Part 15.
TEXAS STATE BOARD OF PHARMACY
Chapter 281.
ADMINISTRATIVE PRACTICE AND PROCEDURES
Subchapter B. GENERAL PROCEDURES IN A CONTESTED CASE
22 TAC §281.20
The Texas State Board of Pharmacy proposes new §281.20,
concerning Criminal Convictions. The rule, if adopted, will clarify the reasons
a particular crime is considered to relate to the practice of pharmacy and
specify other criteria that affect the decisions of the Board in compliance
with §53.025 of the Occupations Code.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be no fiscal
implications for state government as a result of enforcing or administering
the rule. There are no anticipated fiscal implications for local government.
Ms. Dodson has determined that, for each year of the first five-year period
the rule will be in effect, the public benefit anticipated as a result of
enforcing the rule will be the establishment of standards for the handling
of criminal convictions. There is no fiscal impact anticipated for small or
large businesses or to other entities who are required to comply with this
section.
Written comments on the new section may be submitted to Gay Dodson, R.Ph.,
Executive Director/Secretary, Texas State Board of Pharmacy, 333 Guadalupe
Street, Box 21, Austin, Texas, 78701-3942, FAX (512) 305-8082. Comments must
be received by 5 p.m., August 1, 2003.
The new section is proposed under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code) and §53.025 of the 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 Board interprets §53.025 as authorizing the
agency to issue guidelines relating to decisions involving criminal convictions.
The statutes affected by this rule: Chapters 53, 551 - 566, and 568 - 569,
Texas Occupations Code.
§281.20.Criminal Convictions.
(a)
The purpose of this section is to establish guidelines
and criteria on the eligibility of persons with criminal backgrounds to obtain
a license from the board and on the disciplinary actions taken by the board.
(b)
The board may suspend, revoke, or impose other authorized
disciplinary action on a current license, disqualify a person from receiving
a license, or deny to a person the opportunity to be examined for a license
because of a person's conviction of a crime that directly relates to the duties
and responsibilities of a licensee or of an owner of a pharmacy. This subsection
applies to persons who are not imprisoned at the time the board considers
the conviction.
(c)
The board shall revoke a license upon the imprisonment
of the licensee or the owner of a pharmacy following a felony conviction or
revocation of felony community supervision, parole, or mandatory supervision.
(d)
A person in prison is not eligible for a license.
(e)
An applicant for a license from the board shall disclose
in writing to the board any conviction against him or her at the time of application.
A current licensee shall disclose in writing to the board any conviction against
him or her at the time of renewal.
(f)
In considering whether a criminal conviction directly relates
to the occupation of a licensee 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 to engage in the occupation of the licensee or the operation of
a pharmacy.
(3)
the extent to which a license might afford the licensee
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.
(g)
In reaching a decision regarding the type of disciplinary
sanction to impose on license, the board shall also determine the person's
fitness to perform the duties and discharge the responsibilities of a licensee
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 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 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 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; 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. The commission
of each indicates an inability or a tendency for the person to be unable to
perform or to be unfit for licensure, 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 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 and
other violations of the Pharmacy Act;
(2)
deceptive business practices;
(3)
medicare or medicaid fraud;
(4)
a misdemeanor or felony offense 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, including violations of
the Penal Code, Titles 4, 5, 7, 9, and 10, which indicate an inability or
tendency for the person to be unable to perform as a licensee or to be unfit
for licensure, if action by the board will promote the intent of the Pharmacy
Act, board rules including this chapter, and Occupations Code, Chapter 53.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 11, 2003.
TRD-200303513
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 27, 2003
For further information, please call: (512) 305-8028
22 TAC §281.22
The Texas State Board of Pharmacy proposes amendments to §281.22,
concerning Informal Disposition of a Contested Case. These amendments, if
adopted, will allow the Board to informally dispose of a case by entering
a default order without the necessity of proceeding to a hearing at the State
Office of Administrative Hearings (SOAH). A default order is only applicable
when the licensee fails to respond to the notice of allegations by the Board.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be no fiscal
implications for state government as a result of enforcing or administering
the rule. There are no anticipated fiscal implications for local government.
Ms. Dodson has determined that, for each year of the first five-year period
the rule will be in effect, the public benefit anticipated as a result of
enforcing the rule will be the establishment of standards for handling default
cases against licensees, allowing the Board to process disciplinary cases
in a more efficient and timely manner. There is no fiscal impact anticipated
for small or large businesses or to other entities who are required to comply
with this section.
