Part 15.
TEXAS STATE BOARD OF PHARMACY
Chapter 281.
ADMINISTRATIVE PRACTICE AND PROCEDURES
Subchapter A. GENERAL PROVISIONS
The Texas State Board of Pharmacy adopts repeal of §281.9 concerning
Rules Governing Disciplinary Actions and simultaneously adopts new §281.9
concerning Grounds for Discipline for a Pharmacy Technician or a Pharmacy
Technician Trainee. The repeal is adopted as published in the March 31, 2006,
issue of the
Texas Register
(31 TexReg 2800).
New §281.9 is adopted with changes to the proposed text published in
the March 31, 2006, issue of the
Texas Register
(31
TexReg 2801).
The new rule provides a more organized Chapter 281 regarding disciplinary
guidelines and outlines the grounds for discipline for pharmacy technicians
and pharmacy technician trainees.
Written comments were received from the Texas Pharmacy Association recommending
clarifications to the proposed new rule. The Board agreed with these comments
and made appropriate changes.
22 TAC §281.9
The repeal is adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the repeal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604267
Gay Dodson, R. Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §281.9
The new rule is adopted under §551.002 and §554.051
of Texas Pharmacy Act, Chapter 551 - 566 and 568 - 569, Texas Occupations
Code. The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051 as authorizing the agency to
adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Chapters 551 - 566 and 568 - 569, Texas
Occupations Code.
§281.9.Grounds for Discipline for a Pharmacy Technician or a Pharmacy Technician Trainee.
(a)
For the purposes of the Act, §568.003(a)(2), the term
"gross immorality" shall include, but not be limited to:
(1)
conduct which is willful, flagrant, and shameless, and
which shows a moral indifference to standards of the community;
(2)
engaging in an act which is a felony; or
(3)
engaging in an act that constitutes sexually deviant behavior.
(b)
For the purposes of the Act, §568.003(a)(3), the terms
"fraud," "deceit," or "misrepresentation" shall apply to an individual seeking
a registration as a pharmacy technician, as well as making an application
to any entity that certifies or registers pharmacy technicians, and shall
be defined as follows:
(1)
"Fraud" means an intentional perversion of truth for the
purpose of inducing the board in reliance upon it to issue a registration;
a false representation of a matter of fact, whether by words or by conduct,
by false or misleading allegations, or by concealment of that which should
have been disclosed, which deceives or is intended to deceive the board.
(2)
"Deceit" means the assertion, as a fact, of that which
is not true by any means whatsoever to deceive or defraud the board.
(3)
"Misrepresentation" means a manifestation by words or other
conduct which is a false representation of a matter of fact.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on August 14, 2006.
TRD-200604268
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §281.20, §281.57
The Texas State Board of Pharmacy adopts the repeal of §281.20,
concerning Criminal Convictions and §281.57, concerning Disciplinary
Guidelines. The repeal is adopted without changes to the proposal as published
in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2801).
The repeal eliminates the sections of the rules that are no longer necessary
since the provisions of these sections are incorporated into new §281.62
and §281.63.
No comments were received regarding the proposal.
The repeal is adopted under §551.002 and §554.051 of
the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the repeal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604271
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §§281.60 - 281.65
The Texas State Board of Pharmacy adopts new §281.60
concerning General Guidelines, §281.61 concerning Definitions of Discipline
Authorized, §281.62 concerning Aggravating and Mitigating Factors, §281.63
concerning Considerations for Criminal Offenses, §281.64 concerning Sanctions
for Criminal Offenses, and §281.65 concerning Schedule of Administrative
Penalties. The new rules are adopted with changes to the proposed text of §§281.60,
281.61, 281.62, 281.63, 281.64, and 281.65 as published in the March 31, 2006,
issue of the
Texas Register
(31 TexReg 2802).
Changes were made to make the rules more clear based on staff recommendations
and to be consistent with the Board's disciplinary policies.
New §281.60 provides general guidelines in disciplinary matters. New §281.61
provides definitions of types of discipline authorized and was previously
found in §281.9 concerning Rules Governing Disciplinary Actions. New §281.62
provides the aggravating and mitigating factors for consideration by the Board
to merit a more severe or more restrictive disciplinary action and was previously
found in §281.57 concerning Disciplinary Guidelines. New §281.63
provides guidelines on the eligibility of persons with criminal backgrounds
to obtain a license or registration and on the disciplinary actions taken
by the Board. New §281.64 provides the sanctions for applicants with
criminal offenses. New §281.65 provides the schedule of administrative
penalties.
Written comments were received from the Texas Pharmacy Association recommending
clarifications to the proposed new rules. The Board agreed with these comments
and made appropriate changes.
The new rules are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551-566 and 568-569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551-566
and 568-569, Texas Occupations Code.
§281.60.General Guidance.
(a)
This subchapter is promulgated to:
(1)
promote consistency and guidance in the exercise of sound
discretion by the agency in licensure and disciplinary matters;
(2)
provide notice as to the types of conduct that constitute
violations of the Act and as to the disciplinary action that may be imposed;
and
(3)
provide a framework of analysis for administrative law
judges in making recommendations in licensure and disciplinary matters.
(b)
Board's role. The board shall render the final decision
in a contested case and has the responsibility to assess sanctions against
licensees who are found to have violated the Act. The board welcomes recommendations
of administrative law judges as to the sanctions to be imposed, but the board
is not bound by such recommendations. A sanction should be consistent with
sanctions imposed in other similar cases and should reflect the board's determination
of the seriousness of the violation and the sanction required to deter future
violations. A determination of the appropriate sanction is reserved to the
board. The appropriate sanction is not a proper finding of fact or conclusion
of law. This subchapter shall be construed and applied so as to preserve board
member discretion in the imposition of sanctions and remedial measures pursuant
to the APA and the Act's provisions related to types of discipline and administrative
penalties. This subchapter shall be further construed and applied so as to
be consistent with the Act, and shall be limited to the extent as otherwise
proscribed by statute and board rule.
(c)
Purpose of guidelines. These guidelines are designed to
provide guidance in assessing sanctions for violations of the Act. The ultimate
purpose of disciplinary sanctions is to protect and inform the public, deter
future violations, offer opportunities for rehabilitation, if appropriate,
punish violators, and deter others from violations. These guidelines are intended
to promote consistent sanctions for similar violations, facilitate timely
resolution of cases, and encourage settlements.
(1)
The standard sanctions outlined in the subchapter apply
to cases involving a single violation of the Act, and in which there are no
aggravating or mitigating factors that apply. The board may impose more restrictive
sanctions when there are multiple violations of the Act. The board may impose
more or less severe or restrictive sanctions, based on any aggravating and/or
mitigating factors listed in section 281.62 (relating to Aggravating and Mitigating
Factors) that are found to apply in a particular case.
(2)
The standard and minimum sanctions outlined in the subchapter
are applicable to first time violators. The board shall consider revoking
the person's license if the person is a repeat offender.
(3)
The maximum sanction in all cases is revocation of the
licensee's license, which may be accompanied by an administrative penalty
of up to $5,000 per violation. Each day the violation continues is a separate
violation.
(4)
Each statutory violation constitutes a separate offense,
even if arising out of a single act.
§281.61. Definitions of Discipline Authorized.
For the purpose of the Act, §565.051 and §568.0035:
(1)
"Probation" means the suspension of a sanction imposed
against a license during good behavior, for a term and under conditions as
determined by the board.
(2)
"Reprimand" means a public and formal censure against a
license.
(3)
"Restrict" means to limit, confine, abridge, narrow, or
restrain a license for a term and under conditions determined by the board.
(4)
"Revoke" means a license is void and may not be reissued;
provided, however, upon the expiration of 12 months from and after the effective
date of the order revoking a pharmacist license, application may be made to
the board by the former licensee for the issuance of a license upon the successful
completion of any examination required by the board.
(5)
"Suspend" means a license is of no further force and effect
for a period of time as determined by the board.
(6)
"Retire" means a license has been withdrawn and is of no
further force and effect.
§281.62.Aggravating and Mitigating Factors.
