CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES; REINSTATEMENT OF LICENSE

State Codes and Statutes

Statutes > Texas > Occupations-code > Title-3-health-professions > Chapter-565-disciplinary-actions-and-procedures-reinstatement-of-license

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE J. PHARMACY AND PHARMACISTS

CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES; REINSTATEMENT

OF LICENSE

SUBCHAPTER A. GROUNDS FOR DISCIPLINE OF APPLICANT OR LICENSE

HOLDER

Sec. 565.001. APPLICANT FOR OR HOLDER OF LICENSE TO PRACTICE

PHARMACY. (a) The board may discipline an applicant for or the

holder of a current or expired license to practice pharmacy if

the board finds that the applicant or license holder has:

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

subtitle;

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

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

(4) developed an incapacity that prevents the applicant or

license holder from practicing pharmacy with reasonable skill,

competence, and safety to the public;

(5) engaged in fraud, deceit, or misrepresentation, as defined

by board rule, in practicing pharmacy or in seeking a license to

practice pharmacy;

(6) been convicted of or placed on deferred adjudication

community supervision or deferred disposition or the applicable

federal equivalent for:

(A) a misdemeanor:

(i) involving moral turpitude; or

(ii) under Chapter 481 or 483, Health and Safety Code, or the

Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. Section 801 et seq.); or

(B) a felony;

(7) used alcohol or drugs in an intemperate manner that, in the

board's opinion, could endanger a patient's life;

(8) failed to maintain records required by this subtitle or

failed to maintain complete and accurate records of purchases or

disposals of drugs listed in Chapter 481 or 483, Health and

Safety Code, or the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(9) violated any provision of:

(A) Chapter 481 or 483, Health and Safety Code, or the

Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. Section 801 et seq.), or rules relating to one of those

laws; or

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

Safety Code;

(10) aided or abetted an unlicensed person in the practice of

pharmacy if the pharmacist knew or reasonably should have known

that the person was unlicensed at the time;

(11) refused entry into a pharmacy for an inspection authorized

by this subtitle if the pharmacist received notification from

which the pharmacist knew or reasonably should have known that

the attempted inspection was authorized;

(12) violated any pharmacy or drug statute or rule of this

state, another state, or the United States;

(13) been negligent in the practice of pharmacy;

(14) failed to submit to an examination after hearing and being

ordered to do so by the board under Section 565.052;

(15) dispensed a prescription drug while acting outside the

usual course and scope of professional practice;

(16) been disciplined by the regulatory board of another state

for conduct substantially equivalent to conduct described under

this subsection;

(17) violated a disciplinary order, including a confidential

order or contract under the program to aid impaired pharmacists

and pharmacy students under Chapter 564;

(18) failed to adequately supervise a task delegated to a

pharmacy technician;

(19) inappropriately delegated a task delegated to a pharmacy

technician; or

(20) been responsible for a drug audit shortage.

(b) A certified copy of the record of the state taking action

described by Subsection (a)(16) is conclusive evidence of the

action taken by that state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1254, Sec. 9, eff. Sept. 1,

2001; Acts 2001, 77th Leg., ch. 1463, Sec. 3, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 25, eff. September 1, 2005.

Sec. 565.002. APPLICANT FOR OR HOLDER OF PHARMACY LICENSE. (a)

The board may discipline an applicant for or the holder of a

pharmacy license, including a Class E pharmacy license subject to

Section 565.003(b), if the board finds that the applicant or

license holder has:

(1) been convicted of or placed on deferred adjudication

community supervision or deferred disposition or the applicable

federal equivalent for:

(A) a misdemeanor:

(i) involving moral turpitude; or

(ii) under Chapter 481 or 483, Health and Safety Code, or the

Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. Section 801 et seq.); or

(B) a felony;

(2) advertised a prescription drug or device in a deceitful,

misleading, or fraudulent manner;

(3) violated any provision of this subtitle or any rule adopted

under this subtitle or that an owner or employee of a pharmacy

has violated any provision of this subtitle or any rule adopted

under this subtitle;

(4) sold without legal authorization a prescription drug or

device to a person other than:

(A) a pharmacy licensed by the board;