Written comments on the amendments may be submitted to Gay Dodson, R.Ph.,
Executive Director/Secretary, Texas State Board of Pharmacy, 333 Guadalupe
Street, Box 21, Austin, Texas, 78701-3942, FAX (512) 305-8082. Comments must
be received by 5 p.m., August 1, 2003.
The amendments are proposed 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, as authorizing the agency to
adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this proposal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
§281.22.Informal Disposition of a Contested Case.
(a)
(No change.)
(b)
Prior to the imposition of disciplinary sanction(s) against
a license,
the board shall provide the licensee with written notice of
the matters asserted, including:
[
(1)
a statement of the legal authority, jurisdiction,
and alleged conduct under which the enforcement action is based, with a reference
to the particular section(s) of the statutes and rules involved;
(2)
an offer for the licensee to attend an
informal conference at a specified time and place and show compliance with
all requirements of law, in accordance with §2001.054(c) of the Administrative
Procedure Act;
(3)
a statement that the licensee has an opportunity
for a hearing before the State Office of Administrative Hearings on the allegations;
and
(4)
the following statement in capital letters
in 12 point boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER
PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING, WILL RESULT
IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION MADE
AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT. The notice shall be served
by delivering a copy to the licensee in person, by courier receipted delivery,
by first class mail, or by certified or registered mail, return receipt requested
to the licensee's last known address of record as shown by agency records.
(c)
The licensee shall respond by either personal
appearance at the informal conference or in writing no later than the date
of the informal conference. If the licensee chooses to respond in writing,
the response shall admit or deny each of the allegations. If the licensee
intends to deny only a part of an allegation, the licensee shall specify so
much of it is true and shall deny only the remainder. The response shall also
include any other matter, whether of law or fact, upon which the licensee
intends to rely for his or her defense. If the licensee fails to respond to
the notice specified in subsection (b) of this section, the matter will be
considered as a default case and the licensee will be deemed to have:
(1)
admitted all the factual allegations in the notice specified
in subsection (b) of this section;
(2)
waived the opportunity to show compliance with the law;
(3)
waived notice of a hearing;
(4)
waived the opportunity for a hearing on the allegations;
and
(5)
waived objection to the recommended sanctions made at the
informal conference.
(d)
The informal conference panel may recommend
that the board enter a default order, based upon the allegations set out in
the notice specified in subsection (b) of this section, adopting the recommended
sanctions made at the informal conference. Upon consideration of the case,
the Board may enter a default order under §2001.056 of the Administrative
Procedure Act or direct that the case be set for a hearing at the State Office
of Administrative Hearings.
(e)
Any default judgment granted under this
section will be entered on the basis of the factual allegations in the notice
specified in subsection (b) off this section, and upon proof of proper notice
to the licensee's address of record. For purposes of this section, proper
notice means notice sufficient to meet the provisions of §2001.054 of
the Administrative Procedure Act and §281.25 of these rules.
(f)
A motion for rehearing which requests
that the Board vacate its default order under this section shall be granted
if the motion presents convincing evidence that the failure to respond to
the notice specified in subsection (b) of this section was not intentional
or the result of conscious indifference, but due to accident or mistake, provided
that the licensee has a meritorious defense to the factual allegations contained
in the notice specified in subsection (b) of this section and the granting
thereof will not result in delay or injury to the public or the Board.
(g)
[
(h)
[
(i)
[
(j)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 11, 2003.
TRD-200303514
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 27, 2003
For further information, please call: (512) 305-8028
22 TAC §283.6
The Texas State Board of Pharmacy proposes amendments to §283.6,
concerning Preceptor Requirements. These amendments, if adopted, will change
the initial and continuing education requirements for a preceptor to allow
courses approved by the colleges of pharmacy as well as courses developed
by the colleges.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be no fiscal
implications for state government as a result of enforcing or administering
the rule. There are no anticipated fiscal implications for local government.
Ms. Dodson has determined that, for each year of the first five-year period
the rule will be in effect, the public benefit anticipated as a result of
enforcing the rule will be the establishment of standards for preceptor training.
There is no fiscal impact anticipated for small or large businesses or to
other entities who are required to comply with this section.
