TEXAS STATE BOARD OF PHARMACY
Health Professions Council Board Room
333 Guadalupe Street, Tower II, Suite 225
Austin, Texas
May 7, 2013
MINUTES
1
Tuesday, May 7, 2013
President Jeanne D. Waggener, R.Ph., called the meeting to order at 9:02 a.m.
Other Board Members present were Vice President Dennis F. Wiesner, R.Ph.;
Treasurer Buford T. Abeldt, Sr., R.Ph.; W. Benjamin Fry, R.Ph.; Alice Mendoza, R.Ph.;
L. Suzan Kedron; Joyce A. Tipton, R.Ph.; Charles Wetherbee; and Phyllis A. Stine.
Executive Director/Secretary Gay Dodson, R.Ph., was not present.
Staff present were Cathy Stella, Director of Licensing and Administrative Services;
Carol Fisher, R.Ph., M.P.A., Director of Enforcement; Allison Benz, R.Ph., M.S.,
Director of Professional Services; Kerstin Arnold, General Counsel; Steve Rapp,
Director of Information Technology; Paul Holder, R.Ph., Pharm.D., Assistant Director
of Enforcement; Caroline Hotchkiss, Staff Attorney; Kerry Sullivan, Litigation Counsel;
Tyler Vance, Staff Attorney; Stacy Martyak, Staff Attorney; and Becky Damon,
Executive Assistant.
Also present was Pharmacist Intern Jacqueline Waters.
A. Announcements
● President Waggener made general announcements.
● Announcements were made concerning Board Members and staff.
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See agenda and corresponding attachments for supporting materials.TSBP Board Business Meeting
Minutes/May 7, 2013
Page 2
● Ms. Benz made an announcement concerning continuing education credit
for attending the Board Meeting.
B. Discussion and Approval of Minutes of Previous Meetings (Tab 01)
Following discussion, the motion was made by Mr. Fry to approve the minutes of
the TSBP Public Hearing held February 5, 2013; the minutes of the TSBP Board
Business Meeting held February 5, 2013; and the minutes of the Temporary
Suspension Hearing held March 4, 2013, concerning Express Rx Pharmacy and
Esther Chinedozi Amaka, R.Ph., as presented.
The motion was seconded by Ms. Tipton and passed unanimously.
C. Discussion of and Possible Action Regarding Rules
Final Adoption of Rules
● Rules Concerning Definitions of Discipline Authorized (§281.61) (Tab 02)
Ms. Benz explained that the Board voted to propose the amendments to
§281.61 during its February 5, 2013, meeting. The proposed
amendments were published in the March 8, 2013, issue of the Texas
Register, and no comments were received.
Ms. Benz directed the Board’s attention to amendments to §281.61 and
explained that the amendments add registrants to the definitions.
Following discussion and review of the Preambles and Orders Adopting
Rules, the motion was made by Ms. Kedron to approve for adoption, by
Board Order, amendments to §281.61. The motion was seconded by
Mr. Abeldt and passed unanimously.
● Rules Concerning Operational Standards (§291.33) (Tab 03)
Ms. Benz explained that the Board voted to propose the amendments to
§291.33 during its February 5, 2013, meeting. The proposed
amendments were published in the March 8, 2013, issue of the Texas
Register, and comments in support of the changes were received from
H.E.B. Pharmacy and the Coalition for Nurses in Advanced Practice.
Ms. Benz directed the Board’s attention to amendments to §291.33 and
explained the amendments clarify and update the section to be consistent
with other sections; require documentation of a consultation with a
prescriber regarding a prescription; change the days supply for alternate
labeling from 34 day supply or 100 dosage units whichever is less to a 90
day supply.TSBP Board Business Meeting
Minutes/May 7, 2013
Page 3
Following discussion and review of the Preambles and Orders Adopting
Rules, the motion was made by Mr. Fry to approve for adoption, by Board
Order, amendments to §291.33, as revised. The motion was seconded by
Ms. Mendoza and passed unanimously.
● Rules Concerning Records (§291.34) (Tab 04)
Ms. Benz explained that the Board voted to propose the amendments to
§291.34 during its February 5, 2013, meeting. The proposed
amendments were published in the March 8, 2013, issue of the Texas
Register, and comments were received from American Pharmaceutical
Services an Omnicare Company; H.E.B. Pharmacy; the National
Association of Chain Drug Stores; and the Joint Committee on Internship
Programs.
Ms. Benz directed the Board’s attention to amendments to §291.34 and
explained that the amendments clarify and update the section to be
consistent with other sections of this title and DPS and DEA laws/rules;
require documentation of a consultation with a prescriber regarding a
prescription; add rules regarding auto-refill programs; and update the
rules regarding prescription transfers including no longer allowing interns
to transfer prescriptions, specifying that the transfer must be confirmed by
each pharmacist, and holding both the transferring and receiving
pharmacist responsible for a dispensing error involving a transferred
prescription.