(a)
Aggravation. The following may be considered as aggravating
factors so as to merit more severe or more restrictive action by the board:
(1)
patient harm and the severity of patient harm;
(2)
economic harm to any individual, entity, or the environment,
and the severity of such harm;
(3)
increased potential for harm to the public;
(4)
attempted concealment of the conduct which serves as a
basis for disciplinary action under the Act;
(5)
premeditated conduct which serves as a basis for disciplinary
action under the Act;
(6)
intentional conduct which serves as a basis for disciplinary
action under the Act;
(7)
motive for conduct which serves as a basis for disciplinary
action under the Act;
(8)
prior conduct of a similar or related nature;
(9)
disciplinary actions taken by any regulatory agency of
the federal government or any state;
(10)
prior written warnings or written admonishments from any
government agency or official regarding statutes or regulations pertaining
to the conduct which serves as a basis for disciplinary action under the Act;
(11)
violation of a board order;
(12)
failure to implement remedial measures to correct or mitigate
harm from the conduct which serves as a basis for disciplinary action under
the Act;
(13)
lack of rehabilitative potential or likelihood for future
conduct of a similar nature; and
(14)
relevant circumstances increasing the seriousness of the
conduct which serves as a basis for disciplinary action under the Act.
(b)
Extenuation and Mitigation. The following may be considered
as extenuating and mitigating factors so as to merit less severe or less restrictive
action by the board:
(1)
absence of patient harm;
(2)
absence of economic harm to any individual or entity;
(3)
absence of environmental harm;
(4)
absence of potential harm to the public;
(5)
self-reported and voluntary admissions of the conduct which
serves as a basis for disciplinary action under the Act;
(6)
absence of premeditation to commit the conduct which serves
as a basis for disciplinary action under the Act;
(7)
absence of intent to commit the conduct which serves as
a basis for disciplinary action under the Act;
(8)
motive;
(9)
absence of prior conduct of a similar or related nature;
(10)
absence of a disciplinary actions taken by any regulatory
agency of the federal government or any state;
(11)
implementation of remedial measures to correct or mitigate
harm from the conduct which serves as a basis for disciplinary action under
the Act;
(12)
rehabilitative potential;
(13)
prior community service and present value to the community;
(14)
relevant circumstances reducing the seriousness of the
conduct which serves as a basis for disciplinary action under the Act; and
(15)
relevant circumstances lessening responsibility for the
conduct which serves as a basis for disciplinary action under the Act.
§281.63.Considerations for Criminal Offenses.
(a)
The purpose of this section is to establish guidelines
and criteria on the eligibility of persons with criminal backgrounds to obtain
a license or registration from the board and on the disciplinary actions taken
by the board. The section applies to criminal convictions and to deferred
adjudication community supervisions or deferred dispositions, as authorized
by the Act, for all types of licenses and registrations.
(b)
The board may suspend, revoke, or impose other authorized
disciplinary action on a current license or registration, disqualify a person
from receiving a license or registration, or deny to a person the opportunity
to be examined for a license or registration because of a person's conviction
or deferred adjudication of a crime that serves as a ground for discipline
under the Act, and that directly relates to the duties and responsibilities
of a licensee, a registrant, or of an owner of a pharmacy. This subsection
applies to persons who are not imprisoned at the time the board considers
the conviction or deferred adjudication.
(c)
The board shall revoke a license or registration upon the
imprisonment of the licensee, the registrant, or the owner of a pharmacy following
a felony conviction or deferred adjudication, or revocation of felony community
supervision, parole, or mandatory supervision.
(d)
A person in prison is not eligible for a license or registration.
(e)
An applicant for a license or registration from the board
shall disclose in writing to the board any conviction or deferred adjudication
against him or her at the time of application. A current licensee or registrant
shall disclose in writing to the board any conviction or deferred adjudication
against him or her at the time of renewal.
(f)
In considering whether a criminal conviction or deferred
adjudication directly relates to the occupation of a licensee or a registrant,
or the operation of a pharmacy, the board shall consider:
(1)
the nature and seriousness of the crime;
(2)
the relationship of the crime to the purposes for requiring
a license or registration to engage in the occupation of the licensee or registrant,
or the operation of a pharmacy;
(3)
the extent to which a license or registration might afford
the licensee or registrant an opportunity to repeat the criminal activity
in which the person had been involved; and
(4)
the relationship of the crime to the ability, capacity,
or fitness required to perform the duties and discharge the responsibilities
of the licensee or registrant.
(g)
In reaching a decision regarding the type of disciplinary
sanction to impose on a license or registration, the board shall also determine
the person's fitness to perform the duties and discharge the responsibilities
of a licensee or registrant based on:
(1)
the extent and nature of the person's past criminal activity;
(2)
the age of the person at the time of the commission of
the crime;
(3)
the amount of time that has elapsed since the person's
last criminal activity;
(4)
the conduct and work activity of the person prior to and
following the criminal activity;
(5)
evidence of the person's rehabilitation or rehabilitative
effort while incarcerated or following release; and
(6)
other evidence of the person's present fitness, including
letters of recommendation from:
(A)
prosecution, law enforcement, and correctional officers
who prosecuted, arrested, or had custodial responsibility for the person;
(B)
the sheriff and chief of police in the community where
the person resides; and
(C)
any other persons in contact with the convicted person.
(h)
A person with a conviction or deferred adjudication shall:
(1)
to the extent possible, secure and provide to the board
the recommendations of the prosecution, law enforcement, and correctional
authorities specified in subsection (g)(6) of this section;
(2)
cooperate with the board by providing the information required
by this section, including proof that he or she has:
(A)
maintained a record of steady employment, as evidenced
by salary stubs, income tax records or other employment records for the time
since the conviction or deferred adjudication and/or release from imprisonment;
(B)
supported his or her dependents, as evidenced by salary
stubs, income tax records or other employment records for the time since the
conviction or deferred adjudication and/or release from imprisonment, and
a letter from the spouse or other parent;
(C)
maintained a record of good conduct as evidenced by letters
of recommendation, absence of other criminal activity or documentation of
community service since conviction or deferred adjudication; and
(D)
paid all outstanding court costs, supervision fees, fines,
and restitution as may have been ordered in all criminal cases in which he
or she has been convicted, as evidenced by certified copies of a court release
or other documentation from the court system that all monies have been paid.
(i)
The following crimes relate to board licensees or registrants.
The commission of each indicates an inability or a tendency for the person
to be unable to perform or to be unfit for licensure or registration, because
violation of such crimes indicates a lack of integrity and respect for one's
fellow human being and the community at large. The direct relationship to
a license or registration is presumed when the crime occurs in connection
with the practice of pharmacy or the operation of a pharmacy.
(1)
practicing or operating a pharmacy without a license or
registration and other violations of the Pharmacy Act;
(2)
deceptive business practices under the Texas Penal Code;
(3)
medicare or medicaid fraud;
(4)
a misdemeanor or felony offense under the Texas Penal Code
involving:
(A)
murder;
(B)
assault;
(C)
burglary;
(D)
robbery;
(E)
theft;
(F)
sexual assault;
(G)
injury to a child;
(H)
injury to an elderly person;
(I)
child abuse or neglect;
(J)
tampering with a governmental record;
(K)
forgery;
(L)
perjury;
(M)
failure to report abuse;
(N)
bribery;
(O)
harassment;
(P)
insurance claim fraud;
(Q)
solicitation of professional employment under the Penal
Code §38.12(d) or Occupations Code, Chapter 102; or
(R)
mail fraud;
(5)
delivery, possession, manufacture, or use of, or dispensing
or prescribing a controlled substance, dangerous drug, or narcotic; or
(6)
other misdemeanors or felonies which serve as grounds for
discipline under the Act, including violations of the Penal Code, Titles 4,
5, 6, 7, 8, 9, and 10, which indicate an inability or tendency for the person
to be unable to perform as a licensee or registrant, or to be unfit for licensure
or registration, if action by the board will promote the intent of the Pharmacy
Act, board rules including this chapter, and Occupations Code, Chapter 53.
§281.64.Sanctions for Applicants with Criminal Offenses.
(a)
The guidelines for disciplinary sanctions apply to criminal
convictions and to deferred adjudication community supervisions or deferred
dispositions, as authorized by the Act, for applicants for all types of licenses
and registrations issued by the board. The board considers criminal behavior
to be highly relevant to an individual's fitness to engage in pharmacy practice.
(b)
The sanctions imposed by the guidelines can be used in
conjunction with other types of disciplinary actions, including administrative
penalties, as outlined in this section.
