TITLE examining-boards

Part 15. TEXAS STATE BOARD OF PHARMACY

Chapter 281. ADMINISTRATIVE PRACTICE AND PROCEDURES

Subchapter A. GENERAL PROVISIONS

22 TAC §281.18

The Texas State Board of Pharmacy proposes new §281.18, concerning Reporting Professional Liability Claims. The new rule, if adopted, will implement the provisions of Senate Bill 730 (76th Legislative Session) regarding the reporting of professional liability claims to the Texas State Board of Pharmacy.

Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for the first five-year period the rule is in effect, there will be fiscal implications for the state as a result of enforcing or administering the rule. There are no anticipated fiscal implications for local government. The fiscal implications for the state are based on the cost of enforcing and/or administering the rule by the Texas State Board of Pharmacy. Costs for the first year of the new program will include setup costs as well as costs to administer the program. The estimated cost to the Texas State Board of Pharmacy for the next five years will be: FY2000--$232,175; FY2001--$160,010; FY2002--$160,010; FY2003--$160,010; and FY2004--$160,010.

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 protection of the public by identifying licensees who have had malpractice claims filed against them and by taking action against the licensee when appropriate. In most cases, the malpractice insurance carrier will be filing the report with the agency. The costs/fiscal implications to small and large businesses or to other entities who are required to comply with this section cannot be determined by the agency due to the variability in the internal policies of malpractice insurance carriers. It is anticipated that the report form will take 10 to 15 minutes to complete but could vary greatly depending on internal policies of the insurance carrier.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, Box 21, Austin, Texas, 78701-3942.

The new section is proposed under §42 of the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes), as added in Senate Bill 730 by the 76th Legislature, and §554.051 of the Occupations Code. The Board interprets §42 of the Texas Pharmacy Act as authorizing the agency to adopt rules to for reporting professional liability claims. The Board interprets §554.051 of the Occupations Code as authorizing the agency to adopt rules for the proper administration and enforcement of the Act.

The statutes affected by this rule: Texas Civil Statutes, Article 4542a-1, now codified as Occupations Code Subtitle J.

§281.18.Reporting Professional Liability Claims.

(a)

Reporting responsibilities.

(1)

Every insurer or other entity providing pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance covering a pharmacist, pharmacy technician, or pharmacy license holder in this state shall submit to the board the information described in subsection (b) of this section at the time prescribed.

(2)

The information shall be provided with respect to a notice of claim letter or complaint filed against an insured in a court, if the notice or complaint seeks damages relating to the insured's conduct in providing or failing to provide appropriate service within the scope of pharmaceutical care or services, and with respect to settlement of a claim or lawsuit made on behalf of the insured.

(3)

If a pharmacist, pharmacy technician, or a pharmacy licensed in this state does not carry or is not covered by pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance, or if a pharmacist, pharmacy technician, or a pharmacy licensed in this state is insured by a non-admitted carrier or other entity providing pharmacy professional liability insurance that does not report under this Act, the duty to report information under subsection (b) of this section is the responsibility of the particular pharmacist, pharmacy technician, or pharmacy license holder.

(4)

For the purposes of this section a professional liability claim or complaint shall be defined as a cause of action against a pharmacist, pharmacy, or pharmacy technician for conduct in providing or failing to provide appropriate service within the scope of pharmaceutical care or services, which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract, to include pharmacist's interns, pharmacy residents, supervising pharmacists, on-call pharmacists, consulting pharmacists.

(b)

Information to be reported and due dates.

(1)

Initial report. Not later than the 30th day after receipt of the notice of claim letter or complaint by the insurer if the insurer has the duty to report, or by the pharmacist, pharmacy technician, or a pharmacy if the license holder has the duty to report, the following information must be furnished to the board on a form provided by the board:

(A)

the name and address of the insurer;

(B)

the name and address of the insured and type of license or registration held (pharmacist, pharmacy or pharmacy technician):

(C)

the insured's Texas pharmacist or pharmacy license number or pharmacy technician registration number;

(D)

certification, if applicable;

(E)

the policy number;

(F)

name(s) of plaintiff(s);

(G)

date of injury;

(H)

county of injury;

(I)

cause of injury, e.g., dispensing error;

(J)

nature of injury;

(K)

type of action, e.g., claim only or lawsuit;

(L)

name and phone number of the person filing the report; and

(M)

a copy of the notice of claim letter or the lawsuit filed in court.

(2)

Follow-up report. Within 105 days after disposition of the claim, the following information must be provided to the board on a form provided by the board:

(A)

the name and address of the insured and type of license or registration held (pharmacist, pharmacy or pharmacy technician):

(B)

the insured's Texas pharmacist or pharmacy license number or pharmacy technician registration number;

(C)

name(s) of plaintiff(s);

(D)

date of disposition;

(E)

type of disposition, e.g., settlement, judgment;

(F)

amount of disposition;

(G)

whether an appeal has been taken and by which party; and

(H)

name and phone number of the person filing the report.

(3)

Definition. For the purpose of this section, disposition of a claim shall include circumstances where a court order has been entered, a settlement agreement has been reached, or the complaint has been dropped or dismissed.

(c)

Report format

(1)

Separate reports are required for each defendant licensee or registrant.

(2)

The information shall be reported on a form provided by the board.

(3)

A court order or settlement agreement may be submitted as an attachment to the follow-up report.

(d)

Claims not required to be reported. Examples of claims that are not required to be reported under this section are the following:

(1)

product liability claims (i.e., where a licensee invented a medical device which may have injured a patient but the licensee has no personal pharmacist-patient relationship with the specific patient claiming injury by the device);

(2)

antitrust allegations;

(3)

allegations involving improper peer review activities;

(4)

civil rights violations; or

(5)

allegations of liability for injuries occurring on a licensee's property, but not involving a breach of duty (i.e., slip and fall accidents).

(e)

Liability. An insurer reporting under this section, its agents or employees, or the board or its employees or representatives are not liable for damages in a suit brought by any person or entity for reporting as required by this section or for any other action taken under this section.

(f)

Limit on use of information reported.

(1)

Information submitted to the board under this section and the fact that the information has been submitted to the board may not be:

(A)

offered in evidence or used in any manner in the trial of a suit described in this section; or

(B)

used in any manner to determine the eligibility or credentialing of a pharmacy to participate in a health insurance plan defined by the Insurance Code.

(2)

A report received by the board under this section is not a complaint for which a board investigation is required except that the board shall review the information relating to a pharmacist, pharmacy technician, or pharmacy license holder against whom at least three professional liability claims have been reported within a five-year period in the same manner as if a complaint against the pharmacist, pharmacy technician, or pharmacy license holder had been made under Chapter 555 of the Act. The board may initiate an investigation of pharmacist, pharmacy technician, or pharmacy license holder based on the information received under this section.

(3)

The information received under this section may be used in any board proceedings as the board deems necessary.

(g)

Confidentiality. Information submitted under this section is confidential, except as provided in subsection (f)(3) of this section, and is not subject to disclosure under Chapter 552, Government Code.

(h)

Penalty. The Texas Department of Insurance may impose on any insurer subject to this Act sanctions authorized by §§82.051-82.055 (formerly §7, Article 1.10) of the Texas Insurance Code, if the insurer fails to report information as required by this section.

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 December 23, 1999.

TRD-9909022

Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


Subchapter B. GENERAL PROCEDURES IN A CONTESTED CASE

22 TAC §281.57

The Texas State Board of Pharmacy proposes new §281.57, concerning Disciplinary Guidelines. The new rule, if adopted, will provide guidance and promote consistency for sanctions in contested cases.

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 or local government as a result of enforcing or administering the rule.

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 to: (1) provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary matters; (2) promote consistency in the exercise of sound discretion by board members in the imposition of sanctions in disciplinary matters; and (3) provide guidance for board members for the resolution of potentially contested matters. There are no anticipated economic costs to small or large businesses or to other entities who are required to comply with this section as proposed.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, Box 21, Austin, Texas, 78701-3942.

The new section is proposed under §554.002 and §554.051 of the Texas Pharmacy Act (Subtitle J, Chapters 551-564, Occupations Code). The Board interprets §554.002 of the Texas Pharmacy Act as authorizing the agency to regulate the practice of pharmacy by enforcing the provisions of the Act relating to the suspension, revocation, retirement, or restriction of a license to practice pharmacy or to operate a pharmacy or the imposition of an administrative penalty or reprimand on a license holder. The Board interprets §554.051 of the Texas Pharmacy Act as authorizing the agency to adopt rules for the proper administration and enforcement of the Act.

The statutes affected by this rule: Occupations Code, Subtitle J.

§281.57.Disciplinary Guidelines.

(a)

Purpose. This section is promulgated to:

(1)

provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary matters;

(2)

promote consistency in the exercise of sound discretion by board members in the imposition of sanctions in disciplinary matters; and

(3)

provide guidance for board members for the resolution of potentially contested matters.

(b)

Limitations. This chapter shall be construed and applied so as to preserve board member discretion in the imposition of sanctions and remedial measures pursuant to Chapter 566, Occupations Code. This chapter 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)

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 or entity and the severity of such harm;

(3)

environmental harm and severity of such harm;

(4)

increased potential for harm to the public;

(5)

attempted concealment of misconduct;

(6)

premeditated misconduct;

(7)

intentional misconduct;

(8)

motive;

(9)

prior misconduct of a similar or related nature;

(10)

disciplinary history;

(11)

prior written warnings or written admonishments from any government agency or official regarding statutes or regulations pertaining to the misconduct;

(12)

violation of a board order;

(13)

failure to implement remedial measures to correct or mitigate harm from the misconduct;

(14)

lack of rehabilitative potential or likelihood for future misconduct of a similar nature; and

(15)

relevant circumstances increasing the seriousness of the misconduct.

(d)

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 misconduct;

(6)

absence of premeditation to commit misconduct;

(7)

absence of intent to commit misconduct;

(8)

motive;

(9)

absence of prior misconduct of a similar or related nature;

(10)

absence of a disciplinary history;

(11)

implementation of remedial measures to correct or mitigate harm from the misconduct;

(12)

rehabilitative potential;

(13)

prior community service and present value to the community;

(14)

relevant circumstances reducing the seriousness of the misconduct; and

(15)

relevant circumstances lessening responsibility for the misconduct.

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 December 23, 1999.

TRD-9909023

Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


Chapter 291. PHARMACIES

Subchapter A. ALL CLASSES OF PHARMACIES

22 TAC §291.27

The Texas State Board of Pharmacy proposes new §291.27, concerning Pharmacy Residency Programs. The new rule, if adopted, will implement the provisions of Senate Bill 931 (76th Legislative Session) regarding recognizing and approving pharmacy residency programs.

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 or local government as a result of enforcing or administering the rule.

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 protection of the public and increased public confidence in the practice of pharmacy by setting standards which recognize and approve pharmacy residency programs. Of the 32 currently operating pharmacy residency programs identified by the agency, 28 already meet the requirements established by this rule. Therefore, there will be minimal additional economic costs to small and large businesses and to other entities who are required to comply with this section.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, box 21, Austin, Texas, 78701-3942.

The new section is proposed under §17(a) of the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes), as amended by the 76th Legislature, and §554.051 of the Occupations Code. The Board interprets §17(a) of the Texas Pharmacy Act as authorizing the agency to specify standards for recognizing and approving pharmacy residency programs for the purpose of Subchapter T, Chapter 61, Education Code. The Board interprets §554.051 of the Occupations Code as authorizing the agency to adopt rules for the proper administration and enforcement of the Act.

The statutes affected by this rule: Texas Civil Statutes, Article 4542a-1, now codified as Occupations Code Subtitle J.

§291.27.Pharmacy Residency Programs.

For the purposes of Subchapter T, Chapter 61, Education Code, the standards for pharmacy residency programs shall be the standards required by the American Society of Health-System Pharmacists' Commission on Credentialing. The pharmacy residency programs approved by the Board shall be published periodically in the minutes of the Board.

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 December 23, 1999.

TRD-9909024

Gay Dodson, R.Ph.

Executive Director

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


22 TAC §291.29

The Texas State Board of Pharmacy proposes new §291.29, concerning Special Exemption from Pharmacy Technician Certification Requirements. The new rule, if adopted, will implement the provisions of Senate Bill 730 (76th Legislative Session) regarding exemptions from the requirement for pharmacy technicians to become certified.

Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for the first five-year period the rule is in effect, there will be fiscal implications for the state as a result of enforcing or administering the rule. There are no anticipated fiscal implications for local government. The fiscal implications for the state are based on the cost of enforcing or administering the rule by the Texas State Board of Pharmacy. The agency anticipates the receipt of up to 1500 petitions the first year and 90 petitions for each of the second through fifth years. After 5 years, the exemption process will cease. Costs for the first year of the program will include setup costs as well as costs to administer the program. The estimated cost to the Texas State Board of Pharmacy for the next five years will be: FY2000--$25,380; FY2001--$803; FY2002--$803; FY2003--$803; and FY2004--$803.

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 to allow the continued use of non-certified, experienced pharmacy technicians and to allow pharmacies in counties of less than 10,000 population to continue to use non-certified pharmacy technicians. Both exemptions cease on January 1, 2006. The exemptions allow the affected pharmacies additional time to get their technicians certified. The economic cost to small and large businesses or to entities who are required to comply with this section will largely be determined by the amount of time necessary to gather the required information, complete the petition, and forward the petition to the agency. It is anticipated that the time necessary to gather the information required and to complete the petition will average approximately one hour. Assuming that the pharmacy technician's time accounts for 3/4 of the hour and a pharmacist's time for the remaining 1/4 hour, the agency estimates a cost of $15.13 per petition based on salaries of $32/hr for a pharmacist and $9.50/hr for a pharmacy technician.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, box 21, Austin, Texas, 78701-3942.

The new section is proposed under §20(A) of the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes), as added by the 76th Legislature, and §554.051 of the Occupations Code. The Board interprets §20(A) of the Texas Pharmacy Act as authorizing the agency to grant exemptions to the pharmacy technician certification requirements. The Board interprets §554.051 of the Occupations Code as authorizing the agency to adopt rules for the proper administration and enforcement of the Act.

The statutes affected by this rule: Texas Civil Statutes, Article 4542a-1, now codified as Occupations Code Subtitle J.

§291.29.Special Exemption from Pharmacy Technician Certification Requirements

(a)

Pharmacy technicians who, on September 1, 2001, will have been employed as a pharmacy technician in this state for at least 10 years.

(1)

Eligibility. A pharmacy technician may petition the board for a special exemption from the certification requirements established by §20A of the Act if the technician has been continuously employed at a pharmacy in this state since September 1, 1991.

(2)

Petition process.