(B) a practitioner;

lawful research, teaching, or testing, and not for resale;

(D) a manufacturer or wholesaler licensed by the commissioner of

public health as required by Chapter 431, Health and Safety Code;

(E) a carrier or warehouseman;

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

pharmacy;

(6) sold an adulterated or misbranded prescription or

nonprescription drug;

(7) failed to engage in or ceased to engage in the business

described in the application for a license;

(8) failed to maintain records as required by this subtitle,

Chapter 481 or 483, Health and Safety Code, the Comprehensive

Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section

801 et seq.), or any rule adopted under this subtitle or Chapter

483, Health and Safety Code;

(9) failed to establish and maintain effective controls against

diversion of prescription drugs into other than a legitimate

medical, scientific, or industrial channel as provided by this

subtitle, another state statute or rule, or a federal statute or

rule;

(10) engaged in fraud, deceit, or misrepresentation as defined

by board rule in operating a pharmacy or in applying for a

license to operate a pharmacy;

(11) violated a disciplinary order;

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

(13) been disciplined by the regulatory board of another state

for conduct substantially equivalent to conduct described under

this subsection.

(b) This subsection applies only to an applicant or license

holder that is a legal business entity. The board may discipline

an applicant for or the holder of a pharmacy license, including a

Class E pharmacy license, if the board finds that a managing

officer of the applicant or license holder has been convicted of

or placed on deferred adjudication community supervision or

deferred disposition or the applicable federal equivalent for:

(1) a misdemeanor:

(A) involving moral turpitude; or

(B) under Chapter 481 or 483, Health and Safety Code, or the

Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. Section 801 et seq.); or

(2) a felony.

described by Subsection (a)(13) is conclusive evidence of the

action taken by that state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 26, eff. September 1, 2005.

Sec. 565.003. ADDITIONAL GROUNDS FOR DISCIPLINE REGARDING

APPLICANT FOR OR HOLDER OF CLASS E PHARMACY LICENSE. (a)

Repealed by Acts 2005, 79th Leg., Ch. 1345, Sec. 45, eff.

September 1, 2005.

(b) Unless compliance would violate the pharmacy or drug

statutes or rules in the state in which the pharmacy is located

the board may discipline an applicant for or the holder of a

Class E pharmacy license if the board finds that the applicant or

license holder has failed to comply with:

(1) Section 481.074 or 481.075, Health and Safety Code;

(2) Texas substitution requirements regarding:

(A) the practitioner's directions concerning generic

substitution;

(B) the patient's right to refuse generic substitution; or

substitution;

(3) any board rule relating to providing drug information to the

patient or the patient's agent in written form or by telephone;

(4) any board rule adopted under Section 554.051(a) and

determined by the board to be applicable under Section

554.051(b).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 45, eff. September 1, 2005.

SUBCHAPTER B. DISCIPLINARY ACTIONS AND PROCEDURES

Sec. 565.051. DISCIPLINE AUTHORIZED. On a determination that a

ground for discipline exists under Subchapter A, or that a

violation of this subtitle or a rule adopted under this subtitle

has been committed by a license holder or applicant for a license

or renewal of a license, the board may:

(1) suspend the person's license;

(2) revoke the person's license;

(3) restrict the person's license to prohibit the person from

performing certain acts or from practicing pharmacy or operating

a pharmacy in a particular manner for a term and under conditions

determined by the board;

(4) impose an administrative penalty under Chapter 566;

(5) refuse to issue or renew the person's license;

(6) place the offender's license on probation and supervision by

the board for a period determined by the board and impose a

requirement that the license holder:

(A) report regularly to the board on matters that are the basis

of the probation;

(B) limit practice to the areas prescribed by the board;

holder attains a degree of skill satisfactory to the board in

each area that is the basis of the probation; or

(D) pay the board a probation fee to defray the costs of

monitoring the license holder during the period of probation;

(7) reprimand the person;

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

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

subsection.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 27, eff. September 1, 2005.

Sec. 565.052. SUBMISSION TO MENTAL OR PHYSICAL EXAMINATION. (a)

In enforcing Section 565.001(a)(4), the board on probable cause

shall request a pharmacist, pharmacist applicant,

pharmacist-intern, or pharmacist-intern applicant to submit to a

mental or physical examination by a physician or other health

care professional designated by the board.