(c)
The following sanctions apply to applicants with the criminal
offenses described below:
(1)
Criminal offenses which require the individual to register
with the Department of Public Safety as a sex offender under Chapter 62, Code
of Criminal Procedure - denial;
(2)
Felony offenses:
(A)
Drug-related offenses, such as those listed in Chapter
481 or 483, Health and Safety Code:
(i)
Offenses involving manufacture, delivery, or possession
with intent to deliver:
(I)
Currently on probation - denial;
(II)
0-5 years since conviction - denial;
(III)
6-10 years since conviction - denial;
(IV)
11-20 years since conviction - denial;
(V)
Over 20 years since conviction - 5 years probation;
(ii)
Offenses involving possession, fraud, or theft of drugs:
(I)
Currently on probation - denial;
(II)
0-5 years since conviction - evaluation by a mental health
professional indicating the individual is safe to engage in pharmacy practice
and 5 years probation;
(III)
6-10 years since conviction - evaluation by a mental
health professional indicating the individual is safe to engage in pharmacy
practice and 3 years probation;
(IV)
11-20 years since conviction - 2 years probation;
(V)
Over 20 years since conviction - 1 year probation;
(B)
Offenses involving sexual contact or violent acts, or offenses
considered to be felonies of the first degree under the Texas Penal Code:
(i)
Currently on probation - denial;
(ii)
0-5 years since conviction - denial;
(iii)
6-10 years since conviction - denial;
(iv)
11-20 years since conviction - 5 years probation;
(v)
Over 20 years since conviction - 1 year probation;
(C)
Other felony offenses:
(i)
Currently on probation - denial;
(ii)
0-5 years since conviction - 5 years probation;
(iii)
6-10 years since conviction - 3 years probation;
(iv)
11-20 years since conviction - 2 years probation;
(v)
Over 20 years since conviction - 1 year probation;
(3)
Misdemeanor offenses:
(A)
Drug-related offenses, such as those listed in Chapter
481 or 483, Health and Safety Code:
(i)
Offenses involving manufacture, delivery, or possession
with intent to deliver:
(I)
Currently on probation - denial;
(II)
0-10 years since conviction - 5 years probation;
(III)
Over 10 years since conviction - 3 years probation;
(ii)
Offenses involving possession, fraud, or theft of drugs:
(I)
0-5 years since conviction - evaluation by a mental health
professional indicating the individual is safe to engage in pharmacy practice
and 5 years probation;
(II)
6-10 years since conviction - evaluation by a mental health
professional indicating the individual is safe to engage in pharmacy practice
and 3 years probation;
(B)
Intoxication and alcoholic beverage offenses as defined
in the Texas Penal Code, if two such offenses occurred in the previous ten
years
(i)
0-5 years since conviction - evaluation by a mental health
professional indicating the individual is safe to engage in pharmacy practice
and 5 years probation;
(ii)
6-10 years since conviction - evaluation by a mental health
professional indicating the individual is safe to engage in pharmacy practice
and 3 years probation;
(C)
Other misdemeanor offenses involving moral turpitude:
(i)
0-5 years since conviction - 2 years probation;
(ii)
6-10 years since conviction - reprimand;
(d)
When an applicant has multiple criminal offenses or other
violations, the board shall consider imposing additional more severe types
of disciplinary sanctions, as deemed necessary.
§281.65.Schedule of administrative penalties.
In disciplinary matters, the board may assess an administrative penalty
in addition to any other disciplinary action in the circumstances and amounts
as follows:
(1)
The following violations by a pharmacist may be appropriate
for disposition with an administrative penalty with or without additional
sanctions or restrictions:
(A)
failure to provide patient counseling: $1,000;
(B)
failure to conduct a drug regimen review or inappropriate
drug regimen reviews provided by §291.33(c)(2)(A): $1,000;
(C)
failure to clarify a prescription with the prescriber:
$1,000;
(D)
failure to properly supervise or improperly delegating
a duty to a pharmacy technician: $1,000;
(E)
failure to identify the dispensing pharmacist on required
pharmacy records: $500;
(F)
failure to maintain records of prescriptions: $500;
(G)
failure to respond or failure to provide all requested
records within the time specified in a board audit of continuing education
records: $100 per hour of continuing education credit not provided;
(H)
failure to provide or providing false or fraudulent information
on any application, notification, or other document required under this Act,
the Dangerous Drug Act, or Controlled Substances Act, or rules adopted pursuant
to those Acts: $1,000;
(I)
shortages of prescription drugs following an accountability
audit: up to $5,000;
(J)
dispensing a prescription drug pursuant to a forged, altered,
or fraudulent prescription: up to $5,000;
(K)
dispensing unauthorized prescriptions: up to $5,000;
(L)
dispensing controlled substances or dangerous drugs to
an individual or individuals in quantities, dosages, or for periods of time
which grossly exceed standards of practice, approved labeling of the federal
Food and Drug Administration, or the guidelines published in professional
literature: up to $5,000;
(M)
violating the reporting provisions of an Order of the Board:
$500 - $1,000;
(N)
failure to report or to assure the report of a malpractice
claim: up to $1,000;
(O)
failure to respond within the time specified on a warning
notice to such warning notice issued as a result of a compliance inspection
or responding to a warning notice as a result of a compliance inspection in
a manner that is false or misleading: up to $1,000;
(P)
practicing pharmacy with a delinquent license: $250 - $1,000;
(Q)
operating a pharmacy with a delinquent license: $1,000
- $5, 000;
(R)
allowing an individual to perform the duties of a pharmacy
technician without a valid registration: $250 - $1,000;
(S)
failure to comply with the requirements of the Official
Prescription Program: up to $1,000;
(T)
aiding and abetting the unlicensed practice of pharmacy,
if the pharmacist knew or reasonably should have known that the person was
unlicensed at the time: up to $5,000;
(U)
a conviction or deferred adjudication for a misdemeanor
or felony, which serves as a ground for discipline under the Act: up to $5,000;
(V)
unauthorized substitutions: $1,000;
(W)
false or fraudulent claims to third parties for reimbursement
of pharmacy services: up to $5,000;
(X)
sale, purchase, or trade or offer to sell, purchase, or
trade of misbranded prescription drugs or prescription drugs beyond the manufacturer's
expiration date: up to $1,000;
(Y)
sale, purchase, or trade or offer to sell, purchase, or
trade of prescription drug samples as provided by §281.7 (a)(27) of this
title (relating to Grounds for Discipline for a Pharmacist License): up to
$1,000;
(Z)
failure to keep, maintain or furnish an annual inventory
as required by §291.17: $1,000;
(AA)
failure to obtain training on the preparation of sterile
pharmaceutical compounding: $1,000;
(BB)
failure to maintain the confidentiality of prescription
records: $1,000 - $5,000;
(CC)
failure to inform the board of any notification or information
required to be reported by the Act or rules: $250 - $500.
