THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DeLUCA, CIVERA, DALEY, FABRIZIO, W. KELLER, KORTZ, KULA, MANN, MELIO, M. O'BRIEN, REICHLEY, SIPTROTH, STABACK, STURLA AND WALKO, FEBRUARY 19, 2009

REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, FEBRUARY 19, 2009  

AN ACT

Amending the act of September 27, 1961 (P.L.1700, No.699),

entitled "An act relating to the regulation of the practice

of pharmacy, including the sales, use and distribution of

drugs and devices at retail; and amending, revising,

consolidating and repealing certain laws relating thereto,"

further providing for definitions; providing for registration

and permits for pharmacy technicians; and further providing

for multiple licensure, for refusal to grant, revocation and

suspension, for State Board of Pharmacy, for hearings and

suspensions, for unlawful acts and for injunction.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 2 of the act of September 27, 1961 (P.L.

1700, No.699), known as the Pharmacy Act, is amended by adding

clauses to read:

Section 2.  Definitions.--As used in this act:

* * *

(10.1)  "Pharmacy technician" means an individual who is

registered by the Sate Board of Pharmacy under section 2.1 to

assist in the practice of pharmacy.

(10.2)  "Pharmacy technician trainee" means an individual who

holds a temporary permit issued by the State Board of Pharmacy

under section 2.1.

(10.3)  "Direct and personal supervision of a pharmacist"

means:

(i)  review by the pharmacist of the prescription or drug

order prior to dispensing;

(ii)  verification by the pharmacist of the final product;

and

(iii)  availability of the pharmacist on the premises to

direct the work of the supervised individual and to respond to

questions or problems.

* * *

Section 2.  The act is amended by adding a section to read:

Section 2.1.  Registration and Permits for Pharmacy

Technicians.--(a)  The board may register as a pharmacy

technician a person who:

(1)  Pays an application fee prescribed by the department.

(2)  Files an application for registration, subscribed by the

individual under oath or affirmation, containing information the

board requires.

(3)  Except as set forth in subsection (b), complies with all

of the following:

(i)  Is not less than eighteen years of age and is a legal

resident of the United States.

(ii)  Has a high school diploma or its equivalent.

(iii)  Has satisfied the board that the applicant is of good

moral character and is not unfit or unable to practice as a

pharmacy technician by reason of the extent or manner of the

applicant's use of alcoholic beverages or controlled substances

or by reason of a physical or mental disability.

(iv)  has completed a pharmacy technician training program

approved by the board.

(v)  Has received certification from a nationally recognized

certifying agency approved by the board.

(vi)  Has successfully completed an examination approved by

the board and administered in accordance with the requirements

set forth in section 812.1(a) of the act of April 9, 1929 (P.L.

177, No.175), known as "The Administrative Code of 1929."

(vii)  Has not been convicted of a felonious act prohibited

by the act of April 14, 1972 (P.L.233, No.64), known as "The

Controlled Substance, Drug, Device and Cosmetic Act," or

convicted of a felony relating to a controlled substance in a

court of law of the United States or any other state, territory

or country unless:

(A)  at least ten years have elapsed from the date of

conviction; and

(B)  the applicant satisfactorily demonstrates to the board

that the applicant has made significant progress in personal

rehabilitation since the conviction such that licensure of the

applicant should not be expected to create a substantial risk of

harm to the health and safety of patients or the public or a

substantial risk of further criminal violations.

As used in this clause, the term "convicted" shall include a

judgment, an admission of guilt or a plea of nolo contendere. An

applicant's statement on the application declaring the absence

of a conviction shall be deemed satisfactory evidence of the

absence of a conviction, unless the board has some evidence to

the contrary.

(b)  The following exceptions shall apply:

(1)  Notwithstanding subsection (a)(3)(iv) and (v), the board

shall register all of the following:

(i)  An individual who, at the time of filing an application,

has proof of registration, certification or licensure or its

equivalent as a pharmacy technician in another state, territory

or possession of the United States that has registration,

certification, licensure or equivalent requirements comparable

to those set forth in this section and regulations of the board.

(ii)  An individual who:

(A)  applies for registration within two years after the

effective date of this section; and

(B)  on the effective date of this section maintains a

current certification by a nationally recognized pharmacy

technician association.

(2)  Notwithstanding subsection (a)(3)(ii), (iv) and (v), the

board shall issue registration to an individual who:

(i)  Has been employed as a pharmacy technician for a minimum

of two thousand hours during the three years immediately

preceding the enactment of this act.

(ii)  Demonstrates to the satisfaction of the board proof of

practice as a pharmacy technician for at least two thousand

hours immediately prior to the date of application.

(c)  A registration shall authorize the registrant to assist

in the practice of pharmacy under the direct and personal

supervision of a pharmacist.

(d)  A registration is subject to biennial renewal. The board

shall establish by regulation a fee for renewal.

(e)  The following apply to pharmacy technician trainees:

(1)  The board may issue a temporary permit to practice as a

pharmacy technician trainee to an applicant who is seventeen

years of age or older and meets the requirements of subsection

(a)(3)(ii) and (iii) and complies with the following:

(i)  The applicant is a student enrolled in a board-approved

pharmacy technician training program and as part of the program

may be required to serve an externship or internship; or

(ii)  The individual is employed by a pharmacy and

participates in a board-approved pharmacy technician training

program that may include an externship or internship program.

(2)  A temporary practice permit shall be issued for one year

and may be extended for a single six-month period upon

verification to the satisfaction of the board that the trainee

has completed the board-approved training program.