Written comments on the amendments may be submitted to Gay Dodson, R.Ph.,
Executive Director/Secretary, Texas State Board of Pharmacy, 333 Guadalupe
Street, Box 21, Austin, Texas, 78701-3942, FAX (512) 305-8082. Comments must
be received by 5 p.m., August 1, 2003.
The amendments are proposed 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 as authorizing the agency to
adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this proposal: Chapters 551 - 566 and 568 - 569,
Texas Occupations Code.
§283.6.Preceptor Requirements.
(a) - (b)
(No change.)
(c)
For certification as a preceptor a pharmacist must:
(1)
(No change.)
(2)
have completed:
(A)
for initial certification, three hours of preceptor training
provided by an ACPE approved provider within the previous two years. Such
training shall be:
(i)
developed by a Texas college of pharmacy [
(ii)
approved by:
(I)
a committee comprised of the Texas colleges of pharmacy;
or
(II)
the board; or
(B)
to continue certification, three hours of preceptor training
provided by an ACPE approved provider within the preceptor pharmacist's current
license renewal period. Such training shall be:
(i)
developed by a Texas college of pharmacy [
(ii)
approved by:
(I)
a committee comprised of the Texas colleges of pharmacy;
or
(II)
the board; and
(3)
meet the requirements of subsection (f) of this section.
[(d)
Beginning July 1, 2002, approval and
certification as a preceptor shall coincide with the preceptor pharmacist's
license renewal period. For preceptors whose preceptor certification expires
on or after July 1, 2002, the Board shall extend their preceptor expiration
date to the next expiration date of the preceptor pharmacist's license.]
(d)
[
(e)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 11, 2003.
TRD-200303515
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 27, 2003
For further information, please call: (512) 305-8028
Subchapter B. COMMUNITY PHARMACY (CLASS A)
the licensee shall be offered
an opportunity to attend an informal conference and show compliance with all
requirements of law, in accordance with §2001.054(c) of the Administrative
Procedure Act.
]
(c)
] Informal conferences shall
be attended by the executive director/secretary or designated representative,
legal counsel of the agency or an attorney employed by the office of the attorney
general, and other representative(s) of the agency as the executive director/secretary
and legal counsel may deem necessary for proper conduct of the conference.
The licensee and/or the licensee's authorized representative(s) may attend
the informal conference and shall be provided an opportunity to be heard.
(d)
] In any case where charges are
based upon information provided by a person (complainant) who filed a complaint
with the board, the complainant may attend the informal conference, unless
the proceedings are confidential under §564.002 and §564.003 of
the Texas Pharmacy Act or other applicable law. A complainant who chooses
to attend an informal conference shall be provided an opportunity to be heard
with regard to charges based upon the information provided by the complainant.
Nothing herein requires a complainant to attend an informal conference.
(e)
] Informal conferences shall
not be deemed meetings of the board and no formal record of the proceedings
at such conferences shall be made or maintained.
(f)
] Any proposed consent order
shall be presented to the board
in open meeting
for its review.
At the conclusion of its review, the board shall approve or disapprove the
proposed consent order. Should the board approve the proposed consent order,
the appropriate notation shall be made in minutes of the board and the proposed
consent order shall be entered as an official action of the board. Should
the board disapprove the proposed consent order, the matter shall be scheduled
for public hearing.
Chapter 283.
LICENSING REQUIREMENTS FOR PHARMACISTS
and provided by an ACPE approved provider within the previous two years
];
or
and provided by an ACPE approved provider within the preceptor pharmacist's
current license renewal period
];
or
[
and
]
(e)
] A preceptor may supervise only
one pharmacist-intern at any given time. Texas Colleges of Pharmacy may request
a different preceptor to pharmacist-intern ratio during the board's annual
review and approval of their college based, structured internship program.
Any such ratio shall apply only to the internship experience acquired as a
part of the college based, structured internship program.
(f)
] No pharmacist may serve as
a preceptor if his or her license to practice pharmacy has been the subject
of an order of the board imposing any penalty set out in the Act, §565.051,
during the period he or she is serving as a preceptor or within the three-year
period immediately preceding application for approval as a preceptor. Provided,
however, a pharmacist who has been the subject of such an order of the board
may petition the board, in writing, for approval to act as a preceptor.
Chapter 291.
PHARMACIES