Following discussion of the rule and the comments on the rule the motion
was made by Mr. Wetherbee to withdraw proposed amendments to
§291.34. The motion was seconded by Mr. Fry and passed unanimously.
Mr. Wiesner made a motion to propose amendments to §291.34
incorporating the withdrawn language and rewording the language for the
transfer of prescriptions to incorporate the comments by allowing a
pharmacist intern under the supervision of a pharmacist to transfer a
prescription to a pharmacist. The motion was seconded by Mr. Abeldt
and passed 7-1-0, with Mr. Fry opposing.
Mr. Wetherbee made a motion to propose amendments to §291.34
incorporating the comments on auto refills to allow prescriptions for
schedule IV and Schedule V controlled substances to be dispensed by an
auto refill program if a pharmacist determines dispensing would be
appropriate, and to add the patient’s agent to the rule. The motion was
seconded by Ms. Tipton and passed unanimously.
Mr. Fry suggested that the auto refill provision should be added to the
Class E rules. The Board directed staff to bring suggested rule language
to the August 2013 Board meeting.TSBP Board Business Meeting
Minutes/May 7, 2013
Page 4
Following discussion the Board recommended establishing a task force to
review current rules relating to electronic prescription transfers between
pharmacies not owned by the same entity.
● Rules Concerning Continuing Education Requirements for Pharmacy
Technicians (§297.8) (Tab 05)
Ms. Benz explained that the Board voted to propose the amendments to
§297.8 during its February 5, 2013, meeting. The proposed amendments
were published in the March 8, 2013, issue of the Texas Register, and no
comments were received.
Ms. Benz directed the Board’s attention to amendments to §297.8 and
explained that the amendments require the law portion of the continuing
education requirements for pharmacy technicians to be regarding Texas
pharmacy law.
Following discussion and review of the Preambles and Orders Adopting
Rules, the motion was made by Ms. Mendoza to approve for adoption, by
Board Order, amendments to §297.8. The motion was seconded by
Mr. Wiesner and passed unanimously.
Proposal of Rules
● Rules Concerning Mental or Physical Examinations (§281.6) (Tab 06)
Ms. Arnold directed the Board’s attention to suggested amendments to
§281.6 and explained that the amendments specifies the procedures to
follow for a mental or physical examination.
Following discussion, the motion was made by Mr. Wetherbee to approve
for proposal amendments to §281.6, as presented. The motion was
seconded by Mr. Fry and passed unanimously.
● Rules Concerning Informal Disposition of a Contested Case (§281.22)
(Tab 07)
Ms. Benz directed the Board’s attention to suggested amendments to
§281.22 and explained that the amendments correct the citation
reference.
Following discussion, the motion was made by Ms. Tipton to approve for
proposed amendments to §281.22, as presented. The motion was
seconded by Mr. Abeldt and passed unanimously. TSBP Board Business Meeting
Minutes/May 7, 2013
Page 5
● Rules Concerning Criminal Offenses (§281.63) (Tab 08)
Ms. Benz directed the Board’s attention to suggested amendments to
§281.63 and explained that the amendments correct wording.
Following discussion, the motion was made by Mr. Wetherbee to approve
for proposal amendments to §281.63, as presented. The motion was
seconded by Ms. Stine and passed unanimously.
● Rules Concerning Reinstatement (§281.66) (Tab 09)
Ms. Arnold directed the Board’s attention to suggested amendments to
§281.66 and explained that the amendments differentiate the
reinstatement requirements for individuals with criminal offenses and
individuals without criminal offenses.
Following discussion, the motion was made by Mr. Fry to approve for
proposal amendments to §281.66, as presented. The motion was
seconded by Mr. Abeldt and passed unanimously.
● Rules Concerning Sanctions for Out-of-State Disciplinary Actions
(§281.67) (Tab 10)
Ms. Benz directed the Board’s attention to suggested amendments to
§281.67 and explained that the amendments correct references.
Following discussion, the motion was made by Mr. Fry to approve for
proposal amendments to §281.67, as presented. The motion was
seconded by Mr. Wetherbee and passed unanimously.
● Rules Concerning Inventory Requirements (§291.17) (Tab 11)
Ms. Benz directed the Board’s attention to suggested amendments to
§291.17 and explained that the amendments clarify the requirements for
notarization of inventories.
Following discussion, the Board directed staff to make changes to the rule
language with regard to the definition of working days. The Board
directed staff to bring suggested rule language to the August 2013 Board
meeting.
Rule Review
● Ms. Benz presented the proposed Rule Review Plan for FY2014-2017.
(Tab12)TSBP Board Business Meeting
Minutes/May 7, 2013
Page 6
President Waggener recessed the meeting at 10:20 a.m.