(2)
The following violations by a pharmacy may be appropriate
for disposition with an administrative penalty with or without additional
sanctions or restrictions:
(A)
failure to provide patient counseling: $1,500;
(B)
failure to conduct a drug regimen review or inappropriate
drug regimen reviews provided by §291.33(c)(2)(A): $1,500;
(C)
failure to clarify a prescription with the prescriber:
$1,500;
(D)
failure to properly supervise or improperly delegating
a duty to a pharmacy technician: $1,500;
(E)
failure to identify the dispensing pharmacist on required
pharmacy records: $500;
(F)
failure to maintain records of prescriptions: $500;
(G)
failure to provide or providing false or fraudulent information
on any application, notification, or other document required under this Act,
the Dangerous Drug Act, or Controlled Substances Act, or rules adopted pursuant
to those Acts: $1,000;
(H)
shortages of prescription drugs following an accountability
audit: up to $5,000;
(I)
dispensing a prescription drug pursuant to a forged, altered,
or fraudulent prescription: up to $5,000;
(J)
dispensing unauthorized prescriptions: up to $5,000;
(K)
dispensing controlled substances or dangerous drugs to
an individual or individuals in quantities, dosages, or for periods of time
which grossly exceed standards of practice, approved labeling of the federal
Food and Drug Administration, or the guidelines published in professional
literature: up to $5,000;
(L)
violating the reporting provisions of an Order of the Board:
$1,000 - $5,000;
(M)
failure to report or to assure the report of a malpractice
claim: up to $1,000;
(N)
failure to respond within the time specified on a warning
notice to such warning notice issued as a result of a compliance inspection
or responding to a warning notice as a result of a compliance inspection in
a manner that is false or misleading: up to $1,000;
(O)
allowing a pharmacist to practicing pharmacy with a delinquent
license: $250 - $1,000;
(P)
operating a pharmacy with a delinquent license: $1,000
- $5,000;
(Q)
allowing an individual to perform the duties of a pharmacy
technician without a valid registration: $250 - $1,000;
(R)
failure to comply with the requirements of the Official
Prescription Program: up to $1,000;
(S)
aiding and abetting the unlicensed practice of pharmacy,
if an employee of the pharmacy knew or reasonably should have known that the
person engaging in the practice of pharmacy was unlicensed at the time: up
to $5,000;
(T)
a conviction or deferred adjudication for a misdemeanor
or felony which serves as a ground for discipline under the Act: up to $5,000;
(U)
unauthorized substitutions: $1,000;
(V)
false or fraudulent claims to third parties for reimbursement
of pharmacy services: up to $5,000;
(W)
possessing or engaging in the sale, purchase, or trade
or the offer to sell, purchase, or trade of misbranded prescription drugs
or prescription drugs beyond the manufacturer's expiration date: up to $1,000;
(X)
possessing or engaging in the sale, purchase, or trade
or the offer to sell, purchase, or trade of prescription drug samples as provided
by §281.8 (b)(2) of this title (relating to Grounds for Discipline for
a Pharmacy License): up to $1,000;
(Y)
failure to keep, maintain or furnish an annual inventory
as required by §291.17: $1,000;
(Z)
failure to obtain training on the preparation of sterile
pharmaceutical compounding: $1,500;
(AA)
failure to maintain the confidentiality of prescription
records: $1,000 - $5,000;
(BB)
failure to inform the board of any notification or information
required to be reported by the Act or rules: $250 - $500.
(3)
The following violations by a pharmacy technician may be
appropriate for disposition with an administrative penalty with or without
additional sanctions or restrictions:
(A)
failure to respond or failure to provide all requested
records within the time specified in a board audit of continuing education
records: $30 per hour of continuing education credit not provided;
(B)
failure to provide or providing false or fraudulent information
on any application, notification, or other document required under this Act,
the Dangerous Drug Act, or Controlled Substances Act, or rules adopted pursuant
to those Acts: $500;
(C)
shortages of prescription drugs following an accountability
audit: up to $5,000;
(D)
violating the reporting provisions of an Order of the Board:
$250 - $500;
(E)
failure to report or to assure the report of a malpractice
claim: up to $500;
(F)
performing the duties of a pharmacy technician without
a valid registration: $250 - $1,000;
(G)
a conviction or deferred adjudication for a misdemeanor
or felony, which serves as a ground for discipline under the Act: up to $5,000;
(H)
false or fraudulent claims to third parties for reimbursement
of pharmacy services: up to $5,000;
(I)
failure to obtain training on the preparation of sterile
pharmaceutical compounding: $1,000;
(J)
failure to maintain the confidentiality of prescription
records: $1,000 - $5,000;
(K)
failure to inform the board of any notification or information
required to be reported by the Act or rules: $100 - $250.
(4)
Any of the violations listed in this section may be appropriate
for disposition by the administrative penalties in this section in conjunction
with any other penalties in §281.61 of this chapter.
(5)
Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty or fine.
(6)
The amount, to the extent possible, shall be based on:
(A)
the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited act, and the hazard or
potential hazard created to the health, safety, or economic welfare of the
public;
(B)
the economic harm to property or the environment caused
by the violation;
(C)
the history of previous violations;
(D)
the amount necessary to deter a future violation;
(E)
efforts to correct the violation; and
(F)
and other matter that justice may require.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604269
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §§281.71 - 281.76
The Texas State Board of Pharmacy adopts repeal of §281.71,
concerning Prerequisites to Adopting, Repealing, or Amending Rules, §281.72,
concerning Effective Date of Rules, §281.73, concerning Petition for
Adoption of Rules, §281.74, concerning President To Preside, §281.75,
concerning Amendments and the Repeal of Conflicting Rules, and §281.76,
concerning Effective Date. The repeal provides a more organized Chapter 281
regarding disciplinary guidelines. The repeal is adopted without changes to
the proposal as published in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2807).
The repealed rules are adopted as new rules in Subchapter D of Chapter
281 and are published elsewhere in this issue of the
Texas Register
.
No comments were received regarding the proposal.
The repeal is adopted under §551.002 and §554.051 of
the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the repeal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604272
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §§281.71 - 281.76
The Texas State Board of Pharmacy adopts new §281.71
concerning Prerequisites to Adopting, Repealing, or Amending Rules, §281.72
concerning Effective Date of Rules, §281.73 concerning Petition for Adoption
of Rules, §281.74 concerning President to Preside, §281.75 concerning
Amendments and the Repeal of Conflicting Rules, §281.76 concerning Effective
Date. The new §§281.71, 281.72, 281.73, 281.75, and 281.76 are adopted
without changes to the proposed text as published in the March 31, 2006, issue
of the
Texas Register
(31 TexReg 2808). The
new §281.74 is adopted with changes to the proposed text as published
in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2808).
The new rules provide a more organized Chapter 281 regarding disciplinary
guidelines and were previously found in Subchapter C of Chapter 281. The Board
also proposes the change of the name of the Subchapter from "Miscellaneous"
to "Rulemaking".
Written comments on the proposed rules were received from the Texas Pharmacy
Association (TPA). The TPA comment points out a typographic error in the title
of §281.74. The Board agrees and has modified the title to read "President
to Preside."
The new rules are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551-566 and 568-569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the new rule: Chapters 551-566 and 568-569, Texas
Occupations Code.
§281.74.President To Preside.
The president shall be the chairman and preside over all meetings of
the board at which the president is present unless otherwise provided for
under this chapter. In the absence of the president, the vice president shall
preside. In the vice president's absence, one of the other Board members shall
preside as acting chairman. The acting chairman shall be selected by mutual
agreement of the board members present or, lacking mutual agreement, shall
be the member senior in length of service on the board.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604270
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §281.80
The Texas State Board of Pharmacy adopts the repeal of §281.80,
concerning Grounds for Discipline for a Pharmacy Technician. The repeal is
adopted without changes to the proposal as published in the March 31, 2006,
issue of the
Texas Register
(31 TexReg 2809).
The repeal eliminates a section of the rules that is no longer necessary
since the provisions of this section are incorporated as new rules in Subchapter
A.
No comments were received regarding the proposal.
The repeal is adopted under §551.002 and §554.051 of
the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the repeal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604273
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §283.4, §283.7
The Texas State Board of Pharmacy adopts amendments to §283.4
and §283.7 concerning Internship Requirements and Examination Requirements.
The amendments are adopted with changes to the proposed text as published
in the June 23, 2006, issue of the
Texas Register
(31 TexReg 5004). A grammatical correction was made.
The amendments require applicants to submit fingerprint information in
order for the Board to access criminal history information.
No comments were received.
The amendments are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code) and §411.084 of the Government Code. The Board interprets §551.002
as authorizing the agency to protect the public through the effective control
and regulation of the practice of pharmacy. The Board interprets §554.051(a)
as authorizing the agency to adopt rules for the proper administration and
enforcement of the Act. The Board interprets §411.084 as authorizing
the agency to obtain criminal history information from the Federal Bureau
of Investigations.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code; Chapter 411, Government Code
§283.4.Internship Requirements.
(a)
Goals and competency objectives of internship.
(1)
The goal of internship is for the pharmacist-intern to
attain the knowledge, skills, and abilities to safely, efficiently, and effectively
provide pharmaceutical care to individual patients and practice pharmacy under
the laws and regulations of the State of Texas.
(2)
The following competency objectives are necessary to accomplish
the goal of internship in paragraph (1) of this subsection.
(A)
Provides drug products. The pharmacist-intern shall acquire
competence in determining the appropriateness of prescription drug orders
and medication orders; evaluating and selecting products; and assuring the
accuracy of the product/prescription dispensing process.
(B)
Communicates with patients and/or their care givers about
prescription drugs. The pharmacist-intern shall acquire competence in interviewing
and counseling patients, and/or their care givers, on drug usage, dosage,
packaging, and storage; discussing drug cautions, side effects, and patient
conditions; explaining policies on fees and services; relating to patients
in a professional manner; and interacting to confirm patient understanding.