(A)

A pharmacy technician shall petition the board for the special exemption on a form provided by the board. The petition shall contain the following:

(i)

the name of the pharmacy technician;

(ii)

the name, address, and license number (if known) of the pharmacies where the pharmacy technician has been employed;

(iii)

dates of employment in each pharmacy;

(iv)

a statement signed by the pharmacy technician attesting that the information provided in the petition is true and correct; and

(v)

a statement signed by the pharmacist-in-charge of the pharmacy attesting that the pharmacy technician has been continuously employed as a pharmacy technician/supportive person at a pharmacy in this state since September 1, 1991.

(B)

After review of the petition and/or verification of the employment record, the pharmacy technician shall be notified in writing of approval or denial of the petition. If the petition is approved, the pharmacy technician will be sent a special exemption certificate which shall be displayed at the pharmacy named in the petition.

(3)

Limitation of exemption.

(A)

After January 1, 2001, pharmacy technicians exempted from certification may not perform any of the duties restricted to a certified pharmacy technician.

(B)

All exemptions from certification expire on January 1, 2006. After January 1, 2006, pharmacy technicians exempted from certification shall cease performing the duties of a pharmacy technician until such time as they become certified pharmacy technicians.

(b)

Pharmacy technicians working in counties with a population of 10,000 or less.

(1)

Eligibility. A pharmacy technician may petition the board for a special exemption from the certification requirements established by §20A of the Act if the technician works in a county with a population of 10,000 or less.

(2)

Petition process.

(A)

A pharmacy technician shall petition the board for the special exemption on a form provided by the board. The petition shall contain the following:

(i)

the name of the pharmacy technician;

(ii)

the name, address, and license number of the pharmacy where the pharmacy technician is employed;

(iii)

name of the county in which the pharmacy is located and the most recent official population estimate for the county from the Texas State Data Center;

(iv)

a statement signed by the pharmacy technician attesting that the information provided in the petition is true and correct; and

(v)

a statement signed by the pharmacist-in-charge of the pharmacy attesting that the pharmacy technician is employed as a pharmacy technician at the pharmacy.

(B)

After review of the petition, the pharmacy technician shall be notified in writing of approval or denial of the petition. If the petition is approved, the pharmacy technician will be sent a special exemption certificate which shall be displayed at the pharmacy named in the petition.

(3)

Limitation of exemption.

(A)

After January 1, 2001, pharmacy technicians exempted from certification may not perform any of the duties restricted to a certified pharmacy technician.

(B)

All exemptions from certification expire on January 1, 2006. After January 1, 2006, pharmacy technicians exempted from certification shall cease performing the duties of a pharmacy technician until such time as they become certified pharmacy technicians.

(C)

The exemption granted under this section is only applicable for the pharmacy noted in the petition. Should the pharmacy technician cease employment at the pharmacy or change employment the exemption is canceled and the pharmacy technician shall comply with the certification requirements.

(D)

If the population of the county increases to a point which exceeds a population of 10,000, the Board shall cancel the exemption. The pharmacy technician and the pharmacist-in-charge of the pharmacy will be notified when an exemption is canceled.

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 December 23, 1999.

TRD-9909025

Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


Subchapter B. COMMUNITY PHARMACY (CLASS A)

22 TAC §§291.31-291.34, 291.36

The Texas State Board of Pharmacy proposes amendments to §291.31, concerning Definitions, §291.32, concerning Personnel, §291.33, concerning Operational Standards, §291.34, concerning Records, and §291.36, concerning Class A Pharmacies Compounding Sterile Pharmaceuticals. The amendments, if adopted, will: (1) implement the recommendations of the Task Force on Non-Resident Pharmacies and Pharmacy Automation; and (2) make changes as a result of the rule review of §§291.31-291.34.

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 additional fiscal implications for state or local government as a result of enforcing or administering the rule.

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 to protect the public through the effective control and regulation of the use of automation in pharmacies and to update and clarify currently existing rules. The automation component of the rules permits use of new technology which previously was restricted. Since licensees are not mandated to use the new technology, there is no additional fiscal impact for small or large businesses or to other entities.

The rule review component of the rules requires pharmacies to have hot running water. Since not all pharmacies currently have hot running water, there will be an economic cost for the small and large businesses and entities required to comply with this section. For the very few pharmacies without hot running water, the anticipated cost to comply could range up to several hundred dollars depending on the water heating device selected and what is necessary to install the device. There are no further anticipated economic costs to small or large businesses or to other entities who are required to comply with this section.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, Box 21, Austin, Texas, 78701-3942.

The amendments are proposed under §§554.002, 554.051, and 554.005 of the Texas Pharmacy Act (Subtitle J, Chapters 551-564, Occupations Code). The Board interprets §554.002 of the Texas Pharmacy Act as authorizing the agency to protect the public through the effective control and regulation of the practice of pharmacy. The Board interprets §554.051 of the Texas Pharmacy Act as authorizing the agency to adopt rules for the proper administration and enforcement of the Act. The Board interprets §554.005 of the Texas Pharmacy Act as authorizing the agency to regulate the delivery or distribution of prescription drugs as they relate to the practice of pharmacy and specify the minimum standards for the maintenance of prescription drug records.

The statutes affected by this rule: Occupations Code, Subtitle J.

§291.31.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)

Accurately as prescribed--Dispensing, delivering, and/or distributing a prescription drug order:

(A)-(B)

(No change.)

(C)

with correct labeling (including directions for use) as ordered by the practitioner. Provided, however, that nothing herein shall prohibit pharmacist substitution if substitution is conducted in strict accordance with applicable laws and rules, including Chapters 562 and 563 [ §40 ] of the Texas Pharmacy Act.

(2)

Act--The Texas Pharmacy Act, Chapters 551-566, Occupations Code, [ Texas Civil Statutes, Article 4542a-1, ] as amended.

(3)

(No change.)

(4)

Automated compounding or counting device [ Automated drug dispensing system ]--An automated device that compounds, measures, counts, and/or packages[ , and/or labels ] a specified quantity of dosage units of [ for ] a designated drug product.

(5)

Automated pharmacy dispensing systems--a mechanical system that performs operations or activities, other than compounding or administration, relative to the storage, packaging, counting, labeling, dispensing, and distribution of medications, and which collects, controls, and maintains all transaction information. "Automated pharmacy dispensing systems" does not mean "Automated compounding or counting devices" or "Automated medication supply devices."

(6)

[ (5) ] Board--The Texas State Board of Pharmacy.

(7)

[ (6) ] Carrying out or signing a prescription drug order--The completion of a prescription drug order presigned by the delegating physician, or the signing of a prescription by an advanced practice nurse or physician assistant after the person has been designated with the Texas State Board of Medical Examiners by the delegating physician as a person delegated to sign a prescription. The following information shall be provided on each prescription:

(A)

patient's name and address;

(B)

name, strength, and quantity of the drug to be dispensed;

(C)

directions for use;

(D)

the intended use of the drug, if appropriate;

(E)

the name, address, and telephone number of the physician;

(F)

the name, address, telephone number, and identification number of the advanced practice nurse or physician assistant completing the prescription drug order;

(G)

the date; and

(H)

the number of refills permitted.

(8)

[ (7) ] Certified Pharmacy Technician--A pharmacy technician who:

(A)

has completed the pharmacy technician training program of the pharmacy;

(B)

has taken and passed the National Pharmacy Technician Certification Exam or other examination approved during an open meeting by the Board; and

(C)

maintains a current certification with the Pharmacy Technician Certification Board or any other entity providing an examination approved by the Board.

(9)

[ (8) ] Component--Any ingredient intended for use in the compounding of a drug product, including those that may not appear in such product.

(10)

[ (9) ] Compounding--The preparation, mixing, assembling, packaging, or labeling of a drug or device:

(A)

as the result of a practitioner's prescription drug order or initiative based on the practitioner-patient-pharmacist relationship in the course of professional practice;

(B)

in anticipation of prescription drug orders based on routine, regularly observed prescribing patterns; or

(C)

for the purpose of or as an incident to research, teaching, or chemical analysis and not for sale or dispensing.

(11)

[ (10) ] Confidential record--Any health-related record that contains information that identifies an individual and that is maintained by a pharmacy or pharmacist, such as a patient medication record, prescription drug order, or medication order.

(12)

[ (11) ] Controlled substance--A drug, immediate precursor, or other substance listed in Schedules I-V or Penalty Groups 1-4 of the Texas Controlled Substances Act, as amended, or a drug, immediate precursor, or other substance included in Schedules I, II, III, IV, or V of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended (Public Law 91-513).

(13)

[ (12) ] Dangerous drug--Any drug or device that is not included in Penalty Groups 1-4 of the Controlled Substances Act and that is unsafe for self-medication or any drug or device that bears or is required to bear the legend:

(A)

"Caution: federal law prohibits dispensing without prescription"; or

(B)

"Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."

(14)

[ (13) ] Data communication device--An electronic device that receives electronic information from one source and transmits or routes it to another (e.g., bridge, router, switch or gateway).

(15)

[ (14) ] Deliver or delivery--The actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, whether or not for a consideration.

(16)

[ (15) ] Designated agent--

(A)

a licensed nurse, physician assistant, pharmacist, or other individual designated by a practitioner to communicate prescription drug orders to a pharmacist;

(B)

a licensed nurse, physician assistant, or pharmacist employed in a health care facility to whom the practitioner communicates a prescription drug order; [ or ]

(C)

an advanced practice nurse or physician assistant authorized by a practitioner to carry out or sign a prescription drug order for dangerous drugs under Chapter 157 of the Medical Practice Act (Subtitle B, Occupations Code); or [ the Medical Practice Act, §3.06(d)(5) or (6) (Texas Civil Statutes, Article 4495b). ]

(D)

a person who is a licensed vocational nurse or has an education equivalent to or greater than that required for a licensed vocational nurse designated by the practitioner to communicate prescriptions for an advanced practice nurse or physician assistant authorized by the practitioner to sign prescription drug orders under Chapter 157 of the Medical Practice Act (Subtitle B, Occupations Code).

(17)

[ (16) ] Dispense--Preparing, packaging, compounding, or labeling for delivery a prescription drug or device in the course of professional practice to an ultimate user or his agent by or pursuant to the lawful order of a practitioner.

(18)

[ (17) ] Dispensing pharmacist--The pharmacist responsible for the final check of the dispensed prescription before delivery to the patient.

(19)

[ (18) ] Distribute--The delivery of a prescription drug or device other than by administering or dispensing.

(20)

[ (19) ] Downtime--Period of time during which a data processing system is not operable.

(21)

[ (20) ] Drug regimen review--An evaluation of prescription drug orders and patient medication records for:

(A)

known allergies;

(B)

rational therapy-contraindications;

(C)

reasonable dose and route of administration;

(D)

reasonable directions for use;

(E)

duplication of therapy;

(F)

drug-drug interactions;

(G)

drug-food interactions;

(H)

drug-disease interactions;

(I)

adverse drug reactions; and

(J)

proper utilization, including overutilization or underutilization.

(22)

[ (21) ] Electronic prescription drug order--A prescription drug order which is transmitted by an electronic device to the receiver (pharmacy).

(23)

Electronic signature--A unique security code or other identifier which specifically identifies the person entering information into a data processing system. A facility which utilizes electronic signatures must:

(A)

maintain a permanent list of the unique security codes assigned to persons authorized to use the data processing system; and

(B)

have an ongoing security program which is capable of identifying misuse and/or unauthorized use of electronic signatures.

(24)

[ (22) ] Full-time pharmacist--A pharmacist who works in a pharmacy from 30 to 40 hours per week or, if the pharmacy is open less than 60 hours per week, one-half of the time the pharmacy is open.

(25)

[ (23) ] Hard copy--A physical document that is readable without the use of a special device (i.e., cathode ray tube (CRT), microfiche reader, etc.).

(26)

[ (24) ] Manufacturing--The production, preparation, propagation, conversion, or processing of a drug or device, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical or biological synthesis and includes any packaging or repackaging of the substances or labeling or relabeling of the container and the promotion and marketing of such drugs or devices. Manufacturing also includes the preparation and promotion of commercially available products from bulk compounds for resale by pharmacies, practitioners, or other persons but does not include compounding.

(27)

[ (25) ] Medical Practice Act--The Texas Medical Practice Act, Subtitle B, Occupations Code [ Texas Civil Statutes, Article 4495b ], as amended.

(28)

[ (26) ] Medication order--A written order from a practitioner or a verbal order from a practitioner or his authorized agent for administration of a drug or device.

(29)

[ (27) ] New prescription drug order--A prescription drug order that:

(A)

has not been dispensed to the patient in the same strength and dosage form by this pharmacy within the last year;

(B)

is transferred from another pharmacy; and/or

(C)

is a discharge prescription drug order. (Note: furlough prescription drug orders are not considered new prescription drug orders.)

(30)

[ (28) ] Original prescription--The:

(A)

original written prescription drug order; or

(B)

original verbal or electronic prescription drug order reduced to writing either manually or electronically by the pharmacist.

(31)

[ (29) ] Part-time pharmacist--A pharmacist who works less than full-time.

(32)

[ (30) ] Patient counseling--Communication by the pharmacist of information to the patient or patient's agent in order to improve therapy by ensuring proper use of drugs and devices.

(33)

[ (31) ] Pharmaceutical care--The provision of drug therapy and other pharmaceutical services intended to assist in the cure or prevention of a disease, elimination or reduction of a patient's symptoms, or arresting or slowing of a disease process.

(34)

[ (32) ] Pharmacist-in-charge--The pharmacist designated on a pharmacy license as the pharmacist who has the authority or responsibility for a pharmacy's compliance with laws and rules pertaining to the practice of pharmacy.

(35)

[ (33) ] Pharmacy technician--Those individuals utilized in pharmacies whose responsibility it shall be to provide technical services that do not require professional judgment concerned with the preparation and distribution of drugs under the direct supervision of and responsible to a pharmacist. Pharmacy technician includes certified pharmacy technicians, pharmacy technicians, and pharmacy technician trainees.

(36)

[ (34) ] Pharmacy technician trainee--A pharmacy technician:

(A)

participating in a pharmacy's technician training program; or

(B)

a person currently enrolled in a technician training program accredited by the American Society of Health-System Pharmacists provided:

(i)

the person is working during times the individual is assigned to a pharmacy as a part of the experiential component of the American Society of Health-System Pharmacists training program;

(ii)

the person is under the direct supervision of and responsible to a pharmacist; and

(iii)

the supervising pharmacist conducts in-process and final checks.

(37)

[ (35) ] Physician assistant--A physician assistant recognized by the Texas State Board of Medical Examiners as having the specialized education and training required under Subtitle B, Chapter 157, Occupations Code [ the Medical Practice Act, §3.06(d) ], and issued an identification number by the Texas State Board of Medical Examiners.

