following:


(A)  a substance designated as a controlled
substance under Chapter 481, Health and Safety Code
(Texas Controlled Substances Act);


(B)  a biological product, as described
by Section 351, Public Health Service Act (42 U.S.C.
Section 262);


(C)  an infused drug, including a peritoneal
dialysis solution;


(D)  an intravenously injected drug;
or


(E)  a drug that is inhaled during surgery.


Sec. 562.203.  COMPLAINT REPORT.  A
Canadian pharmacy designated by the board under Section
554.016 to dispense prescription drugs to residents
in this state shall provide to the board periodic reports
in accordance with board rules on each complaint received
by the pharmacy from a consumer in this state who purchases
a prescription drug from the pharmacy.


Sec. 562.204.  PRICE LIST.  A Canadian
pharmacy designated by the board under Section 554.016
shall:


(1)  compile and maintain a current
price list for prescription drugs provided to residents
in this state; and


(2)  guarantee those prices for not
less than 30 days from the date the list is effective.


SECTION 44.  (a)  Subsections (o) and (p),
Section 481.074, Health and Safety Code, are amended
to read as follows:


(o)  A pharmacist may dispense a Schedule
II controlled substance pursuant to a facsimile copy
of an official prescription completed in the manner
required by Section 481.075 and transmitted by the
practitioner or the practitioner's agent to the pharmacy
if:


(1)  the prescription is written for:


(A)  a Schedule II narcotic or nonnarcotic
substance for a patient in a long-term care facility
(LTCF), and the practitioner notes on the prescription
"LTCF patient";


(B)  a Schedule II narcotic product to
be compounded for the direct administration to a patient
by parenteral, intravenous, intramuscular, subcutaneous,
or intraspinal infusion; or


(C)  a Schedule II narcotic substance for
a patient with a medical diagnosis documenting a terminal
illness or a patient enrolled in a hospice care program
certified or paid for by Medicare under Title XVIII,
Social Security Act (42 U.S.C. Section 1395 et seq.),
as amended, or a hospice program that is licensed under
Chapter 142, and the practitioner or the practitioner's
agent notes on the prescription "terminally ill" or
"hospice patient"; and


(2)  after transmitting the prescription,
the prescribing practitioner or the practitioner's
agent:


(A)  writes across the face of the official
prescription "VOID--sent by fax to (name and telephone
number of receiving pharmacy)"; and


(B)  files the official prescription
in the patient's medical records instead of delivering
it to the patient promptly complies with
Subsection (p).


(p)  Not later than the seventh
day after the date a prescribing practitioner transmits
the facsimile copy of the official prescription to
the pharmacy, the prescribing practitioner shall deliver
in person or mail the official written prescription
to the dispensing pharmacist at the pharmacy where
the prescription was dispensed.  The envelope of a
prescription delivered by mail must be postmarked not
later than the seventh day after the date the official
prescription was written.  On receipt of
the prescription, the dispensing pharmacy shall file
the facsimile copy of the prescription with
the official prescription and shall send
information to the director as required by Section
481.075.


(b)  This section takes effect immediately
if this Act 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 section takes effect September 1, 2005.


SECTION 45.  Subsection (a), Section 565.003,
and Section 565.060, Occupations Code, are repealed.


SECTION 46.  On the effective date of this
Act the state pharmacy account is abolished and the
comptroller of public accounts shall transfer money
in the account to the general revenue fund.


SECTION 47.  (a)  The changes in law made
by this Act to Section 552.004, Occupations Code, do
not affect the entitlement of a member serving on the
Texas State Board of Pharmacy immediately before September
1, 2005, to continue to serve and function as a member
of the Texas State Board of Pharmacy for the remainder
of the term the member is serving on that date.  Those
changes in law apply only to a member appointed on
or after September 1, 2005.


(b)  The changes in law made by this Act
governing the eligibility of a person or pharmacy for
a license under Chapter 558 or 560, Occupations Code,
apply only to an application for a license filed with
the Texas State Board of Pharmacy on or after the effective
date of this Act.  A license application filed before
the effective date of this Act is governed by the law
in effect at the time the application was filed, and
the former law is continued in effect for that purpose.


(c)  Sections 559.003 and 561.003, Occupations
Code, as amended by this Act, and Section 561.0031,
Occupations Code, as added by this Act, apply only
to the renewal of a license to practice pharmacy or
a pharmacy license that expires on or after the effective
date of this Act.  A license that expires before that
date is governed by the law in effect on the date the
license expires, and the former law is continued in
effect for that purpose.


(d)  The changes in law made by this Act
to Chapter 565, Occupations Code, relating to conduct
that is grounds for imposition of a disciplinary sanction
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 occurred, and the former law is
continued in effect for that purpose.


SECTION 48.  (a)  Not later than the 30th
day after the effective date of this Act, the Texas
State Board of Pharmacy shall adopt the initial rules
necessary to implement the changes in law made by this
Act to Subtitle J, Title 3, Occupations Code, in the
manner provided by law for adoption of emergency rules.
 This subsection expires January 1, 2006.


(b)  Not later than January 1, 2006, the
Texas State Board of Pharmacy shall adopt the rules
necessary to implement the changes in law made by this
Act to Subtitle J, Title 3, Occupations Code.


(c)  The requirements for a Canadian pharmacy
to be designated under Section 554.016, Occupations
Code, as added by this Act, to dispense prescription
drugs in this state under Subtitle J, Title 3, Occupations
Code, as amended by this Act, take effect March 1,
2006.


SECTION 49.  Except as otherwise provided
by this Act, this Act takes effect September 1, 2005.





______________________________   ______________________________



President of
the Senate             Speaker of the House



I hereby certify that S.B. No. 410 passed
the Senate on May 5, 2005, by the following vote: 
Yeas 29, Nays 0; and that the Senate concurred in House
amendments on May 29, 2005, by the following vote:
 Yeas 31, Nays 0.




______________________________


    Secretary of the Senate




I hereby certify that S.B. No. 410 passed
the House, with amendments, on May 23, 2005, by the
following vote:  Yeas 141, Nays 0, two present not
voting.




______________________________


    Chief Clerk of the House




Approved:


______________________________


             Date


______________________________


           Governor