(b) If the pharmacist, pharmacist applicant, pharmacist-intern,

or pharmacist-intern applicant refuses to submit to the

examination, the board shall issue an order requiring the

pharmacist, pharmacist applicant, pharmacist-intern, or

pharmacist-intern applicant to show cause why the pharmacist,

pharmacist applicant, pharmacist-intern, or pharmacist-intern

applicant will not submit to the examination and shall schedule a

hearing on the order not later than the 30th day after the date

notice is served on the pharmacist, pharmacist applicant,

pharmacist-intern, or pharmacist-intern applicant. The

pharmacist, pharmacist applicant, pharmacist-intern, or

pharmacist-intern applicant shall be notified by either personal

service or certified mail with return receipt requested.

pharmacist-intern, or pharmacist-intern applicant and an attorney

are entitled to present testimony or other evidence to show why

the pharmacist, pharmacist applicant, pharmacist-intern, or

pharmacist intern-applicant should not be required to submit to

the examination.

(d) After the hearing, the board shall by order require the

pharmacist, pharmacist applicant, pharmacist-intern, or

pharmacist-intern applicant to submit to the examination or

withdraw the request for examination.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.053. DISCIPLINE OF CLASS E PHARMACY; NOTICE TO RESIDENT

STATE. The board shall give notice of a disciplinary action by

the board against the holder of a Class E pharmacy license to the

regulatory or licensing agency of the state in which the pharmacy

is located.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 28, eff. September 1, 2005.

Sec. 565.054. SERVICE OF PROCESS ON CLASS E PHARMACY. (a)

Service of process on a Class E pharmacy under Section 565.058 or

566.051 or for disciplinary action taken by the board under

Section 565.061 shall be on the owner and pharmacist-in-charge of

the pharmacy, as designated on the pharmacy's license

application.

(b) The complaining party shall mail by certified mail, return

receipt requested and postage prepaid, a copy of the process

served to the license holder at the address of the license holder

designated on the license application.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.055. INVESTIGATION; CONFIDENTIALITY OF INFORMATION.

(a) The board or the board's authorized representative may

investigate and gather evidence concerning any alleged violation

of this subtitle or a board rule.

(b) Information or material compiled by the board in connection

with an investigation, including an investigative file of the

board, is confidential and not subject to:

(1) disclosure under Chapter 552, Government Code; or

(2) any means of legal compulsion for release, including

disclosure, discovery, or subpoena, to anyone other than the

board or a board employee or board agent involved in discipline

of a license holder.

compiled by the board in connection with an investigation may be

disclosed to:

(1) a person involved with the board in a disciplinary action

against the license holder;

(2) an entity in another jurisdiction that licenses or

disciplines pharmacists or pharmacies;

(3) a pharmaceutical or pharmacy peer review committee as

described under Chapter 564;

(4) a law enforcement agency; or

(5) a person engaged in bona fide research, if all information

identifying a specific individual has been deleted.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.311(a), eff.

Sept. 1, 2001.

Sec. 565.056. INFORMAL PROCEEDINGS. (a) The board by rule

shall adopt a procedure governing:

(1) informal disposition of a contested case under Chapter 2001,

Government Code; and

(2) an informal proceeding held in compliance with Chapter 2001,

Government Code.

(b) A rule adopted under this section must:

(1) provide the complainant, if applicable and permitted by law,

and the license holder an opportunity to be heard; and

(2) require the presence of an attorney to advise the board or a

board employee.

the board has a legal staff. If the board does not have a legal

staff, the attorney must be an employee of the office of the

attorney general.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.057. MONITORING OF LICENSE HOLDER. (a) The board

shall develop a policy and procedure for monitoring a license

holder's compliance with this subtitle.

(b) A policy or procedure adopted under this section must

include a procedure to:

(1) monitor for compliance a license holder who is ordered by

the board to perform a certain act; and

(2) identify and monitor a license holder who represents a risk

to the public.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.058. SUBPOENA AUTHORITY. (a) The board or an officer

of the board may:

(1) issue subpoenas ad testificandum or subpoenas duces tecum to

compel the attendance of witnesses or the production of items,

including books, records, or documents;

(2) administer oaths; and

(3) take testimony concerning matters in the board's or

officer's jurisdiction.