(38)

[ (36) ] Practitioner--

(A)

a physician, dentist, podiatrist, veterinarian, or other person licensed or registered to prescribe, distribute, administer, or dispense a prescription drug or device in the course of professional practice in this state;

(B)

a person licensed by another state in a health field in which, under Texas law, licensees in this state may legally prescribe dangerous drugs or a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, having a current Federal Drug Enforcement Administration registration number, and who may legally prescribe Schedule II, III, IV, or V controlled substances in such other state; or

(C)

a person licensed in the Dominion of Canada or the United Mexican States in a health field in which, under the laws of this state, a licensee may legally prescribe dangerous drugs;

(D)

does not include a person licensed under the Texas Pharmacy Act.

(39)

[ (37) ] Prepackaging--The act of repackaging and relabeling quantities of drug products from a manufacturer's original commercial container into a prescription container for dispensing by a pharmacist to the ultimate consumer.

(40)

[ (38) ] Prescription drug order--

(A)

a written order from a practitioner or a verbal order from a practitioner or his authorized agent to a pharmacist for a drug or device to be dispensed; or

(B)

a written order or a verbal order pursuant to Subtitle B, Chapter 157, Occupations Code. [ the Medical Practice Act, §3.06(d 5) and (6) ]

(41)

[ (39) ] Prospective drug use review--A review of the patient's drug therapy and prescription drug order or medication order prior to dispensing or distributing the drug.

(42)

State--One of the 50 United States of America, a U.S. territory, or the District of Columbia.

(43)

[ (40) ] Texas Controlled Substances Act--The Texas Controlled Substances Act, Health and Safety Code, Chapter 481, as amended.

(44)

[ (41) ] Written protocol--A physician's order, standing medical order, standing delegation order, or other order or protocol as defined by rule of the Texas State Board of Medical Examiners under the Texas Medical Practice Act[ , (Texas Civil Statutes, Article 4495b) ].

§291.32.Personnel.

(a)

Pharmacist-in-charge.

(1)

General.

(A)

(No change.)

(B)

The pharmacist-in-charge shall comply with the provisions of § 291.17 of this title (relating to Inventory Requirements).

(2)

Responsibilities. The pharmacist-in-charge shall have responsibility for, at a minimum, the following:

(A)-(L)

(No change.)

(M)

maintenance of records in a data processing system such that the data processing system is in compliance with Class A (community) pharmacy requirements; [ and ]

(N)

legal operation of the pharmacy, including meeting all inspection and other requirements of all state and federal laws or sections governing the practice of pharmacy ; and

(O)

if the pharmacy uses an automated pharmacy dispensing system, shall be responsible for the following:

(i)

reviewing and approving all policies and procedures for system operation, safety, security, accuracy and access, patient confidentiality, prevention of unauthorized access, and malfunction;

(ii)

inspecting medications in the automated pharmacy dispensing system, at least monthly, for expiration date, misbranding, physical integrity, security, and accountability;

(iii)

assigning, discontinuing, or changing personnel access to the automated pharmacy dispensing system;

(iv)

ensuring that pharmacy technicians and licensed healthcare professionals performing any services in connection with an automated pharmacy dispensing system have been properly trained on the use of the system and can demonstrate comprehensive knowledge of the written policies and procedures for operation of the system; and

(v)

ensuring that the automated pharmacy dispensing system is stocked accurately and an accountability record is maintained in accordance with the written policies and procedures of operation.

(b)

Pharmacists.

(1)

(No change.)

(2)

Duties. Duties which may only be performed by a pharmacist are as follows:

(A)-(H)

(No change.)

(I)

performing a specific act of drug therapy management for a patient delegated to a pharmacist by a written protocol from a physician licensed in this state in compliance with the Medical Practice Act [ (Texas Civil Statutes, Article 4495b) ].

(3)

(No change.)

(c)

Pharmacy technicians.

(1)

(No change.)

(2)

Duties.

(A)

General.

(i)

(No change.)

(ii)

A pharmacist may delegate to pharmacy technicians any nonjudgmental technical duty associated with the preparation and distribution of prescription drugs provided:

(I)

a pharmacist conducts in-process and final checks; [ and ]

(II)

pharmacy technicians are under the direct supervision of and responsible to a pharmacist ; and

(III)

only pharmacy technicians who have been properly trained on the use of an automated pharmacy dispensing system and can demonstrate comprehensive knowledge of the written policies and procedures for the operation of the system may be allowed access to the system.

(B)

(No change.)

(3)-(5)

(No change.)

(d)

(No change.)

§291.33.Operational Standards.

(a)

Licensing requirements.

(1)

A Class[ . ] A pharmacy shall register annually or biennially with the board on a pharmacy license application provided by the board, following the procedures specified in §291.1 of this title (relating to Pharmacy License Application).

(2)

A Class[ . ] A pharmacy which changes ownership shall notify the board within ten days of the change of ownership and apply for a new and separate license as specified in §291.4 of this title (relating to Change of Ownership).

(3)

A Class[ . ] A pharmacy which changes location and/or name shall notify the board within ten days of the change and file for an amended license as specified in §291.2 of this title (relating to Change of Location and/or Name).

(4)

A Class[ . ] A pharmacy owned by a partnership or corporation which changes managing officers shall notify the board in writing of the names of the new managing officers within ten days of the change, following the procedures in §291.3 of this title (relating to Change of Managing Officers).

(5)

A Class[ . ] A pharmacy shall notify the board in writing within ten days of closing, following the procedures in §291.5 of this title (relating to Closed Pharmacies).

(6)

A separate license is required for each principal place of business and only one pharmacy license may be issued to a specific location.

(7)

A fee as specified in §291.6 of this title (relating to Pharmacy License Fees) will be charged for the issuance and renewal of a license and the issuance of an amended license.

(8)

A Class[ . ] A pharmacy, licensed under the provisions of the Act, §560.051(a)(1), [ §29(b)(1), ] which also operates another type of pharmacy which would otherwise be required to be licensed under the Act, §560.051(a)(2) [ §29(b)(2) ], concerning Nuclear Pharmacy (Class B), is not required to secure a license for such other type of pharmacy; provided, however, such licensee is required to comply with the provisions of §291.51 of this title (relating to Purpose), §291.52 of this title (relating to Definitions), §291.53 of this title (relating to Personnel), §291.54 of this title (relating to Operational Standards), and §291.55 of this title (relating to Records), contained in Nuclear Pharmacy (Class B), to the extent such sections are applicable to the operation of the pharmacy. [ §291.51 of this title (relating to Definitions), §291.52 of this title (relating to Personnel), §291.53 of this title (relating to Operational Standards), and §291.54 of this title (relating to Records), contained in Nuclear Pharmacy (Class B), to the extent such sections are applicable to the operation of the pharmacy. ]

(9)

A Class[ . ] A (community) pharmacy engaged in the compounding of sterile pharmaceuticals shall comply with the provisions of §291.36 of this title (relating to Class A Pharmacies Compounding Sterile Pharmaceuticals).

(b)

Environment.

(1)

General requirements.

(A)

(No change.)

[ (B)

A sink with running water shall be available to all pharmacy personnel and maintained in a sanitary condition.]

(B)

[ (C) ] A Class A pharmacy [ initially licensed after June 1, 1989, ] shall have a sink with hot and cold running water within the pharmacy, exclusive of restroom facilities, available to all pharmacy personnel and maintained in a sanitary condition.

(C)

[ (D) ] A Class A pharmacy which serves the general public shall contain an area which is suitable for confidential patient counseling. [ A Class A pharmacy initially licensed after June 1, 1989, shall contain an area which is suitable for confidential patient counseling and beginning January 1, 1995, all Class A pharmacies shall contain an area which is suitable for confidential patient counseling. ]

(i)

Such counseling area shall:

(I)

be easily accessible to both patient and pharmacists and not allow patient access to prescription drugs;

(II)

be designed to maintain the confidentiality and privacy of the pharmacist/patient communication.

(ii)

In determining whether the area is suitable for confidential patient counseling and designed to maintain the confidentiality and privacy of the pharmacist/patient communication, the board may consider factors such as the following:

(I)

the proximity of the counseling area to the check-out or cash register area;

(II)

the volume of pedestrian traffic in and around the counseling area;

(III)

the presence of walls or other barriers between the counseling area and other areas of the pharmacy; and

(IV)

any evidence of confidential information being overheard by persons other than the patient or patient's agent or the pharmacist or agents of the pharmacist.

(D)

[ (E) ] The pharmacy shall be properly lighted and ventilated.

(E)

[ (F) ] The temperature of the pharmacy shall be maintained within a range compatible with the proper storage of drugs; the temperature of the refrigerator shall be maintained within a range compatible with the proper storage of drugs requiring refrigeration.

(F)

[ (G) ] Animals, including birds and reptiles, shall not be kept within the pharmacy and in immediately adjacent areas under the control of the pharmacy. This provision does not apply to fish in aquariums, guide dogs accompanying disabled persons, or animals for sale to the general public in a separate area that is inspected by local health jurisdictions.

(2)-(3)

(No change.)

(c)

Prescription dispensing and delivery.

(1)

Patient counseling and provision of drug information.

(A)

(No change.)

(B)

Such communication:

(i)-(iii)

(No change.)

(iv)

[ Beginning September 1, 1993, ] the communication shall be reinforced with written information. The following is applicable concerning this written information.

(I)-(III)

(No change.)

(C)-(D)

(No change.)

(E)

In addition to the requirements of subparagraphs (A)-(D) of this paragraph, if a prescription drug order is delivered to the patient at the pharmacy, the following is applicable.

(i)-(iii)

(No change.)

(iv)

A Class A pharmacy shall make available for use by the public a current or updated edition of the United States Pharmacopeia Dispensing Information, Volume II (Advice to the Patient), or another source of such information designed for the consumer. [ , such as patient information leaflets. ]

(F)

In addition to the requirements of subparagraphs (A)-(D) of this paragraph, if a prescription drug order is delivered to the patient or his or her agent at the patient's residence or other designated location, the following is applicable.

(i)-(ii)

(No change.)

(iii)

The pharmacist shall place on the prescription container or on a separate sheet delivered with the prescription container in both English and Spanish the local and if applicable, toll-free telephone number of the pharmacy and the statement: "Written information about this prescription has been provided for you. Please read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available during normal business hours to answer these questions at (insert the pharmacy's local and toll-free telephone numbers) ."

(iv)

The pharmacy shall maintain and use adequate storage or shipment containers and use shipping processes to ensure drug stability and potency. Such shipping processes shall include the use of appropriate packaging material and/or devices to ensure that the drug is maintained at an appropriate temperature range to maintain the integrity of the medication throughout the delivery process.

(v)

The pharmacy shall use a delivery system which is designed to assure that the drugs are delivered to the appropriate patient.

(G)

(No change.)

(2)

Pharmaceutical care services.

(A)

Drug regimen review.

(i)

For the purpose of promoting therapeutic appropriateness, a pharmacist shall at the time of dispensing a prescription drug order, review the patient's medication record. Such review shall at a minimum identify clinically significant:

(I)

known allergies;

(II)

rational therapy-contraindications;

(III)

reasonable dose and route of administration;

(IV)

reasonable directions for use;

(V)

duplication of therapy;

(VI)

drug-drug interactions;

(VII)

drug-food interactions;

(VIII)

drug-disease interactions;

(IX)

adverse drug reactions; and

(X)

proper utilization, including overutilization or underutilization.

[(I)

inappropriate drug utilization;]

[(II)

therapeutic duplication;]

[(III)

drug-disease contraindications;]

[(IV)

drug-drug interactions;]

[(V)

incorrect drug dosage or duration of drug treatment;]

[(VI)

drug-allergy interactions; and]

[(VII)

clinical abuse/misuse.]

(ii)

Upon identifying any clinically significant conditions, situations, or items listed in clause (i) of this subparagraph, the pharmacist shall take appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner. The pharmacist shall document such occurrences if the prescription is dispensed. The documentation shall:

(I)

be maintained at the pharmacy for two years;

(II)

contain the following information:

(-a-)

unique prescription number;

(-b-)

patient name;

(-c-)

date of the review if different from the dispensing date;

(-d-)

the name, initials, or identification code of the pharmacist who performed the review; and

(-e-)

steps taken to resolve the problem; and

(III)

be available in hard copy format, if so requested by an agent of the board.

(B)

Other pharmaceutical care services which may be provided by pharmacists include, but are not limited to, the following:

(i)

managing drug therapy as delegated by a practitioner as allowed under the provisions of the Medical Practices Act[ , Texas Civil Statutes, Article 4495b ];

(ii)

administering immunizations and vaccinations under written protocol of a physician;

(iii)

[ (ii) ] managing patient compliance programs;

(iv)

[ (iii) ] providing preventative health care services; and

(v)

[ (iv) ] providing case management of patients who are being treated with high-risk or high-cost drugs, or who are considered "high risk" due to their age, medical condition, family history, or related concern.

(3)

Prescription containers.

(A)

(No change.)

(B)

A drug dispensed pursuant to a prescription drug order shall be dispensed in an appropriate container as specified on the manufacturer's container. [ follows.

[(i)

If a drug is susceptible to light, the drug shall be dispensed in a light-resistant container.]

[(ii)

If a drug is susceptible to moisture, the drug shall be dispensed in a tight container.]

[(iii)

The container should not interact physically or chemically with the drug product placed in it so as to alter the strength, quality, or purity of the drug beyond the official requirements.]

(C)

(No change.)

(4)

Labeling.

(A)

At the time of delivery of the drug, the dispensing container shall bear a label with at least the following information:

(i)-(iii)

(No change.)

(iv)

initials or an identification code of the dispensing pharmacist; [ name or initials of the dispensing pharmacist; ]

(v)-(x)

(No change.)

(xi)

if the pharmacist has selected a generically equivalent drug pursuant to the provisions of the Act, Chapters 562 and 563 [ §40 ], the statement "Substituted for Brand Prescribed" or "Substituted for 'Brand Name'" where "Brand Name" is the actual name of the brand name product prescribed;

(xii)

the name of the advanced practice nurse or physician assistant, if the prescription is carried out or signed by an advanced practice nurse or physician assistant in compliance with Subtitle B, Chapter 157, Occupations Code; [ the Medical Practice Act, §3.06(d); ] and

(xiii)

(No change.)

(B)

(No change.)

(d)

Equipment and supplies.

(1)

Class A pharmacies dispensing prescription drug orders shall have the following equipment and supplies:

(A)-(B)

(No change.)

(C)

adequate supply of child-resistant, light-resistant, [ and ] tight , and if applicable, glass containers;

(D)-(F)

(No change.)

(2)

(No change.)

[(3)

Automated dispensing or compounding devices(s). If automated dispensing or compounded device(s) are used, the pharmacy shall have a method to calibrate and verify the accuracy of the automated dispensing or compounding devices and document the calibration and verification on a routine basis.]

(e)

Library. A reference library shall be maintained which includes the following in hard-copy or electronic format :

(1)

(No change.)

(2)

at least one current or updated reference from each of the following categories:

(A)-(B)

(No change.)

(C)

a general information reference text, such as :

(i)-(iv)

(No change.)