(C)
Communicates with patients and/or their care givers about
nonprescription products, devices, and diagnostic aids. The pharmacist-intern
shall acquire competence in interviewing and counseling patients and/or their
care givers on conditions and intended drug use; assisting in and recommending
drug selection; referring patients to other health professionals; providing
information on medical/surgical and home health-care devices and home diagnostic
products; and providing poison control treatment information and referral.
(D)
Communicates with health professionals and the public.
The pharmacist-intern shall acquire competence in obtaining and providing
accurate and concise information in a professional manner and using appropriate
oral, written, and nonverbal language.
(E)
Collaborates with physicians, other health-care professionals,
patients and/or their care givers to develop a therapeutic plan which will
include monitoring and evaluating drug therapy. The pharmacist-intern shall
acquire competence in collaborating with physicians, other health care professionals,
patients, and/or their care givers to formulate a therapeutic plan. The pharmacist-intern
shall acquire competence in establishing and interpreting data-bases, identifying
drug-related problems and recommending appropriate pharmacotherapy specific
to patient needs and devising follow-up plans.
(F)
Maintains professional-ethical standards. The pharmacist-intern
is required to comply with laws and regulations pertaining to pharmacy practice;
to learn to apply good professional judgment; to exhibit reliability and credibility
in dealing with others; to deal professionally and ethically with colleagues
and patients; to demonstrate sensitivity and empathy for patients/care givers;
and to maintain confidentiality.
(G)
Compounds. The pharmacist-intern shall acquire competence
in using acceptable professional procedures; selecting appropriate equipment
and containers; appropriately preparing compounded dosage forms; and documenting
calculations and procedures.
(H)
Retrieves and evaluates drug information. The pharmacist-intern
shall acquire competence in selecting best available resources for answering
a drug-related request in a timely fashion and in interpreting the information
obtained and judging its relevance.
(I)
Manages general pharmacy operations. The pharmacist-intern
shall develop a general understanding of planning and policy-making. The pharmacist-intern
shall have an understanding of drug security, storage and control procedures,
and maintaining quality assurance. The pharmacist-intern shall learn to notice
and document discrepancies and irregularities, keep accurate records and document
actions. The pharmacist-intern shall attend meetings requiring pharmacy representation.
(J)
Understands the necessity of participating in public health
and professional activities. The pharmacist-intern shall develop basic knowledge
and skills needed to become an effective health educator and active participant
in public health programs and professional organizations.
(K)
Conducts research. The pharmacist-intern may develop research
skills to expand and/or refine knowledge in the areas of pharmaceutical sciences
or pharmaceutical services. This includes data collection and analysis of
scientific, clinical, sociological, and/or economic impacts of pharmaceuticals
(including investigational drugs), pharmaceutical care, and patient behaviors,
with dissemination of findings to the scientific community and the public.
(b)
Hours requirement.
(1)
The board requires 1,500 hours of internship for licensure.
These hours may be obtained through one of more of the following methods:
(A)
in a board approved student internship program, as specified
in subsection (c) of this section;
(B)
in a board-approved extended-internship program as specified
in subsection (d) of this section; and/or
(C)
through internship hours approved and certified to the
board by another state board of pharmacy.
(2)
Pharmacist-interns participating in an internship may be
credited no more than 50 hours per week of internship experience.
(3)
Internship hours may be used for the purpose of licensure
for no longer than two years from the date the internship is completed.
(c)
Student Internship Programs.
(1)
Texas colleges of pharmacy internship programs.
(A)
The board shall review for approval Texas colleges of pharmacy
internship programs on or before September 1 of each fiscal year. The purpose
of the board review will be to determine if such internship programs demonstrate
that the competency objectives listed in subsection (a) of this section are
capable of being met by each student-intern completing the internship. The
board reserves the right to set conditions relating to the approval of such
programs.
(B)
The Texas colleges of pharmacy shall determine through
examinations that each student-intern completing the college internship program
meets the competency objectives listed in subsection (a) of this section.
(C)
Internship experience shall be gained under:
(i)
a pharmacist licensed by the board and approved as a preceptor
by the board;
(ii)
a pharmacist licensed in a state other than Texas when
working in a federal facility and serving as an instructor for a Texas college-based
internship program; or
(iii)
a healthcare professional preceptor.
(D)
All internship experience shall be approved by the board
and shall occur in sites and under conditions which teach one or more of the
competency objectives listed in subsection (a) of this section.
(E)
Prior to taking the licensure examination any applicant
participating in a Texas college-based internship shall complete the requirements
of such internship.
(F)
Pharmacist-interns completing a board-approved Texas college-based
structured internship will be awarded 1,500 hours of internship experience,
or the number of hours actually obtained if greater than 1,500. No credit
shall be awarded for didactic experience.
(G)
No more than 300 hours of the required 1,500 hours may
be obtained under a preceptor that is a healthcare professional.
(2)
Internship experience acquired by student-interns not in
a Texas College of Pharmacy Internship Program.
(A)
A person may be designated a student-intern provided he/she
meets all of the following requirements:
(i)
has made application to the board;
(ii)
is enrolled in the professional sequence of a college
of pharmacy whose professional degree program has been accredited by ACPE
and approved by the board;
(iii)
has successfully completed the first professional year
and a minimum of 30 credit hours of work towards a professional degree in
pharmacy; and
(iv)
has met all requirements necessary in order for the Board
to access the criminal history records information, including submitting fingerprint
information and being responsible for all associated costs.
(B)
The terms of the student internship shall be as follows.
(i)
The internship shall be gained concurrent with college
attendance, which may include:
(I)
partial semester breaks such as spring breaks;
(II)
between semesters; and
(III)
whole semester breaks provided the student-intern attended
the college in the immediate preceding semester and is scheduled with the
college to attend in the immediate subsequent semester.
(ii)
The student internship shall be board-approved and gained
in a pharmacy licensed by the board, or a federal government pharmacy participating
in a board-approved internship program.
(iii)
The student internship shall be in the presence of and
under the direct supervision of a board-approved preceptor who is licensed
by the board.
(C)
None of the internship hours acquired may be substituted
for any of the hours required in the Texas college of pharmacy internship
program.
(3)
Expiration date for student-intern designation. The student-internship
remains in effect until the earlier of the following occurs:
(A)
the student-intern voluntarily or involuntarily ceases
enrollment in a college of pharmacy whose professional degree program has
been accredited by ACPE and approved by the board;
(B)
the failure of the student-intern to take the NAPLEX and
Texas Jurisprudence Examinations within three calendar months after graduation;
(C)
upon receipt of the results of the NAPLEX and Texas Jurisprudence
Examinations specified in this section.
(d)
Extended-internship program.
(1)
A person may be designated an extended-intern provided
he/she has made application to the board and met one of the following requirements:
(A)
passed NAPLEX and the Texas Pharmacy Jurisprudence Examination
but lacks the required number of internship for licensure;
(B)
applied to the board to take the NAPLEX and Texas Jurisprudence
Examinations within three calendar months after graduation and has:
(i)
graduated and received a professional degree from a college
of pharmacy the professional degree program of which has been accredited by
ACPE and approved by the board; or
(ii)
completed all of the requirements for graduation and receipt
of a professional degree from a college of pharmacy the professional degree
program of which has been accredited by ACPE and approved by the board; or
(C)
applied to the board to take the NAPLEX and Texas Jurisprudence
Examinations within three calendar months after obtaining full certification
from the Foreign Pharmacy Graduate Equivalency Commission;
(D)
applied to the board for re-issuance of a pharmacist license
which has expired for more than two years but less than ten years and has
successfully passed the Texas pharmacy jurisprudence examination, but lacks
the required number of hours of internship or continuing education required
for licensure; or
(E)
been ordered by the Board to complete an internship.
(2)
In addition to meeting one of the requirements in paragraph
(1) of this subsection, an applicant for an extended-internship must meet
all requirements necessary in order for the Board to access the criminal history
records information, including submitting fingerprint information and being
responsible for all associated costs.
(3)
The terms of the extended-internship shall be as follows.
(A)
The extended-internship shall be board-approved and gained
in a pharmacy licensed by the board, or a federal government pharmacy participating
in a board-approved internship program.
(B)
The extended-internship shall be in the presence of and
under the direct supervision of a board-approved preceptor who is licensed
by the board.