President Waggener reconvened the meeting at 10:30 a.m.
E. Discussion of and Possible Action Concerning the Following Reports and
Discussions
● Discussion of the Pharmacists to Technician Ratio (Tab 19)
Ms. Benz presented information concerning the history of technicians in
Texas and a report on the pharmacy technician ratios in other states.
Ms. Benz directed the Board’s attention to a report presented by Dennis
` McAllister at the February Board Meeting concerning technician ratios,
and to comments received from Brookshire Brothers Pharmacy and the
Texas Pharmacy Association.
The president recognized Dennis McAllister, R.Ph., with Express Scripts
who presented a White Paper concerning pharmacy technicians.
The president recognized the following persons who presented oral
remarks to the Board regarding the pharmacist to technician ratio:
Name
Lugina Mendez-Harper, R.Ph., Prime Therapeutics
Susan Del Monico, R.Ph., CVS Caremark
Jeff Mesaros, R.Ph., Medco Health
Kim Caldwell, R.Ph., Humana
Joe DaSilva, Texas Pharmacy Association
Mary Staples, R.Ph., National Association Chain Drug Stores
Greg Myhra, R.Ph., Wal-mart Pharmacies
Keith Moseley, R.Ph., Brookshire Brothers
Julie Spier, R.Ph., Texas Federation of Drug Stores
Michele Farmer-Driscoll,R.Ph., Walgreens Pharmacies
Debbie Mack, R.Ph., Wal-mart Pharmacies
Doug Read, R.Ph., H.E.B. Pharmacy
Following discussion, the motion was made by Mr. Fry to direct
staff to draft proposed amendments to §291.32 to change the ratio of
pharmacists to technicians to a 1:4 ratio for Class A and Class B
pharmacies, with a 1:2 ratio for pharmacists to technician trainees, and
a 1:8 ratio for Class G pharmacies. The motion was seconded by
Mr. Wetherbee and passed unanimously.
President Waggener recessed the meeting at 12:12 p.m.TSBP Board Business Meeting
Minutes/May 7, 2013
Page 7
President Waggener reconvened the meeting at 1:03 p.m.
Ms. Mendoza left the meeting at 1:05 p.m.
● Professional Recovery Network
○ Dr. Holder discussed performance measures regarding the number
of individuals participating in the peer assistance program for the
past three fiscal years (FY2010-2012) as well as the quarterly
report on the number of pharmacists participating in the program
during FY2013. (Tab 17)
○ President Waggener recognized Courtney Hulbert, Director of the
Professional Recovery Network (PRN). Ms. Hulbert directed the
Board’s attention to the PRN budget report for the first two quarters
of FY2013, September 1, 2012, through February 28, 2013, and
reviewed current PRN activities for the Board. (Tab 18)
E. Disciplinary Orders
● Consideration of Proposal for Decision
○ In the Matter of James Robert Mitchell, Technician
Registration #126695 (Tab 25)
Ms. Arnold advised the Board that a hearing was held before State
Office of Administrative Hearings (SOAH) Administrative Judge
Steven M. Rivas on December 10, 2012, in the matter of pharmacy
technician James Robert Mitchell.
Mr. Vance reviewed the background in the case for the Board. He
directed the Board’s attention to proposed Board Order #T-11-079,
which he reviewed for the Board.
Following discussion, the motion was made by Mr. Fry to accept
the Findings of Fact and Conclusions of Law in the Proposal for
Decision and approve Board Order #T-11-079, as presented, in the
matter of James Robert Mitchell, to impose a suspension for a
period of one year, with the suspension being probated with
conditions. The motion was seconded by Mr. Abeldt and passed
unanimously.TSBP Board Business Meeting
Minutes/May 7, 2013
Page 8
D. Discussion of and Possible Action Concerning Reports of
Committees/Task Forces
● Task Force on Pharmacy Compounding (Tab 13)
Ms. Benz reported the Task Force met on April 9, 2013, and the Task
Force’s final report is scheduled to be presented at the August 6, 2013,
Board Meeting.
E. Discussion of and Possible Action Concerning the Following Reports and
Discussions (cont’d)
● Financial Update
○ Review of FY2013 Operating Budget (Tab 14)
Ms. Stella reviewed the expenditures for the first two quarters of
FY2013 (September 1, 2012, through February 28, 2013) for the
Board.
○ Review of Board Member Travel Budget (Tab 15)
Ms. Stella reviewed the Board Member FY2013 Travel Budget.
○ Update on Legislative Appropriations Request for FY2014-2015
(Tab 16)
Ms. Stella presented a report comparing the recommendations
from the House of Representatives and the Senate concerning the
Legislative Appropriations Request for FY2014-2015.
Ms. Stella presented a draft of fee changes which might be
required depending on appropriations approved.