(3)

(No change.)

(f)

(No change.)

(g)

Prepackaging of drugs [ and loading bulk unlabeled drugs into automated drug dispensing system ].

[(1)

Prepackaging of drugs.]

(1)

[ (A) ] Drugs may be prepackaged in quantities suitable for internal distribution only by a pharmacist or by supportive personnel under the direction and direct supervision of a pharmacist.

(2)

[ (B) ] The label of a prepackaged unit shall indicate:

(A)

[ (i) ] brand name and strength of the drug; or if no brand name, then the generic name, strength, and name of the manufacturer or distributor;

(B)

[ (ii) ] facility's lot number;

(C)

[ (iii) ] expiration date; and

(D)

[ (iv) ] quantity of the drug, if the quantity is greater than one.

(3)

[ (C) ] Records of prepackaging shall be maintained to show:

(A)

[ (i) ] name of the drug, strength, and dosage form;

(B)

[ (ii) ] facility's lot number;

(C)

[ (iii) ] manufacturer or distributor;

(D)

[ (iv) ] manufacturer's lot number;

(E)

[ (v) ] expiration date;

(F)

[ (vi) ] quantity per prepackaged unit;

(G)

[ (vii) ] number of prepackaged units;

(H)

[ (viii) ] date packaged;

(I)

[ (ix) ] name, initials, or electronic signature [ name or initials ] of the prepacker; and

(J)

[ (x) ] signature , or electronic signature of the responsible pharmacist.

(4)

[ (D) ] Stock packages, repackaged units, and control records shall be quarantined together until checked/released by the pharmacist.

[(2)

Loading bulk unlabeled drugs into automated drug dispensing systems.]

[(A)

Automated drug dispensing systems may be loaded with bulk unlabeled drugs only by a pharmacist or by supportive personnel under the direction and direct supervision of a pharmacist.]

[(B)

The label of an automated drug dispensing system container shall indicate the brand name and strength of the drug; or if no brand name, then the generic name, strength, and name of the manufacturer or distributor.]

[(C)

Records of loading bulk unlabeled drugs into an automated drug dispensing system shall be maintained to show:]

[(i)

name of the drug, strength, and dosage form;]

[(ii)

manufacturer or distributor;]

[(iii)

manufacturer's lot number;]

[(iv)

expiration date;]

[(v)

quantity added to the automated drug dispensing system;]

[(vi)

date of loading;]

[(vii)

name or initials of the person loading the automated drug dispensing system; and]

[(viii)

signature of the responsible pharmacist. ]

[(D)

The automated drug dispensing system shall not be used until a pharmacist verifies that the system is properly loaded and affixes his or her signature to the record specified in subparagraph (C) of this paragraph.]

(h)

Customized patient medication packages.

(1)-(2)

(No change.)

(3)

Label.

(A)

The patient med-pak shall bear a label stating:

(i)-(ix)

(No change.)

(x)

the initials or an identification code of the dispensing pharmacist; [ the initials of the dispensing pharmacist; ] and

(xi)

(No change.)

(B)-(C)

(No change.)

(4)-(6)

(No change.)

(7)

Recordkeeping. In addition to any individual prescription filing requirements, a record of each patient med-pak shall be made and filed. Each record shall contain, as a minimum:

(A)-(F)

(No change.)

(G)

the initials or an identification code of the dispensing pharmacist. [ the name or initials of the pharmacist who prepared the patient med-pak. ]

(i)

(No change.)

(j)

Automated devices and systems.

(1)

Automated compounding or counting devices. If a pharmacy uses automated compounded or counting devices:

(A)

the pharmacy shall have a method to calibrate and verify the accuracy of the automated compounded or counting device and document the calibration and verification on a routine basis;

(B)

the devices may be loaded with bulk or unlabeled drugs only by a pharmacist or by supportive personnel under the direction and direct supervision of a pharmacist;

(C)

the label of an automated compounded or counting device container shall indicate the brand name and strength of the drug; or if no brand name, then the generic name, strength, and name of the manufacturer or distributor;

(D)

records of loading bulk or unlabeled drugs into an automated compounding or counting device shall be maintained to show:

(i)

name of the drug, strength, and dosage form;

(ii)

manufacturer or distributor;

(iii)

manufacturer's lot number;

(iv)

expiration date;

(v)

quantity added to the automated compounded or counting device;

(vi)

date of loading;

(vii)

name, initials, or electronic signature of the person loading the automated compounding or counting device; and

(viii)

signature or electronic signature of the responsible pharmacist; and

(E)

the automated compounded or counting device shall not be used until a pharmacist verifies that the system is properly loaded and affixes his or her signature to the record specified in subparagraph (D) of this paragraph.

(2)

Automated pharmacy dispensing systems.

(A)

Authority to use automated pharmacy dispensing systems. A pharmacy may use an automated pharmacy dispensing system to fill prescription drug orders provided that:

(i)

the pharmacist-in-charge is responsible for the supervision of the operation of the system;

(ii)

the automated pharmacy dispensing system has been tested by the pharmacy and found to dispense accurately. The pharmacy shall make the results of such testing available to the Board upon request; and

(iii)

the pharmacy will make the automated pharmacy dispensing system available for inspection by the board for the purpose of validating the accuracy of the system.

(B)

Quality assurance program. A pharmacy which uses an automated pharmacy dispensing system to fill prescription drug orders shall operate according to a written program for quality assurance of the automated pharmacy dispensing system which:

(i)

requires continuous monitoring of the automated pharmacy dispensing system; and

(ii)

establishes mechanisms and procedures to test the accuracy of the automated pharmacy dispensing system at least every six months and whenever any upgrade or change is made to the system and documents each such activity.

(C)

Policies and procedures of operation.

(i)

When an automated pharmacy dispensing system is used to fill prescription drug orders, it shall be operated according to written policies and procedures of operation. The policies and procedures of operation shall establish requirements for operation of the automated pharmacy dispensing system and shall describe policies and procedures that:

(I)

include a description of the policies and procedures of operation;

(II)

ensure that a pharmacist reviews, approves, and is held accountable for the transmission of each original or new prescription drug order to the automated pharmacy dispensing system before the transmission is made;

(III)

ensure access to the automated pharmacy dispensing system for stocking and retrieval of medications is limited to licensed healthcare professionals or pharmacy technicians acting under the supervision of a pharmacist;

(IV)

provide for and ensure that prior to use, a pharmacist checks, verifies, and documents that the automated pharmacy dispensing system has been accurately filled each time the system is stocked;

(V)

provide for an accountability record to be maintained which documents all transactions relative to stocking and removing medications from the automated pharmacy dispensing system;

(VI)

ensure a prospective drug regimen review is conducted as specified in subsection (c)(2) of this section; and

(VII)

establish and make provisions for documentation of a preventative maintenance program for the automated pharmacy dispensing system.

(ii)

A pharmacy which uses an automated pharmacy dispensing system to fill prescription drug orders shall, at least annually, review its written policies and procedures, revise them if necessary, and document the review.

(D)

Recovery Plan. A pharmacy which uses an automated pharmacy dispensing system to fill prescription drug orders shall maintain a written plan for recovery from a disaster or any other situation which interrupts the ability of the automated pharmacy dispensing system to provide services necessary for the operation of the pharmacy. The written plan for recovery shall include:

(i)

planning and preparation for maintaining pharmacy services when an automated pharmacy dispensing system is experiencing downtime;

(ii)

procedures for response when an automated pharmacy dispensing system is experiencing downtime;

(iii)

procedures for the maintenance and testing of the written plan for recovery; and

(iv)

procedures for notification of the Board, each patient of the pharmacy, and other appropriate agencies whenever an automated pharmacy dispensing system experiences downtime for more than two days of operation or a period of time which significantly limits the pharmacy's ability to provide pharmacy services.

§291.34.Records.

(a)

(No change.)

(b)

Prescriptions.

(1)

(No change.)

(2)

Written prescription drug orders.

(A)

Practitioner's [ Practioner's ] signature. Written prescription drug orders shall be manually signed by the practitioner [ practioner ] (electronically produced or rubber stamped signatures may not be used).

(i)

A practitioner [ practioner ] may sign a prescription drug order in the same manner as he would sign a check or legal document, e.g. J.H. Smith or John H. Smith.

(ii)

The prescription drug order may not be signed by a practitioner's [ practioner's ] agent but may be prepared by an agent for the signature of a practitioner [ practioner ]. However, the prescribing practitioner [ practioner ] is responsible in case the prescription drug order does not conform in all essential respects to the law and regulations.

(B)

Required prescription drug order format.

(i)

(No change.)

(ii)

The two signature line requirement does not apply to the following types of prescription drug orders:

(I)

prescription drug orders issued by a practitioner [ practioner ] in a state other than Texas;

(II)

prescription drug orders for dangerous drugs issued by a practitioner [ practioner ] in the United Mexican States or the Dominion of Canada; and

(III)

prescription drug orders issued by a practitioner [ practioners ] practicing in a federal facility provided they are acting in the scope of their employment.

(C)

Preprinted prescription drug order forms. No prescription drug order form furnished to a practitioner [ practioner ] shall contain a preprinted order for a drug product by brand name, generic name, or manufacturer.

(D)

Prescription drug orders written by practitioners [ practioners ] in another state.

(i)

Dangerous drug prescription orders. A pharmacist may dispense a prescription drug order for dangerous drugs issued by practitioners [ practioners ] in a state other than Texas in the same manner as prescription drug orders for dangerous drugs issued by practitioners [ practioners ] in Texas are dispensed.

(ii)

Controlled substance prescription drug orders.

(I)

A pharmacist may dispense prescription drug order for controlled substances in Schedule II issued by a practitioner in another state provided:

(-a-)

the prescription is filled in compliance with a written plan approved by the Director of the Texas Department of Public Safety in consultation with the Board, which provides the manner in which the dispensing pharmacy may fill a prescription for a Schedule II controlled substance;

(-b-)

the prescription drug order is an original written prescription issued by a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, who has a current federal Drug Enforcement Administration (DEA) registration number, and who may legally prescribe Schedule II controlled substances in such other state; and

(-c-)

the prescription drug order is not dispensed more than six months from the initial date of issuance and may not be refilled.

(II)

A pharmacist may dispense prescription drug orders for controlled substances in Schedule III, IV, or V issued by a practitioner [ practioner ] in another state provided:

(-a-)

[ (I) ] the prescription drug order is an original written prescription issued by a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, who has a current federal Drug Enforcement Administration (DEA) registration number, and who may legally prescribe Schedule III, IV, or V controlled substances in such other state;

(-b-)

[ (II) ] the prescription drug order is not dispensed or refilled more than six months from the initial date of issuance and may not be refilled more than five times; and

(-c-)

[ (III) ] if there are no refill instructions on the original written prescription drug order (which shall be interpreted as no refills authorized) or if all refills authorized on the original written prescription drug order have been dispensed, a new written prescription drug order is obtained from the prescribing practitioner [ practioner ] prior to dispensing any additional quantities of controlled substances.

(E)

prescription drug orders written by practitioners [ practioners ] in the United Mexican States or the Dominion of Canada.

(i)

Controlled substance prescription drug orders. A pharmacist may not dispense a prescription drug order for a Schedule II, III, IV, or V controlled substance issued by a practitioner [ practioner ] in the Dominion of Canada or the United Mexican States.

(ii)

Dangerous drug prescription drug orders. A pharmacist may dispense a dangerous drug prescription issued by a person licensed in the Dominion of Canada or the United Mexican States as a physician, dentist, veterinarian, or podiatrist provided:

(I)

(No change.)

(II)

if there are no refill instructions on the original written prescription drug order (which shall be interpreted as no refills authorized) or if all refills authorized on the original written prescription drug order have been dispensed, a new written prescription drug order shall be obtained from the prescribing practitioner [ practioner ] prior to dispensing any additional quantities of dangerous drugs.

(F)

Prescription drug orders carried out or signed by an advanced practice nurse or physician assistant.

(i)

A pharmacist may dispense a prescription drug order for a dangerous drug which is carried out or signed by an advanced practice nurse or physician assistant provided:

(I)

(No change.)

(II)

the advanced practice nurse or physician assistant is practicing in accordance with Subtitle B, Chapter 157, Occupations Code. [ the Medical Practice Act, §3.06(d). ]

(ii)

Each practitioner shall designate in writing the name of each advanced practice nurse or physician assistant authorized to carry out or sign a prescription drug order pursuant to Subtitle B, Chapter 157, Occupations Code. [ the Medical Practice Act, §3.06(d). ] A list of the advanced practice nurses or physician assistants designated by the practitioner must be maintained in the practitioner's usual place of business. On request by a pharmacist, a practitioner shall furnish the pharmacist with a copy of the written authorization for a specific advanced practice nurse or physician assistant.

(G)

Prescription drug orders for Schedule II controlled substances. No Schedule II controlled substance may be dispensed without a written prescription drug order of a practitioner on an official [ a triplicate ] prescription form as required by the Texas Controlled Substances Act, §481.075.

(3)-(5)

(No change.)

(6)

Therapeutic Drug Interchange. A switch to a drug providing a similar therapeutic response to the one prescribed shall not be made without prior approval of the prescribing practitioner.

(A)

The patient shall be notified of the therapeutic drug interchange prior to, or upon delivery, of the dispensed prescription to the patient. Such notification shall include:

(i)

a description of the change;

(ii)

the reason for the change;

(iii)

whom to notify with questions concerning the change; and

(iv)

instructions for return of the drug if not wanted by the patient.

(B)

The pharmacy shall maintain documentation of patient notification of therapeutic drug interchange which shall include:

(i)

the date of the notification;

(ii)

the method of notification;

(iii)

a description of the change; and

(iv)

the reason for the change.

(7)

[ (6) ] Original prescription drug order records.

(A)

Original prescriptions shall be maintained by the pharmacy in numerical order and remain legible for a period of two years from the date of filling or the date of the last refill dispensed.

(B)

If an original prescription drug order is changed, such prescription order shall be invalid and of no further force and effect; if additional drugs are to be dispensed, a new prescription drug order with a new and separate number is required.

(C)

Original prescriptions shall be maintained in three separate files as follows:

(i)

prescriptions for controlled substances listed in Schedule II;

(ii)

prescriptions for controlled substances listed in Schedule III-V; and

(iii)

prescriptions for dangerous drugs and nonprescription drugs.

(D)

Original prescription records other than prescriptions for Schedule II controlled substances [ triplicate prescriptions ] may be stored on microfilm, microfiche, or other system which is capable of producing a direct image of the original prescription record, e.g., digitalized imaging system. If original prescription records are stored in a direct imaging system, the following is applicable:

(i)

the record of refills recorded on the original prescription must also be stored in this system;

(ii)

the original prescription records must be maintained in numerical order and separated in three files as specified in subparagraph (C) of this paragraph; and

(iii)

the pharmacy must provide immediate access to equipment necessary to render the records easily readable.