(4)
The extended internship remains in effect until the earlier
of the following occurs:
(A)
the failure of the extended-intern to take the NAPLEX and
Texas Jurisprudence Examinations within three calendar months after graduation
or Foreign Pharmacy Graduate Equivalency Commission (FPGEC) certification;
(B)
the failure of the extended-intern to pass the NAPLEX and
Texas Jurisprudence Examinations specified in this section; or
(C)
the failure of the extended-intern to complete the requirements
for licensure within two years after passing the required examination(s).
(5)
An applicant for licensure who has completed less than
500 hours of internship at the time of application shall complete the remainder
of the 1,500 hours of internship and have the preceptor certify that the applicant
has met the objectives listed in subsection (a) of this section.
(e)
Pharmacist-intern identification.
(1)
The board shall provide the pharmacist-intern written documentation
of his or her designation as a pharmacist-intern. This written documentation
serves as identification and authorization to perform the duties of a pharmacist-intern
as described in §283.5 of this title (relating to Pharmacist-Intern Duties).
(2)
Pharmacist-interns shall keep this written documentation
with them at all times they are serving as a pharmacist-intern and make it
available for inspection by board agents.
(3)
All pharmacist-interns shall wear an identification tag
or badge which bears the person's name and identifies him or her as a pharmacist-intern.
(f)
Pharmacist-intern Notification Requirement. A pharmacist-intern
shall notify the board in writing within 10 days of a change of address, giving
the old and new address.
§283.7.Examination Requirements.
Each applicant for licensure by examination shall pass the Texas Pharmacy
Jurisprudence Examination and the NAPLEX. The examination requirements shall
be as follows:
(1)
Prior to taking the required examination, the applicant
shall meet:
(A)
the educational and age requirements as set forth in §283.3
of this title (relating to Educational and Age Requirements) and
(B)
all requirements necessary in order for the Board to access
the criminal history record information, including submitting fingerprint
information and being responsible for all associated costs.
(2)
All applicants shall pass NAPLEX, which includes, at a
minimum, the following subject areas:
(A)
chemistry;
(B)
mathematics;
(C)
pharmacy;
(D)
pharmacology; and
(E)
practice of pharmacy.
(3)
Effective October 1, 1979, the following requirements apply.
(A)
To pass NAPLEX, an applicant shall make the following grades:
(i)
a minimum grade of 60 on chemistry, mathematics, pharmacy,
and pharmacology test;
(ii)
a minimum grade of 75 on the practice of pharmacy test;
and
(iii)
a minimum average grade of 75 on the NAPLEX.
(B)
Should the applicant fail to achieve a minimum grade of
60 in any of the tests set out in paragraph (2)(A)-(D) of this section or
fail to achieve a minimum grade of 75 in the practice of pharmacy test or
fail to achieve a minimum average grade of 75 in the NAPLEX, such applicant,
in order to be licensed, is required to retake all tests until such time as
the minimum average grades are achieved.
(4)
Effective June 1, 1986, the following requirements apply.
(A)
To pass the NAPLEX, an applicant shall make a minimum average
grade of 75.
(B)
Should the applicant fail to achieve a minimum average
grade of 75 in the NAPLEX, such applicant, in order to be licensed, shall
retake the NAPLEX, as specified in §283.11 of this title (relating to
Examination Retake Requirements) until such time as a minimum average grade
of 75 is achieved.
(5)
To pass the Texas Pharmacy Jurisprudence Examination, an
applicant shall make a minimum grade of 75. Should the applicant fail to achieve
a minimum grade of 75 on the Texas Pharmacy Jurisprudence Examination, such
applicant, in order to be licensed, shall retake the Texas Pharmacy Jurisprudence
Examination as specified in §283.11 of this title (relating to Examination
Retake Requirements) until such time as a minimum average grade of 75 is achieved.
(6)
If the applicant should fail one of the examinations, the
grade of the examination which the applicant initially passed may be used
for the purpose of licensure by examination for a period of two years from
the date of passing the initial examination.
(7)
Examination applications and fees as specified in §283.9(a)
of this title (relating to Fee Requirements for Licensure by Examination and
Reciprocity) shall be received in the board office no later than six weeks
prior to the examination date.
(8)
Each applicant for licensure by examination utilizing NAPLEX
scores transferred from another state shall meet the following requirements
for licensure in addition to the requirements set out in paragraphs (1)-(7)
of this section.
(A)
The applicant shall request NABP to transfer NAPLEX scores
to the board. Such request shall be in accordance with NABP policy.
(B)
The applicant shall pay the fee set out in §283.9
of this title (relating to Fee Requirements for Licensure by Examination and
Reciprocity).
(9)
The NAPLEX and Texas Pharmacy Jurisprudence Examination
shall be administered in compliance with the Americans with Disabilities Act
of 1990 (42 U.S.C. Section 12101 et seq.) and in accordance with NABP policy.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604275
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 305-8028
Subchapter A. ALL CLASSES OF PHARMACIES
22 TAC §291.6
The Texas State Board of Pharmacy adopts amendments to §291.6
concerning Pharmacy License Fees. The amendments are adopted without changes
to the proposed text as published in the June 23, 2006, issue of the
The amendments decrease pharmacy license fees based on revenue projections.
No comments were received.
The amendments are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code) The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604277
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: November 1, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 305-8028
22 TAC §291.28
The Texas State Board of Pharmacy adopts new §291.28,
concerning Patient Access to Confidential Records. The new rule is adopted
with changes to the proposed text as published in the June 23, 2006, issue
of the
Texas Register
(31 TexReg 5007). A
grammatical error was corrected.
The new rule requires pharmacies to provide patients with their confidential
records.
Written comments were received from the National Association of Chain Drug
Stores (NACDS). NACDS stated that pharmacies may need up to two business days
to provide records maintained at the pharmacy and five business days for records
that are stored off-site. The Board disagrees with this comment and believes
that records must be made available within the timeframe stated in the proposed
rule in order to protect patient safety in a medical emergency. NACDS stated
that the fee for providing records should be $25.00 per pharmacy location.
The Board agrees with this comment, and notes that the fee is for each licensed
pharmacy as stated in the rule. NACDS also requested the Board clarify that
a pharmacy may request and receive payment before the information is provided
to the patient; or in the alternative, that a pharmacy would not be required
to provide the requested information if the patient has an unpaid balance
for previous record requests. The Board did not agree with this comment or
adopt any amendments with regard to this comment.
The new rule is adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code.
§291.28.Patient Access to Confidential Records.
(a)
Access to confidential records. A pharmacy shall comply
with the request of a patient or a patient's agent to inspect or obtain a
copy of the patient's confidential records maintained by the pharmacy, as
defined in §551.003(10) of the Act.
(b)
Form of request. The pharmacy may require a patient or
a patient's agent to make requests for confidential records in writing, provided
such a requirement has been communicated to the patient or patient's agent.
(c)
Timely action by pharmacy. The pharmacy must respond to
a request for confidential records in a timely manner.
(1)
The pharmacy must respond to a request for confidential
records no later than thirty days after receipt of the request by providing
a copy of the records or, with the consent of the patient or patient's agent,
a summary or explanation of such information. If the pharmacy is unable to
take such action within thirty days of receiving the request, the pharmacy
may extend the time for such action by no more than thirty days, provided
that:
(A)
the pharmacy provides the patient with a written statement
of the reasons for the delay and the date by which the pharmacy will respond
to the request; and
(B)
the pharmacy shall have only one such extension of time.
(2)
The pharmacy must provide confidential records as requested
by the patient or the patient's agent by either:
(A)
mailing a copy of the records; or
(B)
at the patient's request, arranging for a convenient time
and place for the individual to inspect or obtain a copy of the records.
(3)
Access to confidential records may be expedited at the
request of the patient or the patient's agent if there is a medical emergency.
The pharmacy must respond to a request for expedited access to confidential
records within 24 hours if the records are maintained at the pharmacy or within
72 hours if the records are stored off-site. The pharmacy may charge a reasonable
fee, in addition to the fees outlined in subsection (d) of this section, of
no more than $25.00 for expediting a request for access to confidential records.
(d)
Fees. The pharmacy may charge a reasonable, cost-based
fee for providing a copy of confidential records requested by a patient or
a patient's agent or, with the consent of the patient or patient's agent,
a summary or explanation of such information.