(b) A person designated in the subpoena may serve the subpoena.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.059. TEMPORARY SUSPENSION OF LICENSE OR REGISTRATION.

(a) The president of the board shall appoint a three-member

disciplinary panel consisting of board members to determine

whether a license or registration under this subtitle should be

temporarily suspended or restricted. If a majority of the

disciplinary panel determines from evidence or information

presented to the panel that the holder of a license or

registration by continuation in practice would constitute a

continuing threat to the public welfare, the panel shall

temporarily suspend the license or registration.

(b) The disciplinary panel may temporarily suspend the license

or registration without notice or hearing if, at the time the

suspension is ordered, a hearing before the panel on whether

disciplinary proceedings under this chapter should be initiated

against the holder of a license or registration is scheduled to

be held not later than the 14th day after the date of the

suspension.

shall be held by the State Office of Administrative Hearings not

later than the 60th day after the date of the suspension. If the

State Office of Administrative Hearings does not hold the second

hearing in the time required by this subsection, the suspended

license or registration is automatically reinstated.

(d) Notwithstanding Chapter 551, Government Code, the

disciplinary panel may hold a meeting by telephone conference

call if immediate action is required and convening of the panel

at one location is inconvenient for any member of the

disciplinary panel.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 29, eff. September 1, 2005.

Sec. 565.061. ADMINISTRATIVE PROCEDURE. (a) Except as provided

by Chapter 564, a disciplinary action taken by the board under

Section 565.060 or on the basis of a ground for discipline under

Subchapter A is governed by Chapter 2001, Government Code, and

the rules of practice and procedure before the board.

(b) A final decision of the board under this chapter is subject

to judicial review under Chapter 2001, Government Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.062. BURDEN OF PROOF. (a) In a proceeding under this

subtitle, including a trial or hearing, the state is not required

to negate an exemption or exception set forth by this subtitle in

a pleading, including in a complaint, information, or indictment.

(b) The burden of going forward with the evidence with respect

to an exemption or exception is on the person claiming the

benefit of the exemption or exception.

holder of an appropriate license issued under this subtitle, the

person is presumed not to be the holder of the license. The

presumption is subject to rebuttal by a person charged with an

offense under this subtitle.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.063. LIABILITY. This subtitle does not impose

liability on an authorized board employee or person acting under

the supervision of a board employee, or on a state, county, or

municipal officer, engaged in the lawful enforcement of this

subtitle.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 565.064. CONSTRUCTION. This subtitle does not bar a

criminal prosecution for a violation of this subtitle if the

violation is a criminal offense under another law of this state

or a law of the United States.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER C. PETITION FOR REINSTATEMENT OR REMOVAL OF

RESTRICTION

Sec. 565.101. PETITION FOR REINSTATEMENT OR REMOVAL OF

RESTRICTION. (a) A person whose pharmacy license, license to

practice pharmacy, or pharmacy technician registration in this

state has been revoked or restricted under this subtitle, whether

voluntarily or by board action, may, after the first anniversary

of the effective date of the revocation or restriction, petition

the board for reinstatement or removal of the restriction of the

license or registration.

(b) The petition must be in writing and in the form prescribed

by the board.

restriction has the burden of proof.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.312(a), eff.

Sept. 1, 2001.

Sec. 565.102. ACTION BY BOARD. (a) On investigation and review

of a petition under this subchapter, the board may grant or deny

the petition or may modify the board's original finding to

reflect a circumstance that has changed sufficiently to warrant

the modification.

(b) If the board denies the petition, the board may not consider

a subsequent petition from the petitioner until the first

anniversary of the date of denial of the previous petition.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.312(a), eff.

Sept. 1, 2001.

Sec. 565.103. CONDITION FOR REINSTATEMENT OR REMOVAL OF

RESTRICTION. The board may require a person to pass one or more

examinations to reenter the practice of pharmacy.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.312(a), eff.

Sept. 1, 2001.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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