(8)

[ (7) ] Prescription drug order information.

(A)

All original prescriptions shall bear:

(i)

name of the patient, or if such drug is for an animal, the species of such animal and the name of the owner;

(ii)

address of the patient, provided, however, a prescription for a dangerous drug is not required to bear the address of the patient if such address is readily retrievable on another appropriate, uniformly maintained pharmacy record, such as medication records;

(iii)

name, and if for a controlled substance, the address and DEA registration number of the practitioner;

(iv)

name and strength of the drug prescribed;

(v)

quantity prescribed;

(vi)

directions for use;

(vii)

intended use for the drug unless the practitioner determines the furnishing of this information is not in the best interest of the patient; and

(viii)

date of issuance.

(B)

All original electronic prescription drug orders shall bear:

(i)

name of the patient, if such drug is for an animal, the species of such animal, and the name of the owner;

(ii)

address of the patient, provided, however, a prescription for a dangerous drug is not required to bear the address of the patient if such address is readily retrievable on another appropriate, uniformly maintained pharmacy record, such as medication records;

(iii)

name, and if for a controlled substance, the address and DEA registration number of the practitioner;

(iv)

name and strength of the drug prescribed;

(v)

quantity prescribed;

(vi)

directions for use;

(vii)

indications for use, unless the practitioner determines the furnishing of this information is not in the best interest of the patient;

(viii)

date of issuance;

(ix)

a statement which indicates that the prescription has been electronically transmitted, (e.g., Faxed to or electronically transmitted to:);

(x)

name, address, and electronic access number of the pharmacy to which the prescription was transmitted;

(xi)

telephone number of the prescribing practitioner;

(xii)

date the prescription drug order was electronically transmitted to the pharmacy, if different from the date of issuance of the prescription; and

(xiii)

if transmitted by a designated agent, the full name of the designated agent.

(C)

All original written prescriptions for dangerous drugs carried out or signed by an advanced practice nurse or physician assistant in accordance with Subtitle B, Chapter 157, Occupations Code [ the Medical Practice Act, §3.06(d) ], shall bear:

(i)

name and address of the patient;

(ii)

name, address, and telephone number[ , and original signature ] of the supervising practitioner;

(iii)

name, identification number, and original signature of the advanced practice nurse or physician assistant;

(iv)

address and telephone number of the clinic at which the prescription drug order was carried out or signed;

(v)

name, strength, and quantity of the dangerous drug;

(vi)

directions for use;

(vii)

indications for use, if appropriate;

(viii)

date of issuance; and

(ix)

number of refills authorized.

(D)

At the time of dispensing, a pharmacist is responsible for the addition of the following information to the original prescription:

(i)

unique identification number of the prescription drug order;

(ii)

initials or identification code of the dispensing pharmacist;

(iii)

quantity dispensed, if different from the quantity prescribed;

(iv)

date of dispensing, if different from the date of issuance; and

(v)

brand name or manufacturer of the drug product actually dispensed, if the drug was prescribed by generic name or if a drug product other than the one prescribed was dispensed pursuant to the provisions of the Act, Chapters 562 and 563 [ §40 ].

(9)

[ (8) ] Refills.

(A)

Refills may be dispensed only in accordance with the prescriber's authorization as indicated on the original prescription drug order.

(B)

If there are no refill instructions on the original prescription drug order (which shall be interpreted as no refills authorized) or if all refills authorized on the original prescription drug order have been dispensed, authorization from the prescribing practitioner shall be obtained prior to dispensing any refills.

(C)

Refills of prescription drug orders for dangerous drugs or nonprescription drugs.

(i)

Prescription drug orders for dangerous drugs or nonprescription drugs may not be refilled after one year from the date of issuance of the original prescription drug order.

(ii)

If one year has expired from the date of issuance of an original prescription drug order for a dangerous drug or nonprescription drug, authorization shall be obtained from the prescribing practitioner prior to dispensing any additional quantities of the drug.

(D)

Refills of prescription drug orders for Schedule III-V controlled substances.

(i)

Prescription drug orders for Schedule III-V controlled substances may not be refilled more than five times or after six months from the date of issuance of the original prescription drug order, whichever occurs first.

(ii)

If a prescription drug order for a Schedule III, IV, or V controlled substance has been refilled a total of five times or if six months have expired from the date of issuance of the original prescription drug order, whichever occurs first, a new and separate prescription drug order shall be obtained from the prescribing practitioner prior to dispensing any additional quantities of controlled substances.

(E)

A pharmacist may exercise his professional judgment in refilling a prescription drug order for a drug, other than a controlled substance listed in Schedule II, without the authorization of the prescribing practitioner, provided:

(i)

failure to refill the prescription might result in an interruption of a therapeutic regimen or create patient suffering;

(ii)

either:

(I)

a natural or manmade disaster has occurred which prohibits the pharmacist from being able to contact the practitioner; or

(II)

the pharmacist is unable to contact the practitioner after a reasonable effort;

(iii)

the quantity of prescription drug dispensed does not exceed a 72-hour supply;

(iv)

the pharmacist informs the patient or the patient's agent at the time of dispensing that the refill is being provided without such authorization and that authorization of the practitioner is required for future refills;

(v)

the pharmacist informs the practitioner of the emergency refill at the earliest reasonable time;

(vi)

the pharmacist maintains a record of the emergency refill containing the information required to be maintained on a prescription as specified in this subsection;

(vii)

the pharmacist affixes a label to the dispensing container as specified in §291.33(c)(4) of this title (relating to Operational Standards); and

(viii)

if the prescription was initially filled at another pharmacy, the pharmacist may exercise his professional judgment in refilling the prescription provided:

(I)

the patient has the prescription container, label, receipt or other documentation from the other pharmacy which contains the essential information;

(II)

after a reasonable effort, the pharmacist is unable to contact the other pharmacy to transfer the remaining prescription refills or there are no refills remaining on the prescription;

(III)

the pharmacist, in his professional judgment, determines that such a request for an emergency refill is appropriate and meets the requirements of clauses (i) and (ii) of this subparagraph; and

(IV)

the pharmacist complies with the requirements of clauses (iii)-(v) of this subparagraph.

(c)

Patient medication records.

(1)

(No change.)

(2)

The patient medication record system shall provide for the immediate retrieval of information for the previous 12 months which is necessary for the dispensing pharmacist to conduct a prospective drug regimen [ use ] review at the time a prescription drug order is presented for dispensing.

(3)

The pharmacist-in-charge shall assure that a reasonable effort is made to obtain and record in the patient medication record at least the following information:

(A)-(D)

(No change.)

(E)

any known allergies, drug reactions, idiosyncrasies, and chronic conditions or disease states of the patient and the identity of any other drugs currently being used by the patient which may relate to prospective drug regimen [ use ] review;

(F)-(G)

(No change.)

(4)-(5)

(No change.)

(d)

(No change.)

(e)

Prescription drug order records maintained in a data processing system.

(1)-(3)

(No change.)

(4)

Transfer of prescription drug order information. For the purpose of refill or initial dispensing, the transfer of original prescription drug order information is permissible between pharmacies, subject to the following requirements.

(A)

The transfer of original prescription drug order information for controlled substances listed in Schedules III, IV, or V is permissible between pharmacies on a one-time basis only. However, pharmacies electronically sharing a real-time, on-line database may transfer up to the maximum refills permitted by law and the prescriber's authorization .

(B)-(J)

(No change.)

(5)

Electronic transfer of prescription drug order information between pharmacies. Pharmacies electronically accessing the same prescription drug order records may electronically transfer prescription information if the following requirements are met.

(A)

The original prescription is voided and the following information is documented in the records of the transferring pharmacy: [ The data processing system shall have a mechanism to send a message to the transferring pharmacy containing the following information: ]

(i)

the name, address, and if a controlled substance, the DEA registration number of the pharmacy to which such prescription is transferred;

(ii)

the name of the pharmacist or pharmacist intern receiving the prescription drug order information; and

(iii)

the date of the transfer.

[(i)

the fact that the prescription drug order was transferred;]

[(ii)

the unique identification number of the prescription drug order transferred;]

[(iii)

the name of the pharmacy to which it was transferred; and]

[(iv)

the date and time of the transfer.]

[(B)

A pharmacist in the transferring pharmacy shall review the message and document the review by signing and dating a hard copy of the message or a log book containing the information required on the message as soon as practical, but in no event more than 72 hours from the time of such transfer.]

(B)

[ (C) ] Pharmacies not owned by the same person may electronically access the same prescription drug order records, provided the owner or chief executive officer of each pharmacy signs an agreement allowing access to such prescription drug order records.

(6)

(No change.)

(f)-(h)

(No change.)

(i)

Permission to maintain central records. Any pharmacy that uses a centralized recordkeeping system for invoices and financial data shall comply with the following procedures.

(1)

Controlled substance records. Invoices and financial data for controlled substances may be maintained at a central location provided the following conditions are met.

(A)

Prior to the initiation of central recordkeeping, the pharmacy submits written notification by registered or certified mail to the divisional director of the Drug Enforcement Administration as required by Title 21, Code of Federal Regulations, §1304.04(a) [ §1304(a) ], and submits a copy of this written notification to the Texas State Board of Pharmacy. Unless the registrant is informed by the divisional director of the Drug Enforcement Administration that permission to keep central records is denied, the pharmacy may maintain central records commencing 14 days after receipt of notification by the divisional director.

(B)-(C)

(No change.)

(2)-(4)

(No change.)

(j)

(No change.)

(k)

Confidentiality.

(1)

(No change.)

(2)

Confidential records are privileged and may be released only to:

(A)

(No change.)

(B)

a practitioner or another pharmacist if, in the pharmacist's professional judgement, the release is necessary to protect the patient's health and well being;

(C)

the board or to a person or another state or federal agency authorized by law to receive the confidential record;

(D)

a law enforcement agency engaged in investigation of a suspected violation of 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.);

(E)

a person employed by a state agency that licenses a practitioner, if the person is performing the person's official duties; or

[(B)

practitioners and other pharmacists when, in the pharmacist's professional judgment, such release is necessary to protect the patient's health and well-being;]

[(C)

other persons, the board, or other state or federal agencies authorized by law to receive such information;]

[(D)

a law enforcement agency engaged in investigation of suspected violations of the Controlled Substances Act or the Dangerous Drug Act;]

[(E)

a person employed by any state agency which licenses a practitioner as defined in the Act if such person is engaged in the performance of the person's official duties; or ]

(F)

(No change.)

§291.36.Class A Pharmacies Compounding Sterile Pharmaceuticals.

(a)

(No change.)

(b)

Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1)-(7)

(No change.)

(8)

Automated compounding or counting device [ Automated compounding or drug dispensing system ]--An automated device that compounds, measures, counts, and/or packages[ , and/or labels ] a specified quantity of dosage units for a designated drug product.

(9)-(58)

(No change.)

(c)

(No change.)

(d)

Operational standards.

(1)

Licensing requirements.

(A)

A Class A pharmacy compounding sterile pharmaceuticals shall register annually or biennially with the board on a pharmacy license application provided by the board, following the procedures specified in §291.1 of this title (relating to Pharmacy License Application).

(B)-(I)

(No change.)

(2)

Environment.

(A)

(No change.)

(B)

Special requirements for the compounding of sterile pharmaceuticals. When the pharmacy compounds sterile pharmaceuticals, the following is applicable.

(i)-(iii)

(No change.)

(iv)

Automated compounding or counting device [ Automated compounding device(s) ]. If automated compounding or counting devices [ automated compounding device(s) ] are used, the pharmacy shall have a method to calibrate and verify the accuracy of automated compounding or counting devices [ automated compounding devices ] used in aseptic processing and document the calibration and verification on a routine basis.

(v)

(No change.)

(C)

(No change.)

(3)

Prescription dispensing and delivery.

(A)

Patient counseling and provision of drug information.

(i)-(v)

(No change.)

(vi)

In addition to the requirements of clauses (i)-(iv) of this subparagraph, if a prescription drug order is delivered to the patient or his or her agent at the patient's residence or other designated location, the following is applicable.

(I)-(II)

(No change.)

(III)

The pharmacist shall place on the prescription container or on a separate sheet delivered with the prescription container in both English and Spanish the local and if applicable, toll-free telephone number of the pharmacy and the statement: "Written information about this prescription has been provided for you. Please read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available during normal business hours to answer these questions at (insert the pharmacy's local and toll-free telephone numbers) ."

(IV)

The pharmacist-in-charge shall assure that:

(-a-)

the pharmacy maintain and use adequate storage or shipment containers and shipping processes [ are used ] to ensure drug stability and potency . Such shipping processes shall include the use of appropriate packaging material and/or devices to ensure that the drug is maintained at an appropriate temperature range to maintain the integrity of the medication throughout the delivery process ; and

(-b-)

the pharmacy uses [ utilizes ] a delivery system which is designed to assure that the drugs are delivered to the appropriate patient.

(vii)

(No change.)

(B)-(C)

(No change.)

(4)

Pharmaceutical care services.

(A)

The following pharmaceutical care services shall be provided by pharmacists of the pharmacy.

(i)

(No change.)

(ii)

Drug regimen review.

(I)

(No change.)

(II)

Upon identifying any clinically significant conditions, situations, or items listed in subclause (I) of this clause, the pharmacist shall take appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner. The pharmacist shall document such occurrences if the prescription is dispensed. The documentation shall:

(-a-)

be maintained at the pharmacy for two years;

(-b-)

contain the following information:

(-1-)

unique prescription number;

(-2-)

patient name;

(-3-)

date of the review if different from the dispensing date;

(-4-)

the name, initials, or identification code of the pharmacist who performed the review; and

(-5-)

steps taken to resolve the problem; and

(-c-)

be available in hard copy format, if so requested by an agent of them board.

(iii)

(No change.)

(B)

(No change.)

(5)-(7)

(No change.)

(8)

Prepackaging of drugs and loading bulk drugs into automated compounding or counting devices [ automated compounding or drug dispensing systems ].

(A)

(No change.)

(B)

Loading bulk drugs into automated compounding or counting devices [ automated compounding or drug dispensing systems ].

(i)

Automated compounding or counting devices [ Automated compounding or drug dispensing systems ] may be loaded with bulk drugs only by a pharmacist or by pharmacy technicians under the direction and direct supervision of a pharmacist.

(ii)

The label of an automated compounding or counting device [ automated compounding or drug dispensing system ] container shall indicate the brand name and strength of the drug; or if no brand name, then the generic name, strength, and name of the manufacturer or distributor.

(iii)

Records of loading bulk drugs into an automated compounding or counting device [ automated compounding or drug dispensing system ] shall be maintained to show:

(I)-(IV)

(No change.)

(V)

quantity added to the automated compounding or counting device [ automated compounding or drug dispensing system ];

(VI)

(No change.)

(VII)

name, initials, or electronic signature of the person loading the automated compounding or counting device [ automated compounding or drug dispensing system ]; and

(VIII)

(No change.)