(1)
A reasonable fee shall be a charge of no more than $25.00
for the first twenty pages and $0.50 per page for every page thereafter. A
reasonable fee shall include only the cost of:
(A)
copying, including the cost of supplies for and labor of
copying;
(B)
postage, when the individual has requested the records
be mailed; and
(C)
preparing an explanation or summary of the protected health
information, if appropriate and consented to by the patient or patient's agent.
(2)
If an affidavit is requested certifying that the information
is a true and correct copy of the records, a reasonable fee of no more than
$15.00 may be charged for executing the affidavit.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604274
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: September 3, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 305-8028
22 TAC §295.5
The Texas State Board of Pharmacy adopts amendments to §295.5
concerning Pharmacist License or Renewal Fees. The amendments are adopted
without changes to the proposed text as published in the June 23, 2006, issue
of the
Texas Register
, (31 TexReg 5008).
The amendments decrease pharmacist license fees based on revenue projections.
No comments were received.
The amendments are adopted under sections 551.002, and 554.051
of the Texas Pharmacy Act (Chapters 551-566 and 568-569, Texas Occupations
Code) The Board interprets section 551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets section 554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604278
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: November 1, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 305-8028
22 TAC §297.4
The Texas State Board of Pharmacy adopts amendments to §297.4
concerning Fees. The amendments are adopted with changes to the proposed text
as published in the June 23, 2006, issue of the
Texas Register
(31 TexReg 5009). A change was made to the pharmacy
technician renewal fee to correctly reflect the $2 fee decrease.
The amendments decrease pharmacy technician registration fees based on
revenue projections.
No comments were received.
The amendments are adopted under sections 551.002, and 554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code) The Board interprets section 551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets section 554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code.
§297.4.Fees.
(a)
Pharmacy technician trainee. There shall be no fee for
registration as a pharmacy technician trainee.
(b)
Pharmacy technician.
(1)
Biennial Registration. The board shall require biennial
renewal of all pharmacy technician registrations provided under Chapter 568
of the Act.
(2)
Initial Registration Fee.
(A)
The fee for initial registration shall be $54 for a two
year registration and is composed of the following fees:
(i)
$46 for processing the application and issuance of the
pharmacy technician registration as authorized by the Act, §568.005;
(ii)
a $3 surcharge to fund TexasOnline as authorized by Chapter
2054, Subchapter I, Government Code; and
(iii)
$5 surcharge to fund the Office of Patient Protection
as authorized by Chapter 101, Subchapter G, Occupations Code.
(B)
The initial registration fee shall be prorated based on
the assigned expiration date.
(3)
Renewal Fee. The fee for biennial renewal of a pharmacy
technician registration shall be $51 and is composed of the following:
(A)
$46 for processing the application and issuance of the
pharmacy technician registration as authorized by the Act, §568.005;
(B)
a $3 surcharge to fund TexasOnline as authorized by Chapter
2054, Subchapter I, Government Code; and
(C)
$2 surcharge to fund the Office of Patient Protection as
authorized by Chapter 101, Subchapter G, Occupations Code.
(c)
Duplicate or Amended Certificates. The fee for issuance
of a duplicate or amended pharmacy technician trainee registration certificate
or pharmacy technician registration renewal certificate shall be $20.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604279
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: November 1, 2006
Proposal publication date: June 23, 2006
For further information, please call: (512) 305-8028
Chapter 463.
APPLICATIONS AND EXAMINATIONS
22 TAC §463.5
The Texas State Board of Examiners of Psychologists adopts
amendments to §463.5 concerning Application File Requirements without
changes to the proposed text as published in the June 16, 2006, issue of the
The amendments are being adopted to clarify to applicants that references
submitted for the purpose of licensure cannot be by persons who are related
to the applicant within the second degree of affinity or within the second
degree by consanguinity.
The adopted amendments will help to ensure that reference letters are provided
by objective individuals.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604282
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: September 3, 2006
Proposal publication date: June 16, 2006
For further information, please call: (512) 305-7700
22 TAC §463.28
The Texas State Board of Examiners of Psychologists adopts
new rule §463.28 concerning Emergency Limited Temporary Licensure without
changes to the proposed text as published in the June 16, 2006, issue of the
The new rule is being adopted to allow the Board adjust the requirements
for limited temporary licensure for out-of-state licensees desiring to temporarily
provide psychological services in the case of a declared national disaster.
The adopted new rule will clarify emergency limited temporary licensure.
No comments were received regarding adoption of the new rule.
The new rule is adopted under Texas Occupations Code, Title 3,
Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604283
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: September 3, 2006
Proposal publication date: June 16, 2006
For further information, please call: (512) 305-7700
22 TAC §471.5
The Texas State Board of Examiners of Psychologists adopts
amendments to §471.5 concerning Updated Information Requirements without
changes to the proposed text as published in the June 16, 2006, issue of the
The amendments are being adopted to clarify the information that is needed
on the annual renewal form.
The adopted amendments will clearly enforce the rule and clarify the information
that is needed on the annual renewal form.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 14, 2006.
TRD-200604284
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: September 3, 2006
Proposal publication date: June 16, 2006
For further information, please call: (512) 305-7700
Chapter 533.
PRACTICE AND PROCEDURE
22 TAC §533.34, §533.35
The Texas Real Estate Commission (TREC) adopts amendments
to §533.34, concerning Disapproval of an Application for a License or
Registration and §533.35, concerning Revocation or Other Action against
a License or Registration. Section 533.35 is adopted with changes to the proposed
text as published in the July 7, 2006, issue of the
Texas Register
(31 TexReg 5434). Section 533.34 is adopted without
changes and will not be republished.
The amendment to §533.34 clarifies that notice of disapproval will
not be provided to a sponsoring broker of an applicant for a salesperson license
as such licenses are issued as inactive with no sponsoring broker. The amendment
to §533.35 clarifies that a hearing concerning a revocation or other
disciplinary action against a licensee will be held at a time and place designated
by the Commission except in cases involving a violation of §1101.652(a)(3)
or (b), Texas Occupations Code. In those cases, the hearing shall be held
pursuant to §1101.657(d) if the licensee requests. The difference between
the rule as proposed and the rule as adopted was the addition of a period
to correct a typographical error. The amendments are adopted in connection
with TREC's on-going review of its rules and are generally intended to update
and to clarify the rules to be consistent with Chapter 1101, Occupations Code,
and recent revisions thereto.
The reasoned justification for the amendments to the rules is consistency
with the underlying statutory requirements.
No comments were received regarding the amendments to the rules as proposed.
The amendments are adopted under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this adoption is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the adopted amendments.
§533.35.Revocation or Other Action against a License or Registration.
A license or registration issued by the Texas Real Estate Commission
may not be revoked or other action taken against the license or registration
except after notice and opportunity for hearing pursuant to statutory obligation
and these sections. If a real estate salesperson is a respondent, the commission
also will notify the salesperson's sponsoring broker of the hearing. If an
apprentice inspector or real estate inspector is a respondent, the commission
also will notify the sponsoring professional inspector of the hearing. The
hearing will be held at a time and place designated by the commission, except
as provided by §1101.657, Texas Occupations Code, for a violation of §1101.652(a)(3)
or (b). Pursuant to §1101.657, upon the written request of a respondent
licensed as a Texas real estate broker or real estate filed within five days
after receipt of the notice of hearing, the hearing will be held in the county
where the principal place of business of the respondent is maintained. If
the respondent is a licensee or registrant who does not reside within this
state, the hearing may be held in any county within this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 8, 2006.
TRD-200604075
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Effective date: August 28, 2006
Proposal publication date: July 7, 2006
For further information, please call: (512) 465-3900
Subchapter R. REAL ESTATE INSPECTORS
22 TAC §535.217
The Texas Real Estate Commission (TREC) adopts the repeal
of §535.217, concerning Dishonest Conduct as Grounds for Disciplinary
Action without changes as published in the May 19, 2006, issue of the
The reasoned justification for the repeal is clarification of inspector
standards of real estate inspector professional conduct and ethics.
No comments were received regarding the repeal as proposed.
The repeal is adopted under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this repeal is Texas Occupations Code, Chapter
1102. No other statute, code or article is affected by the repeal.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 8, 2006.