(iv)

The automated compounding or counting device [ automated compounding or drug dispensing system ] shall not be used until a pharmacist verifies that the system is properly loaded and affixes his or her signature or electronic signature to the record specified in clause (iii) of this subparagraph.

(9)

Sterile pharmaceuticals.

(A)

Batch preparation.

(i)

Master work sheet. A master work sheet shall be developed and approved by a pharmacist for each batch of sterile pharmaceuticals to be prepared. Once approved, a duplicate of the master work sheet shall be used as the preparation work sheet from which each batch is prepared and on which all documentation for that batch occurs. The master work sheet shall contain at a minimum:

(I)-(VI)

(No change.)

(VII)

specific equipment used during aseptic preparation (e.g., specific automated compounding or counting device [ automated compounding device ]); and

(VIII)

(No change.)

(ii)-(iii)

(No change.)

(B)-(D)

(No change.)

(e)

Records.

(1)

(No change.)

(2)

Prescriptions.

(A)-(F)

(No change.)

(G)

Therapeutic Drug Interchange. A switch to a drug providing a similar therapeutic response to the one prescribed shall not be made without prior approval of the prescribing practitioner.

(i)

The patient shall be notified of the therapeutic drug interchange prior to, or upon delivery, of the dispensed prescription to the patient. Such notification shall include:

(I)

a description of the change;

(II)

the reason for the change;

(III)

whom to notify with questions concerning the change; and

(IV)

instructions for return of the drug if not wanted by the patient.

(ii)

The pharmacy shall maintain documentation of patient notification of therapeutic drug interchange which shall include:

(I)

the date of the notification;

(II)

the method of notification;

(III)

a description of the change; and

(IV)

the reason for the change.

(H)

[ (G) ] Original prescription drug order records.

(i)

Original prescriptions shall be maintained by the pharmacy in numerical order and remain legible for a period of two years from the date of filling or the date of the last refill dispensed.

(ii)

If an original prescription drug order is changed, such prescription order shall be invalid and of no further force and effect; if additional drugs are to be dispensed, a new prescription drug order with a new and separate number is required.

(iii)

Original prescriptions shall be maintained in one of the following formats:

(I)

in three separate files as follows:

(-a-)

prescriptions for controlled substances listed in Schedule II;

(-b-)

prescriptions for controlled substances listed in Schedule III-V; and

(-c-)

prescriptions for dangerous drugs and nonprescription drugs; or

(II)

within a patient medication record system provided that original prescriptions for controlled substances are maintained separate from original prescriptions for noncontrolled substances and triplicate prescriptions for Schedule II controlled substances are maintained separate from all other original prescriptions.

(iv)

Original prescription records other than triplicate prescriptions may be stored on microfilm, microfiche, or other system which is capable of producing a direct image of the original prescription record, e.g., digitalized imaging system. If original prescription records are stored in a direct imaging system, the following is applicable.

(I)

The record of refills recorded on the original prescription must also be stored in this system.

(II)

The original prescription records must be maintained in numerical order and as specified in clause (iii) of this subparagraph.

(III)

The pharmacy must provide immediate access to equipment necessary to render the records easily readable.

(I)

[ (H) ] Prescription drug order information.

(i)

All original prescriptions shall bear:

(I)

name of the patient;

(II)

address of the patient, provided, however, a prescription for a dangerous drug is not required to bear the address of the patient if such address is readily retrievable on another appropriate, uniformly maintained pharmacy record, such as medication records;

(III)

name, and if for a controlled substance, the address and DEA registration number of the practitioner;

(IV)

name and strength of the drug prescribed;

(V)

quantity prescribed;

(VI)

directions for use;

(VII)

intended use for the drug unless the practitioner determines the furnishing of this information is not in the best interest of the patient;

(VIII)

date of issuance; and

(IX)

if telephoned to the pharmacist by a designated agent, the full name of the designated agent.

(ii)

All original prescriptions for dangerous drugs carried out by an advanced practice nurse or physician assistant in accordance with the Medical Practice Act, §3.06(d), shall bear:

(I)

name and address of the patient;

(II)

name, address, telephone number, and original signature of the practitioner;

(III)

name, address, telephone number, identification number, and original signature of the advanced practice nurse or physician assistant;

(IV)

name, strength, and quantity of the dangerous drug;

(V)

directions for use;

(VI)

the intended use of the drug, if appropriate;

(VII)

date of issuance; and

(VIII)

number of refills authorized.

(iii)

All original electronic prescription drug orders shall bear:

(I)

name of the patient;

(II)

address of the patient, provided, however, a prescription for a dangerous drug is not required to bear the address of the patient if such address is readily retrievable on another appropriate, uniformly maintained pharmacy record, such as patient medication records;

(III)

name and strength of the drug prescribed;

(IV)

quantity prescribed;

(V)

directions for use;

(VI)

intended use for the drug unless the practitioner determines the furnishing of this information is not in the best interest of the patient;

(VII)

date of issuance;

(VIII)

a statement which indicates that the prescription has been electronically transmitted (e.g., Faxed to or electronically transmitted to:);

(IX)

name, address, and electronic access number of the pharmacy to which the prescription was transmitted;

(X)

telephone number of the prescribing practitioner;

(XI)

date the prescription drug order was electronically transmitted to the pharmacy, if different from the date of issuance of the prescription; and

(XII)

if transmitted by a designated agent, the full name of the designated agent.

(iv)

At the time of dispensing, a pharmacist is responsible for the addition of the following information to the original prescription:

(I)

unique identification number of the prescription drug order;

(II)

initials or identification code of the person who compounded the sterile pharmaceutical and the pharmacist who checked and released the product;

(III)

name, quantity, lot number, and expiration date of each product used in compounding the sterile pharmaceutical; and

(IV)

date of dispensing, if different from the date of issuance.

(J)

[ (I) ] Refills.

(i)

Refills may be dispensed only in accordance with the prescriber's authorization as indicated on the original prescription drug order. Such refills may be indicated as authorization to refill the prescription drug order a specified number of times or for a specified period of time period, such as the duration of therapy.

(ii)

If there are no refill instructions on the original prescription drug order (which shall be interpreted as no refills authorized) or if all refills authorized on the original prescription drug order have been dispensed, authorization from the prescribing practitioner shall be obtained prior to dispensing any refills.

(iii)

Refills of prescription drug orders for dangerous drugs or nonprescription drugs shall be dispensed as follows.

(I)

Prescription drug orders for dangerous drugs or nonprescription drugs may not be refilled after one year from the date of issuance of the original prescription order.

(II)

If one year has expired from the date of issuance of an original prescription drug order for a dangerous drug or nonprescription drug, authorization shall be obtained from the prescribing practitioner prior to dispensing any additional quantities of the drug.

(iv)

Refills of prescription drug orders for Schedule III-V controlled substances shall be dispensed as follows.

(I)

Prescription drug orders for Schedule III-V controlled substances may not be refilled more than five times or after six months from the date of issuance of the original prescription drug order, whichever occurs first.

(II)

If a prescription drug order for a Schedule III, IV, or V controlled substance has been refilled a total of five times or if six months have expired from the date of issuance of the original prescription drug order, whichever comes first, a new and separate prescription drug order shall be obtained from the prescribing practitioner prior to dispensing any additional quantities of controlled substances.

(v)

A pharmacist may exercise his professional judgment in refilling a prescription drug order for a drug, other than a controlled substance listed in Schedule II, without the authorization of the prescribing practitioner, provided:

(I)

failure to refill the prescription might result in an interruption of a therapeutic regimen or create patient suffering;

(II)

either:

(-a-)

a natural or manmade disaster has occurred which prohibits the pharmacist from being able to contact the practitioner; or

(-b-)

the pharmacist is unable to contact the practitioner after a reasonable effort;

(III)

the quantity of prescription drug dispensed does not exceed a 72-hour supply;

(IV)

the pharmacist informs the patient or the patient's agent at the time of dispensing that the refill is being provided without such authorization and that authorization of the practitioner is required for future refills;

(V)

the pharmacist informs the practitioner of the emergency refill at the earliest reasonable time;

(VI)

the pharmacist maintains a record of the emergency refill containing the information required to be maintained on a prescription as specified in this paragraph;

(VII)

the pharmacist affixes a label to the dispensing container as specified in this paragraph; and

(VIII)

if the prescription was initially filled at another pharmacy, the pharmacist may exercise his professional judgment in refilling the prescription provided:

(-a-)

the patient has the prescription container, label, receipt or other documentation from the other pharmacy which contains the essential information;

(-b-)

after a reasonable effort, the pharmacist is unable to contact the other pharmacy to transfer the remaining prescription refills or there are no refills remaining on the prescription;

(-c-)

the pharmacist, in his professional judgment, determines that such a request for an emergency refill is appropriate and meets the requirements of subclauses (I) and (II) of this clause; and

(IX)

the pharmacist complies with the requirements of subclauses (III)-(V) of this clause.

(3)-(11)

(No change.)

(f)

Triplicate prescription requirements. The Texas State Board of Pharmacy adopts by reference the rules promulgated by the Texas Department of Public Safety, which are set forth in Subchapter F of 37 TAC §§13.101-13.113 concerning triplicate prescriptions.

[(1)

Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise.]

[(A)

Designated agent or authorized agent--An individual under the supervision of a practitioner, designated in writing by the practitioner, and for whom the practitioner assumes responsibility, who communicates the practitioner's instructions to the pharmacist. The written designation of an agent authorized to communicate prescriptions shall be maintained in the usual place of business of the practitioner and shall be available for inspection by investigators for the Texas State Board of Medical Examiners, the State Board of Dental Examiners, the State Board of Veterinary Medical Examiners, or the Department of Public Safety.]

[(B)

Emergency situation--For the purpose of authorizing an oral prescription for a Schedule II substance, the term "emergency situation" means those situations in which the prescribing practitioner determines that:]

[(i)

immediate administration of the controlled substance is necessary for proper treatment of the intended ultimate user;]

[(ii)

no appropriate alternative treatment is available, including administration of a drug which is not a controlled substance under Schedule II; and]

[(iii)

it is not reasonably possible for the prescribing practitioner to provide a written prescription to a pharmacist prior to the dispensing.]

[(C)

Hospital--]

[(i)

General hospital--Any establishment offering services, facilities, and beds for use beyond 24 hours for two or more nonrelated individuals requiring diagnosis, treatment, or care for illness, injury, deformity, abnormality, or pregnancy, and regularly maintaining at least clinical laboratory services, diagnostic x-ray services, treatment facilities which would include surgery and/or obstetrical care, and other definitive medical or surgical treatment of similar extent.]

[(ii)

Special hospital--Any establishment offering services, facilities, and beds for use beyond 24 hours for two or more nonrelated individuals who are regularly admitted, treated, and discharged and require services more intensive than room, board, personal services, and general nursing care and which has clinical laboratory facilities, diagnostic x-ray facilities, treatment facilities, and/or other definitive medical treatment and has a medical house staff in regular attendance, and maintains records of the clinical work performed for each patient.]

[(iii)

Ambulatory surgical center--Approved surgical centers licensed by the State Hospital Licensing Board and approved by Medicaid to do day surgery when a patient is not admitted beyond a 24-hour period.]

[(D)

Institutional practitioner--]

[(i)

An individual who meets each of the following qualifications:]

[(I)

not yet licensed by the appropriate state professional licensing board;]

[(II)

enrolled in a bona fide professional training program;]

[(III)

in a base hospital or institutional training facility registered by the federal Drug Enforcement Administration; and]

[(IV)

authorized by the base hospital or training institution to administer, dispense, or prescribe controlled substances.]

[(ii)

Institutional practitioner shall be limited to interns, residents, fellows, or their equivalent.]

[(E)

Medical purpose--The utilization of controlled substances for the purpose of relieving or curing mental or physical diseases or infirmities.]

[(F)

Possession--The actual care, custody, control, or management.]

[(G)

Prescribe--A direction or authorization, by prescription, permitting an ultimate user lawfully to obtain controlled substances from any person authorized by law to dispense such substances.]

[(H)

Triplicate prescription--The official Texas Department of Public Safety prescription form utilized to administer, dispense, prescribe, or deliver a Schedule II narcotic and/or Schedule II-N nonnarcotic controlled substance to an ultimate user.]

[(I)

Ultimate user--A person who has lawfully obtained and possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or a member of his household.]

[(2)

Special instructions. Information and special instruction information regarding procedures under these rules and regulations will be furnished upon request by writing to the Triplicate Prescription Section, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773.]

[(3)

Purpose of issuing triplicate prescriptions.]

[(A)

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription not issued in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of the Texas Controlled Substances Act, §481.074 and the person knowingly filling such a purported prescription, as well as the person issuing it, may be subject to the penalties provided for violation of the provisions of law or rules relating to controlled substances.]

[(B)

Prescriptions for Schedule II controlled substances shall be issued on the triplicate prescription form only and may not be refilled.]

[(4)

Emergency dispensing of Schedule II controlled substances. No controlled substance in Schedule II may be administered, dispensed, prescribed, or delivered without the written prescription of a practitioner on a triplicate prescription form, except in emergency situations, as defined as follows.]

[(A)

Schedule II controlled substances may be dispensed upon oral or telephonically communicated prescription of a practitioner or a practitioner's designated agent reduced promptly to writing by the pharmacy and filed by the pharmacy. Within 72 hours after authorizing an emergency oral prescription, the prescribing individual practitioner shall cause a written triplicate prescription, with the "Check if Emergency" block marked and indicating the emergency quantity prescribed to be delivered to the dispensing pharmacist. In addition to other requirements of the CFR, Title 21, Chapter 2, Part 1306.05, the prescription shall have written on its face "Authorization for Emergency Dispensing" and the date of the oral order. The federal regulation will be deemed satisfied by marking the block at the bottom of the triplicate prescription form indicating "Check if Emergency" and filling in "Date Issued" space at top of form.]

[(B)

The written prescription may be delivered to the pharmacist in person or by mail, but if delivered by mail, it must be postmarked within the 72-hour period. Upon receipt, the dispensing pharmacist shall attach Copy 2 of the triplicate prescription to the oral emergency prescription which has earlier been reduced to writing.]

[(C)

The dispensing pharmacist shall send Copy 1 of the triplicate prescription to the Department of Public Safety within 30 days from the date the prescription is filled. Copy 2 of the triplicate prescription, along with the copy of the oral emergency prescription, will be retained by the pharmacy for two years for inspection purposes. No prescription for a Schedule II controlled substance may be refilled.]

[(5)

Partial dispensing of Schedule II controlled substances.]

[(A)

If unable to supply the full quantity called for in a written or emergency oral prescription for a Schedule II controlled substance, the pharmacist may partially dispense the prescription and complete the prescription under the following conditions.]

[(i)

The pharmacist notes the initial partial quantity dispensed on the face of the written prescription or emergency oral prescription.]

[(ii)

The remaining portion of the prescription is dispensed within 72 hours of the first partial dispensing. No further quantity may be dispensed beyond 72 hours without a new prescription.]

[(iii)

If the remaining portion of the prescription is not or cannot be dispensed within the 72-hour period, the pharmacist shall notify the prescribing practitioner.]

[(B)

A pharmacist may dispense a prescription for a Schedule II controlled substance in partial quantities to include individual dosage units, for a patient in a long-term facility (LTCF) or for a patient with a medical diagnosis documenting a terminal illness under the following conditions.]

[(i)

The pharmacist must record on the prescription whether the patient is terminally ill or an LTCF patient. A prescription that is partially filled and does not contain the notation terminally ill or LTCF patient shall be deemed to have been filled in violation of the Texas Controlled Substances Act.]

[(ii)

If there is any question about whether a patient may be classified as having a terminal illness, the pharmacist must contact the practitioner prior to partially filling the prescription. Both the pharmacist and the practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient.]

[(iii)

For each partial dispensing, the dispensing pharmacist shall record on the back of Copy 1 and Copy 2 of the prescription the:]

[(I)

date of the partial dispensing;]

[(II)

quantity dispensed;]

[(III)

remaining quantity authorized to be dispensed; and]

[(IV)

identification of the dispensing pharmacist.]

[(iv)

Prior to any subsequent partial dispensing, the pharmacist must determine that the additional partial dispensing is necessary.]

[(v)

The total quantity of the Schedule II controlled substances dispensed in all partial dispensings must not exceed the total quantity prescribed.]

[(vi)

Schedule II prescriptions for patients in a long-term care facility or patients with a medical diagnosis documenting a terminal illness shall be valid for a period not to exceed 30 days from the issue date unless sooner terminated by discontinuance of the medication.]

[(6)

Exceptions to use of triplicate prescriptions.]

[(A)

A medication order written for a patient who is admitted to a hospital at the time the medication order is written and filled is not required to be on a triplicate prescription.]

[(i)

"Medication order," as used in this subsection, will mean a drug order issued for administration to a patient admitted to a hospital.]

[(ii)

"Admitted to a hospital," as used in this subsection, will include the following:]

[(I)

general hospital, special hospitals, ambulatory surgical centers, and surgical suites in dental schools;]

[(II)

hospital clinics and emergency room admittance, if the clinic and/or emergency room is under the control, direction, and administration as an integral part of the general or special hospital.]

[(B)

A prescription written and filled for a patient who is admitted to a hospital at the time the prescription is written and filled is not required to be on a triplicate prescription; however, such prescription shall comply with the requirement of the Texas Pharmacy Act, §40(g).]

[(i)

Schedule II controlled substances may be dispensed by a practitioner or pharmacy of the hospital to a patient who has been admitted to a hospital and who will require an emergency quantity of controlled substances upon release from the hospital. These Schedule II controlled substances may only be dispensed to a patient while such patient is still admitted to and a resident of the hospital.]

[(ii)

The amount of Schedule II controlled substances dispensed under this paragraph may only be the amount needed for proper treatment of the patient until access to a pharmacy other than the hospital pharmacy is possible, but in no event may exceed a seven-day supply. However, when an emergency supply is dispensed from the emergency room of the hospital, the amount dispensed may not exceed a 72-hour supply.]

[(iii)

The Schedule II controlled substances dispensed under the situations outlined in clause (ii) of this subparagraph must be in a properly labeled container.]

[(7)

Pharmacist responsibilities.]

[(A)

Upon receipt of Copy 1 and Copy 2 of a properly completed triplicate prescription from a practitioner, each dispensing pharmacist shall utilize the "Pharmacy Use Only" section and record the following:]

[(i)

pharmacy name, address, area code/telephone number, and Drug Enforcement Administration number. This information may be printed, typed, or rubber stamped, or the pharmacist may use a label that is securely affixed in this area;]

[(ii)

the dispensing pharmacist's signature shall be entered in a space located directly below the pharmacy information;]

[(iii)

enter in the spaces provided the date filled and the pharmacy prescription number;]

[(iv)

ensure that the drug prescribed and/or its substitute is legible on Copy 1 and Copy 2 of the triplicate prescription.]

[(B)

No Schedule II prescription may be dispensed after the end of the seventh day following the date of issuance.]

[(C)

a pharmacist may dispense a prescription that is orally or telephonically communicated by a practitioner or his designated agent for a Schedule II controlled substance in emergency situations, as defined by paragraph (1)(B) of this subsection.]

[(i)

In such emergency situations the dispensing pharmacist shall reduce promptly to writing the following:]

[(I)

name, address, and federal Drug Enforcement Administration number of the prescribing practitioner;]

[(II)

drug prescribed, the dosage, and the instructions for use;]

[(III)

name, address, and age of the person for whom the controlled substance is prescribed (or if an animal, the species and owner's name and address).]

[(ii)

The pharmacist shall file the recorded information as set out in subparagraph (C)(i) of this paragraph in the pharmacy's Schedule II prescription files.]

[(iii)

Within 72 hours from the time thee emergency oral or telephonic communication was received, the practitioner must provide the dispensing pharmacy with the triplicate prescription order corresponding to the oral prescription order. If such triplicate prescription is not provided, the pharmacist shall contact the Department of Public Safety and the Drug Enforcement Administration.]

[(iv)

The practitioner is required to place the date issued on the triplicate prescription and such date shall be the date the practitioner or his designated agent communicated the emergency oral or telephonic prescription to the pharmacy.]

[(v)

The practitioner shall check the block at the bottom of the triplicate prescription which indicates the prescription is an emergency order. If the practitioner fails to check such block, the pharmacist should do so.]

[(vi)

The pharmacist shall attach Copy 2 to the oral emergency prescription which was reduced to writing upon receipt from the practitioner or practitioner's designated agent.]

[(D)

Within 30 days from the date a pharmacist fills a triplicate prescription, the pharmacy is required to mail Copy 1 of the form to the Texas department of Public Safety, Triplicate Prescription Section, P.O. Box 4087, Austin, Texas 78773.]

[(E)

Should a prescription be written on a triplicate prescription by a practitioner for a controlled substance other than a Schedule II, the pharmacist may dispense the prescription but shall mark the prescription in such a way as to clearly indicate that the drug dispensed is not a Schedule II controlled substance.]

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 December 23, 1999.

TRD-9909026

Gay Dodson, R.Ph.

Executive Secretary/Director

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


Subchapter F. NON-RESIDENT PHARMACY (CLASS E)

22 TAC §§291.101-291.105

The Texas State Board of Pharmacy proposes new §291.101, concerning Purpose, §291.102, concerning Definitions, §291.103, concerning Personnel, §291.104, concerning Operational Standards, and §291.105, concerning Records. The new rules, if adopted, will implement the recommendations of the Task Force on Non-Resident Pharmacies and Pharmacy Automation.

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 additional fiscal implications for state or local government as a result of enforcing or administering the rule.

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 to protect the public through the effective control and regulation of non-resident pharmacies which provide pharmacy services to residents of Texas. These new rules primarily clarify statutory requirements which have been in existence for several years. Therefore, the economic impact on Class E (Non-Resident) Pharmacies is anticipated to be minimal. There are no anticipated economic costs to other small or large businesses or to other entities who are required to comply with this section as proposed.

Comments on the proposal may be submitted to Steve Morse, R.Ph., Director of Compliance, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, Box 21, Austin, Texas, 78701-3942.

The new rules are proposed under §§554.002, 554.051, and 554.005 of the Texas Pharmacy Act (Subtitle J, Chapters 551-564, Occupations Code). The Board interprets §554.002 of the Texas Pharmacy Act as authorizing the agency to protect the public through the effective control and regulation of the practice of pharmacy. The Board interprets §554.051 of the Texas Pharmacy Act as authorizing the agency to adopt rules for the proper administration and enforcement of the Act including adoption of rules for pharmacies located in another state. The Board interprets §554.005 of the Texas Pharmacy Act as authorizing the agency to regulate the delivery or distribution of prescription drugs as they relate to the practice of pharmacy and specify the minimum standards for the maintenance of prescription drug records.

The statutes affected by this rule: Occupations Code, Subtitle J.

§291.101.Purpose.

(a)

The purpose of these rules is to provide standards for the operation of non-resident pharmacies (Class E) which dispense a prescription drug or device under a prescription drug order and deliver the drug or device to a patient in this state, by the United States mail, a common carrier, or a delivery service.

(b)

These rules are in accordance with §554.051(a) and (b) of the Act which permit the board to make rules concerning the operation of licensed pharmacies in this state applicable to pharmacies licensed by the board that are located in another state. The board has determined that these rules are necessary to protect the health and welfare of the citizens of this state.

(c)

Unless compliance would violate the pharmacy or drug laws or rules in the state in which the pharmacy is located, Class E Pharmacies are required to comply with the provisions of §291.101-291.105 of this chapter (relating to purpose, definitions, personnel, operational standards, and records).

§291.102.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)

Act--The Texas Pharmacy Act, Chapters 551-566, Occupations Code, as amended.

(2)

Accurately as prescribed--Dispensing, delivering, and/or distributing a prescription drug order:

(A)

to the correct patient (or agent of the patient) for whom the drug or device was prescribed;

(B)

with the correct drug in the correct strength, quantity, and dosage form ordered by the practitioner; and

(C)

with correct labeling (including directions for use) as ordered by the practitioner. Provided, however, that nothing herein shall prohibit pharmacist substitution if substitution is conducted in strict accordance with applicable laws and rules, including Subchapter A of Chapter 562 of the Texas Pharmacy Act relating to Prescription and Substitution Requirements.

(3)

Board--The Texas State Board of Pharmacy.

(4)

Class E pharmacy license or non-resident pharmacy license--A license issued to a pharmacy located in another state whose primary business is to:

(A)

dispense a prescription drug or device under a prescription drug order; and

(B)

to deliver the drug or device to a patient, including a patient in this state, by the United States mail, common carrier, or delivery service.

(5)

Confidential Record--Any health related record, including a patient medication record, prescription drug order, or medication order that:

(A)

contains information that identifies an individual; and

(B)

is maintained by a pharmacy or pharmacist.

(6)

Deliver or delivery--The actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, whether or not for a consideration.

(7)

Dispense--Preparing, packaging, compounding, or labeling, in the course of professional practice, a prescription drug or device for delivery to an ultimate user or the user's agent under a practitioner's lawful order.

(8)

Distribute--To deliver a prescription drug or device other than by administering or dispensing.

(9)

Generically equivalent--A drug that is "pharmaceutically equivalent" and "therapeutically equivalent" to the drug prescribed.

(10)

New prescription drug order--A prescription drug order that:

(A)

has not been dispensed to the patient in the same strength and dosage form by this pharmacy within the last year;

(B)

is transferred from another pharmacy; and/or

(C)

is a discharge prescription drug order. (Note: furlough prescription drug orders are not considered new prescription drug orders.)

(11)

Pharmaceutically equivalent--Drug products which have identical amounts of the same active chemical ingredients in the same dosage form and which meet the identical compendial or other applicable standards of strength, quality, and purity according to the United States Pharmacopoeia or other nationally recognized compendium.

(12)

Pharmacist--For the purpose of this subchapter, a person licensed to practice pharmacy in the state where the Class E pharmacy is located.

(13)

Pharmacist-in-charge--The pharmacist designated on a pharmacy license as the pharmacist who has the authority or responsibility for a pharmacy's compliance with statutes and rules pertaining to the practice of pharmacy.

(14)

Practitioner--

(A)

a person licensed or registered to prescribe, distribute, administer, or dispense a prescription drug or device in the course of professional practice in this state, including a physician, dentist, podiatrist, or veterinarian but excluding a person licensed under the Act;

(B)

a person licensed by another state, Canada, or the United Mexican States in a health field in which, under the law of this state, a license holder in this state may legally prescribe a dangerous drug; or

(C)

a person practicing in another state and licensed by another state as a physician, dentist, veterinarian, or podiatrist, who has a current federal Drug Enforcement Administration registration number and who may legally prescribe a Schedule II, III, IV, or V controlled substance, as specified under Chapter 481, Health and Safety Code, in that other state.

(15)

Prescription drug order--An order from a practitioner or a practitioner's designated agent to a pharmacist for a drug or device to be dispensed.

(16)

Therapeutically equivalent--Pharmaceutically equivalent drug products which, when administered in the same amounts, will provide the same therapeutic effect, identical in duration and intensity.

§291.103.Personnel.

As specified in §562.101(f) of the Act (relating to Supervision of Pharmacy), a Class E pharmacy shall be under the continuous on-site supervision of a pharmacist and shall designate one pharmacist licensed to practice pharmacy by the regulatory or licensing agency of the state in which the Class E pharmacy is located to serve as the pharmacist-in-charge of the Class E pharmacy license.

§291.104.Operational Standards.

(a)

Licensing requirements.

(1)

A Class E pharmacy shall register annually or biennially with the board on a pharmacy license application provided by the board, following the procedures specified in §291.1 of this title (relating to Pharmacy License Application) and provide the following additional information specified in §560.052(c) of the Act (relating to Qualifications):

(A)

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

(B)

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

(C)

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

(D)

an affidavit by the pharmacist-in-charge which states that the pharmacist has read and understands the laws and rules relating to a Class E pharmacy.

(2)

A Class E pharmacy which changes ownership shall notify the board within ten days of the change of ownership and apply for a new and separate license as specified in §291.4 of this title (relating to Change of Ownership).

(3)

A Class E pharmacy which changes location and/or name shall notify the board within ten days of the change and file for an amended license as specified in §291.2 of this title (relating to Change of Location and/or Name).

(4)

A Class E pharmacy owned by a partnership or corporation which changes managing officers shall notify the board in writing of the names of the new managing officers within ten days of the change, following the procedures in §291.3 of this title (relating to Change of Managing Officers).

(5)

A Class E pharmacy shall notify the board in writing within ten days of closing.

(6)

A separate license is required for each principal place of business and only one pharmacy license may be issued to a specific location.

(7)

A fee as specified in §291.6 of this title (relating to Pharmacy License Fees) will be charged for the issuance and renewal of a license and the issuance of an amended license.

(8)

The board may grant an exemption from the licensing requirements of this Act on the application of a pharmacy located in a state of the United States other than this state that restricts its dispensing of prescription drugs or devices to residents of this state to isolated transactions.

(b)

Prescription dispensing and delivery.

(1)

General.

(A)

All prescription drugs and/or devices shall be dispensed and delivered safely and accurately as prescribed.

(B)

The pharmacy shall maintain adequate storage or shipment containers and use shipping processes to ensure drug stability and potency. Such shipping processes shall include the use of packaging material and devices to ensure that the drug is maintained at an appropriate temperature range to maintain the integrity of the medication throughout the delivery process.