TRD-200604079
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Effective date: August 28, 2006
Proposal publication date: May 19, 2006
For further information, please call: (512) 465-3900
22 TAC §535.220
The Texas Real Estate Commission (TREC) adopts amendments
to §535.220, concerning Professional Conduct and Ethics with changes
to the proposed text as published in the May 19, 2006, issue of the
The changes to the adopted text that were not in the proposed text replace
the term "an earnest money" with "a real estate" and the last "or" with "of"
in §535.220(e)(6), and clarify subsection (e)(3), the provision addressing
referral activity relating to advertising. New subsection (e)(8) permits an
inspector to engage in legal promotional or educational activities to or with
a settlement service provider that are not conditioned on the referral of
business and permits an inspector to purchase advertising and promotion at
market rates from any person in any publication, event or media. The revisions
to the rules as adopted do not change the nature or scope so much that they
could be deemed different rules. The rules as adopted do not affect individuals
other than those contemplated by the rules as proposed. The rules as adopted
do not impose more onerous requirements that the proposed versions and do
not materially alter the issues raised in the proposed rules. Changes in the
adopted rules respond to public comments or otherwise reflect nonsubstantive
variations from the proposed rules to clarify their intent and improve style
and readability.
Section 535.220 as adopted prohibits contingency arrangements in cases
where compensation depends on specific findings or on closing or settlement;
prohibits an inspector from paying a fee to or receiving a fee from a "settlement
service provider" as defined in the rule for the referral of inspections,
for inclusion on a list of preferred providers, or for inclusion on a list
of inspectors contingent on other financial agreements; permits an inspector
to engage in legal promotional or educational activities to or with a settlement
service provider that are not conditioned on the referral of business; permits
an inspector to purchase advertising and promotion at market rates from any
person in any publication, event or media; prohibits an inspector from accepting
a fee for referring services that are not settlement services or other products
to the inspector's client without the consent of the inspector's client; clarifies
that an inspector may pay or receive a fee for services actually rendered;
prohibits an inspector from conducting repair for a fee of any systems or
components of property covered by the Standards of Practice on which the inspector
has performed an inspection under a real estate contract, lease, or exchange
of real property within 12 months of the date of the inspection; and prohibits
an inspector from disclosing inspection results or client information without
prior approval from the client, except for observed immediate safety hazards
to occupants exposed to such hazards.
There were three comments to the amendments as proposed. One of the commenters
was the Texas Association of Realtors (TAR). The first commenter approved
of the revisions to §535.220. The second commenter pointed out that the
term "earnest money contract" is not generally used to refer to the standard
real estate contracts promulgated by the Commission. The Commission agrees
with the commenter and has changed §535.220 as described above. TAR suggested
that the Commission add subsection (e)(8) as more fully described above. The
Commission agrees with TAR.
The reasoned justification for the amendments is full transparency and
disclosure of the cost of obtaining a real estate inspection in connection
with the purchase or sale of real property.
The amendments are adopted under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this adoption is Texas Occupations Code, Chapter
1102. No other statute, code or article is affected by the adopted amendments.
§535.220.Professional Conduct and Ethics.
(a)
The responsibility of those persons who engage in the business
of performing independent inspections of improvements in real estate transactions
imposes integrity beyond that of a person involved in ordinary commerce. Each
inspector must maintain a high standard of professionalism, independence,
objectivity and fairness while performing inspections in a real estate transaction.
Each inspector licensee must also uphold, maintain, and improve the integrity,
reputation, and practice of the home inspection profession.
(b)
The relationship between an inspector and a client should
at a minimum meet the following guidelines.
(1)
In accepting employment as an inspector, the inspector
should protect and promote the interest of his client to the best of his ability
and knowledge, recognizing that the client has placed his trust and confidence
in the inspector.
(2)
In the interest of his client and his profession, the inspector
should endeavor always to maintain and increase his level of knowledge regarding
new developments in the field of inspection.
(3)
The inspector should conduct his business in a manner that
will assure his client of the inspector's independence from outside influence
and interests that might compromise his ability to render a fair and impartial
opinion regarding any inspection performed.
(c)
The relationship between an inspector and the public should
at a minimum meet the following guidelines.
(1)
The inspector should deal with the general public at all
times and in all manners in a method that is conducive to the promotion of
professionalism, independence and fairness to himself, his business and the
inspection industry.
(2)
The inspector should attempt to assist the general public
in recognizing and understanding the need for inspections, whether the inspector
is selected to perform such inspection or not.
(3)
The inspector accepts the duty of protecting the public
against fraud, misrepresentation or unethical practices in the field of real
estate inspections.
(d)
The relationship of the inspector with another inspector
should at a minimum meet the following guidelines.
(1)
The inspector should bind himself to the duty of maintaining
fairness and integrity in all dealings with other inspectors and other persons
performing real estate inspections.
(2)
The inspector should cooperate with other inspectors to
insure the continued promotion of the high standards of the real estate inspection
profession and pledges himself to the continued pursuit of increasing competence,
fairness, education and knowledge necessary to achieve the confidence of the
public.
(3)
If an inspector has knowledge of a possible violation of
the rules of the Texas Real Estate Commission or Texas Occupations Code, Chapter
1102, the inspector should report the possible violation to the Texas Real
Estate Commission.
(e)
An inspector shall comply with the following requirements.
(1)
An inspector shall not inspect properties under contingent
arrangements whereby any compensation or future referrals are dependent on
reported findings or on the closing or settlement of a property.
(2)
In this section "settlement service" means any service
provided in connection with a prospective or actual settlement, and "settlement
service provider" includes, but is not limited to, any one or more of the
following:
(A)
Federally related mortgage loan originator;
(B)
Mortgage broker;
(C)
Title service provider;
(D)
Attorney;
(E)
A person who prepares documents, including notarization,
delivery, and recordation;
(F)
Appraiser;
(G)
Inspector;
(H)
Settlement agent;
(I)
A person who provides mortgage insurance services;
(J)
A person who provides services involving hazard, flood,
or other casualty insurance or homeowner's warranties;
(K)
Real estate agent or broker; and
(L)
A person who provides any other services for which a settlement
service provider requires a borrower or seller to pay.
(3)
An inspector shall not pay or receive a fee or other valuable
consideration to or from any other settlement service provider for, but not
limited to, the following:
(A)
the referral of inspections;
(B)
inclusion on a list of inspectors, preferred providers,
or similar arrangements; or
(C)
inclusion on lists of inspectors contingent on other financial
agreements.
(4)
An inspector shall not receive a fee or other valuable
consideration, directly or indirectly, for referring services that are not
settlement services or other products to the inspector's client without the
client's consent.
(5)
This section does not prohibit an inspector from paying
or receiving a fee or other valuable consideration, such as to or from a contractor,
for services actually rendered.
(6)
An inspector shall not accept employment to repair, replace,
maintain or upgrade systems or components of property covered by the Standards
of Practice under this Subchapter on which the inspector has performed an
inspection under a real estate contract, lease, or exchange of real property
within 12 months of the date of the inspection.
(7)
Inspectors shall not disclose inspection results or client
information without prior approval from the client. Inspectors, at their discretion,
may disclose observed immediate safety hazards to occupants exposed to such
hazards when feasible.
(8)
This subsection does not prohibit an inspector from:
(A)
engaging in legal promotional or educational activities
to or with settlement service providers that are not conditioned on the referral
of business; or
(B)
purchasing advertising and promoting the inspector at market
rates from any person in any publication, event or media.
(f)
The inspector should make a reasonable attempt to cooperate
with other professionals and related tradespersons at all times and in all
manners in a method that is conducive to the promotion of professionalism,
independence and fairness to himself, his business, and the inspection industry.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 8, 2006.
TRD-200604080
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Effective date: August 28, 2006
Proposal publication date: May 19, 2006
For further information, please call: (512) 465-3900
Subchapter B. GENERAL PROCEDURES IN A CONTESTED CASE
Subchapter C. DISCIPLINARY GUIDELINES
Subchapter C. RULEMAKING
Subchapter D. RULEMAKING
Subchapter D. MISCELLANEOUS
Chapter 283.
LICENSING REQUIREMENTS FOR PHARMACISTS
Chapter 291.
PHARMACIES
Chapter 295.
PHARMACISTS
Chapter 297.
PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES
Part 21.
TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
Chapter 471.
RENEWALS
Part 23.
TEXAS REAL ESTATE COMMISSION
Chapter 535.
GENERAL PROVISIONS
Chapter 543.
RULES RELATING TO THE PROVISIONS OF THE TEXAS TIMESHARE ACT