(C)

The pharmacy shall utilize a delivery system which is designed to assure that the drugs are delivered to the appropriate patient.

(2)

Drug regimen review.

(A)

For the purpose of promoting therapeutic appropriateness, a pharmacist shall prior to or at the time of dispensing a prescription drug order, review the patient's medication record. Such review shall at a minimum identify clinically significant:

(i)

inappropriate drug utilization;

(ii)

therapeutic duplication;

(iii)

drug-disease contraindications;

(iv)

drug-drug interactions;

(v)

incorrect drug dosage or duration of drug treatment;

(vi)

drug-allergy interactions; and

(vii)

clinical abuse/misuse.

(B)

Upon identifying any clinically significant conditions, situations, or items listed in subparagraph (A) of this paragraph, the pharmacist shall take appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner. The pharmacist shall document such occurrences if the prescription is dispensed. The documentation shall:

(i)

be maintained at the pharmacy for two years;

(ii)

contain the following information:

(I)

unique prescription number;

(II)

patient name;

(III)

date of the review if different from the dispensing date;

(IV)

the name, initials, or identification code of the pharmacist who performed the review; and

(V)

steps taken to resolve the problem; and

(iii)

be available in a hard copy format, if so requested by an agent of the board.

(3)

Patient counseling and provision of drug information.

(A)

To optimize drug therapy, a pharmacist shall communicate to the patient or the patient's agent, information about the prescription drug or device which in the exercise of the pharmacist's professional judgment the pharmacist deems significant, such as the following:

(i)

the name and description of the drug or device;

(ii)

dosage form, dosage, route of administration, and duration of drug therapy;

(iii)

special directions and precautions for preparation, administration, and use by the patient;

(iv)

common severe side or adverse effects or interactions and therapeutic contraindications that may be encountered, including their avoidance, and the action required if they occur;

(v)

techniques for self monitoring of drug therapy;

(vi)

proper storage;

(vii)

refill information; and

(viii)

action to be taken in the event of a missed dose.

(B)

Such communication:

(i)

shall be provided with each new prescription drug order, once yearly on maintenance medications, and if the pharmacist deems appropriate, with prescription drug order refills. (For the purposes of this clause, maintenance medications are defined as any medication the patient has taken for one year or longer);

(ii)

shall be provided for any prescription drug order dispensed by the pharmacy on the request of the patient or patient's agent;

(iii)

shall be communicated orally in person unless the patient or patient's agent is not at the pharmacy or a specific communication barrier prohibits such oral communication; and

(iv)

shall be reinforced with written information. The following is applicable concerning this written information:

(I)

Written information designed for the consumer shall be provided.

(II)

When a compounded product is dispensed, information shall be provided for the major active ingredient(s), if available.

(III)

For new drug entities, if no written information is initially available, the pharmacist is not required to provide information until such information is available, provided:

(-a-)

the pharmacist informs the patient or the patient's agent that the product is a new drug entity and written information is not available.

(-b-)

the pharmacist documents the fact that no written information was provided; and

(-c-)

if the prescription is refilled after written information is available, such information is provided to the patient or patient's agent.

(C)

Only a pharmacist may orally provide drug information to a patient or patient's agent and answer questions concerning prescription drugs. Non-pharmacist personnel may not ask questions of a patient or patient's agent which are intended to screen and/or limit interaction with the pharmacist.

(D)

If prescriptions are routinely delivered outside the area covered by the pharmacy's local telephone service, the pharmacy shall provide a toll-free telephone line which is answered during normal business hours to enable communication between the patient and a pharmacist.

(E)

The pharmacist shall place on the prescription container or on a separate sheet delivered with the prescription container in both English and Spanish the local and toll- free telephone number of the pharmacy and the statement: "Written information about this prescription has been provided for you. Please read this information before you take the medication. If you have questions concerning this prescription, a pharmacist is available during normal business hours to answer these questions at (insert the pharmacy's local and toll-free telephone numbers)."

(F)

The provisions of this paragraph do not apply to patients in facilities where drugs are administered to patients by a person required to do so by the laws of the state (i.e., nursing homes).

(G)

Nothing in this subparagraph shall be construed as requiring a pharmacist to provide consultation when a patient or patient's agent refuses such consultation. The pharmacist shall document such refusal for consultation.

(c)

Generic Substitution. Unless compliance would violate the pharmacy or drug laws or rules in the state in which the pharmacy is located:

(1)

a pharmacist in a Class E pharmacy may dispense a generically equivalent drug product if:

(A)

the generic product costs the patient less than the prescribed drug product;

(B)

the patient does not refuse the substitution; and

(C)

the prescribing practitioner authorizes the substitution of a generically equivalent product; or

(D)

the practitioner or practitioner's agent does not clearly indicate that the oral or electronic prescription drug order shall be dispensed as ordered; and

(2)

provided the pharmacist uses as a basis for the determination of generic equivalency, the publication, Approved Drug Products With Therapeutic Equivalence Evaluations and current supplements published by the Federal Food and Drug Administration within the limitations stipulated in that publication.

(d)

Therapeutic Drug Interchange. A switch to a drug providing a similar therapeutic response to the one prescribed shall not be made without prior approval of the prescribing practitioner.

(1)

The patient shall be notified of the therapeutic drug interchange prior to, or upon delivery, of the dispensed prescription to the patient. Such notification shall include:

(A)

a description of the change;

(B)

the reason for the change;

(C)

whom to notify with questions concerning the change; and

(D)

instructions for return of the drug if not wanted by the patient.

(2)

The pharmacy shall maintain documentation of patient notification of therapeutic drug interchange which shall include:

(A)

the date of the notification;

(B)

the method of notification;

(C)

a description of the change; and

(D)

the reason for the change.

(e)

Transfer of Prescription Drug Order Information. Unless compliance would violate the pharmacy or drug laws or rules in the state in which the pharmacy is located, a pharmacist in a Class E pharmacy may not refuse to transfer prescriptions to another pharmacy who is making the transfer request on behalf of the patient.

(f)

Prescriptions for Schedule II controlled substances. Unless compliance would violate the pharmacy or drug laws or rules in the state in which the pharmacy is located, a pharmacist in a Class E pharmacy who dispenses a prescription for a Schedule II controlled substance issued on a Texas Official Prescription Form shall:

(1)

mail a copy of the form to the Texas Department of Public Safety, Electronic Prescription Section, P.O. Box 4087, Austin, Texas 78773 within 30 days of dispensing; or

(2)

electronically send the prescription information to the Texas Department of Public Safety per their requirements for electronic submissions within 30 days of dispensing.

§291.105.Records.

(a)

Maintenance of records.

(1)

Every record required to be kept under this section shall be kept by the pharmacy and be available, for at least two years from the date of such record, for inspecting and copying by the board or its representative, and other authorized local, state, or federal law enforcement agencies.

(2)

Records, except when specifically required to be maintained in original or hard-copy form, may be maintained in an alternative data retention system, such as a data processing system or direct imaging system provided;

(A)

the records maintained in the alternative system contain all of the information required on the manual record; and

(B)

the data processing system is capable of producing a hard copy of the record upon the request of the board, its representative, or other authorized local, state, or federal law enforcement or regulatory agencies.

(b)

Civil litigation and complaint records. A Class E pharmacy shall keep a permanent record of:

(1)

any civil litigation commenced against the pharmacy by a Texas resident; and

(2)

complaints that arise out of a prescription for a Texas resident lost during delivery.

(c)

Confidentiality.

(1)

A Class E pharmacy shall provide adequate security of prescription drug order and patient medication records to prevent indiscriminate or unauthorized access to confidential health information. If prescription drug orders, requests for refill authorization, or other confidential health information are not transmitted directly between a pharmacy and a physician but are transmitted through a data communication device, confidential health information may not be accessed or maintained by the operator of the data communication device unless specifically authorized to obtain the confidential information by this subsection.

(2)

Confidential records are privileged and may be released only to:

(A)

the patient or the patient's agent;

(B)

practitioners and other pharmacists if, in the pharmacist's professional judgment, the release is necessary to protect the patient's health and well-being;

(C)

the board or to a person or another state or federal agency authorized by law to receive the confidential record;

(D)

a law enforcement agency engaged in investigation of a suspected violation Chapter 481 or 483, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801 et seq.);

(E)

a person employed by a state agency that licenses a practitioner, if the person is performing the person's official duties; or

(F)

an insurance carrier or third party payer authorized by a patient to receive such information.

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 December 23, 1999.

TRD-9909027

Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028


Chapter 309. GENERIC SUBSTITUTION

22 TAC §309.3

The Texas State Board of Pharmacy proposes amendments to Section 309.3 regarding refills of prescription drug orders. The proposed rule, if adopted, will amend the current language in §309.3(d)(2), which the Texas State Board of Pharmacy has been enjoined from enforcing, and will establish the list of narrow therapeutic index drugs subject to the provisions of §562.014 of the Texas Pharmacy Act (Occupations Code, Subtitle J, Chapters 551-567), as enacted by the 75th Legislature in Senate Bill 609.

Section 562.014 of the Texas Pharmacy Act requires that the Texas State Board of Pharmacy, in consultation with the Texas State Board of Medical Examiners, establish by rule a list of narrow therapeutic index drugs. The proposed amendments incorporate the recommendations of representatives of the Texas State Board of Pharmacy and the Texas State Board of Medical Examiners. Two members of each Board met and unanimously recommended that no drugs should be included on a list of narrow therapeutic index drugs as defined in §562.014 of the Texas Pharmacy Act (Occupations Code, Subtitle J, Chapters 551-567) and that the Federal Food and Drug Administration guidelines be recognized as the authority to determine generic equivalency.

This proposed amendment differs from two previous proposed rules which established a list of nine narrow therapeutic index drugs. This action was recommended by the Texas State Board of Pharmacy and Texas State Board of Medical Examiners representatives after reviewing summaries of extensive testimony received during two public hearings on the two previous proposed rules. The representatives also noted the following in their recommendations to the Board: (1) the Texas State Board of Pharmacy has never received a documented report of adverse health problems to a patient caused by the legal substitution of two drugs which are rated as generically equivalent by the Federal Food and Drug Administration in its publication, "Approved Drug Products with Therapeutic Equivalence Evaluations;" (2) the Federal Food and Drug Administration notes in their comments to previous proposed rules and in a January 28, 1998 letter that ". . . there are no documented examples of a generic product manufactured to meet its approved specifications that could not be used interchangeably with the corresponding brand-name drug;" (3) current rules in the Texas Administrative Code regarding substitution of generically equivalent drug products specify that pharmacists may only substitute products that are rated therapeutically equivalent in the "Approved Drug Products with Therapeutic Equivalence Evaluations" and its current supplements; (4) practitioners may prohibit substitution either by signing on the "Dispense as Written" line of a written prescription or by clearly indicating on an oral prescription that the brand name product must be dispensed; (5) the presence of certain drugs on a list of narrow therapeutic index drugs could leave practitioners with the impression that such drugs require less monitoring, which could result in problems; (6) the agency has received a letter from Senator Frank Madla, the author of Senate Bill 609, 75th Legislative Session, which stated that a null list would be appropriate and acceptable if the Board in its expert opinion determines that no special handling is warranted for any drug marketed as a generic substitute; and (7) the Texas State Board of Pharmacy in consultation with the Texas State Board of Medical Examiners would review the matter again if the Federal Food and Drug Administration determines that certain drug products require different steps when substituting equivalent products.

Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for the first five-year period the rule is in effect, there will not be fiscal implications for state or local governments since the proposed amendment makes no changes to current requirements for generic substitution.

Ms. Dodson also 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 generic substitution in Texas.

Comments on the proposal may be submitted to Gay Dodson, R.Ph., Executive Director, Texas State Board of Pharmacy, 333 Guadalupe Street, Suite 3-600, Box 21, Austin, Texas, 78701-3942.

The amendments are proposed under the following provisions of the Texas Pharmacy Act (Occupations Code, Subtitle J, Chapters 551-567): §554.002 which the Board interprets to mean that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; §554.051 which the Board interprets to give the Board the authority to adopt rules for the proper administration and enforcement of the Act; and; §562.014 which authorizes the Board, in consultation with the Texas State Board of Medical Examiners, to establish by rule a list of narrow therapeutic index drugs.

The statutes affected by this rule: Texas Pharmacy Act (Occupations Code, Subtitle J, Chapters 551-567)

§309.3.Prescription Drug Orders.

(a)-(c)

(No change.)

(d)

Refills.

(1)

(No change.)

(2)

Narrow therapeutic index drugs.

(A)

The board, in consultation with the Texas State Board of Medical Examiners, has determined that no drugs shall be included on a list of narrow therapeutic index drugs as defined in Section 562.013, Occupations Code. The board has specified in Section 309.7 of this title (relating to dispensing responsibilities) that pharmacist shall use as a basis for determining generic equivalency, Approved Drug Products with Therapeutic Equivalence Evaluations and current supplements published by the Federal Food and Drug Administration, within the limitations stipulated in that publication.

(i)

Pharmacists may only substitute products that are rated therapeutically equivalent in the Approved Drug Products with Therapeutic Equivalence Evaluations and current supplements.

(ii)

Practitioners may prohibit substitution either by signing on the "Dispense as Written" line of a written prescription drug order or by clearly indicating on an oral prescription drug order that the brand name product must be dispensed.

(B)

The board shall reconsider the contents of the list if the Federal Food and Drug Administration determines a new equivalence classification which indicates that certain drug products are equivalent but special notification to the patient and practitioner is required when substituting these products.

[(A)

A prescription for a narrow therapeutic index drug on which a physician has originally allowed generic substitution may be refilled only by using the same drug product by the same manufacturer that the pharmacist last dispensed under the prescription, unless otherwise agreed to by the prescribing physician, prior to dispensing.]

[(B)

If a pharmacist does not have the same drug product by the same manufacturer in stock to refill the prescription, the pharmacist may dispense a drug product that is generically equivalent if the pharmacist notifies:]

[(i)

the patient, at the time the prescription is dispensed, that a substitution of the prescribed drug product has been made; and]

[(ii)

the prescribing practitioner of the drug product substitution by telephone, facsimile, or mail, at the earliest reasonable time, but not later than 72 hours after dispensing the prescription.]

[(C)

For the purpose of this subsection, narrow therapeutic index drugs shall be all oral dosage forms of the following:]

[(i)

digoxin;]

[(ii)

phenytoin;]

[(iii)

warfarin sodium;]

[(iv)

theophylline;]

[(v)

levothyroxine;]

[(vi)

carbamazepine;]

[(vii)

valproic acid;]

[(viii)

lithium;]

[(ix)

divalproex sodium.]

[(D)

The board, in consultation with the Board of Medical Examiners, shall review the list of narrow therapeutic index drugs subject to this subsection when deemed appropriate but at least every two years.]

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 December 23, 1999.

TRD-9909028

Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

Earliest possible date of adoption: February 6, 2000

For further information, please call: (512) 305-8028