(3)  A temporary permit shall not be reissued.

(4)  A temporary permit shall authorize the permittee to

perform the duties of a pharmacy technician under the direct and

personal supervision of a pharmacist.

(f)  Identification requirements are as follows:

(1)  A pharmacy technician shall wear a name tag that clearly

identifies the temporary permit holder with the title "pharmacy

technician trainee."

(g)  This section shall not apply to a student who is

enrolled in an accredited school of pharmacy and who is in good

standing.

Section 3.  Section 3.2 of the act, added December 20, 1985

(P.L.433, No.111), is amended to read:

Section 3.2.  Reporting of Multiple Licensure, Registration

or its Equivalent.--Any [licensed] pharmacist or pharmacy

technician of this Commonwealth who is also registered,

certified or licensed [to practice pharmacy] in any other state,

territory or country shall report this information to the board

on the biennial registration application. Any disciplinary

action taken in other states, territories and countries shall be

reported to the board on the biennial registration application

or within ninety days of final disposition, whichever is sooner.

Multiple registration, certification or licensure shall be noted

by the board on the [pharmacist's] licensee's or registrant's 

record, and such state, territory or country shall be notified

by the board of any disciplinary actions taken against [said

pharmacist] that licensee or registrant in this Commonwealth.

Section 4.  Section 5(c) of the act, amended December 20,

1985 (P.L.433, No.111), is amended and the section is amended by

adding a subsection to read:

Section 5.  Refusal to Grant, Revocation and Suspension.--* * *

(a.1)  The board shall have the power to refuse, revoke or

suspend the registration of any pharmacy technician upon proof

satisfactory to it that the pharmacy technician has done any of

the following:

(1)  Procured a personal registration through fraud,

misrepresentation or deceit.

(2)  Has been found guilty, pleaded guilty, entered a plea of

nolo contendere, or has received probation without verdict,

disposition in lieu of trial or an Accelerated Rehabilitation

Disposition in the disposition of felony charges, to any offense

in connection with the practice of pharmacy or any offense

involving moral turpitude before any court of record of any

jurisdiction.

(3)  Is unfit to practice as a pharmacy technician because of

intemperance in the use of alcoholic beverages, controlled

substances or any other substance which impairs the intellect

and judgment to such an extent as to impair the performance of

professional duties.

(4)  Is unfit or unable to practice as a pharmacy technician

by reason of a physical or mental disease or disability. In

enforcing this clause, the board shall, upon probable cause,

have authority to compel a pharmacy technician to submit to a

mental or physical examination by physicians or psychologists

approved by the board. Failure of a pharmacy technician to

submit to an examination when directed by the board, unless due

to circumstances beyond the pharmacy technician's control, shall

constitute an admission of the allegations against the pharmacy

technician, consequent upon which a default and final order may

be entered without the taking of testimony or presentation of

evidence. A pharmacy technician affected under this clause shall

at reasonable intervals be afforded an opportunity to

demonstrate the ability to resume a competent practice as a

pharmacy technician with reasonable skill and safety to

patients.

(5)  Has had a registration, certification or license to

practice as a pharmacy technician denied, revoked or suspended

by an appropriate pharmacy technician registration,

certification or licensing authority or has received

disciplinary action from an appropriate pharmacy technician

registration, certification or licensing authority.

(6)  Has acted in such a manner as to present an immediate

and clear danger to the public health or safety.

(7)  Is guilty of incompetence, gross negligence or other

malpractice, or the departure from, or failure to conform to,

the standards of acceptable and prevailing pharmacy technician

practice, in which case actual injury need not be established.

* * *

(c)  When the board finds that the registration,

certification or license [of any pharmacist] may be refused,

revoked or suspended under the terms of subsection (a) or (a.1),

the board may:

(1)  Deny the application for a registration, certification

or license.

(2)  Administer a public reprimand.

(3)  Revoke, suspend, limit or otherwise restrict a

registration, certification or license as determined by the

board.

(4)  Require a licensee to submit to the care, counseling or

treatment of a physician or a psychologist designated by the

board. This clause does not apply to a pharmacy technician.

(5)  Suspend enforcement of its finding thereof and place a

licensee on probation with the right to vacate the probationary

order for noncompliance.

(6)  Restore or reissue, in its discretion, a suspended

license [to practice pharmacy] or registration and impose any

disciplinary or corrective measure which it might originally

have imposed.

* * *

Section 5.  Section 6(k) of the act, amended December 20,

1985 (P.L.433, No.111), is amended to read:

Section 6.  State Board of Pharmacy.--* * *

(k)  The board shall have the power, and it shall be its

duty:

(1)  To regulate the practice of pharmacy and of pharmacy

technicians;

(2)  To determine the nature of examinations for all

applicants for [pharmacists'] licenses;

(3)  To examine, inspect and investigate all applications and

all applicants for licensure as pharmacists, pharmacies or

registration as pharmacy interns and pharmacy technicians, and 

to grant certificates of licensure or registration to all

applicants whom it shall judge to be properly qualified;

(4)  With the approval of the Commissioner of Professional

and Occupational Affairs, to prepare position descriptions,

employ inspectors who shall be licensed pharmacists and employ

appropriate consultants to assist it for any purposes which it

may deem necessary, provided that the board may not delegate any

of its final decisionmaking responsibilities to any consultant;

(5)  To investigate or cause to be investigated all

violations of the provisions of this act and its regulations and

to cause prosecutions to be instituted in the courts upon advice

from the Attorney General;

(6)  To make or order inspections of all pharmacies, except

health care facilities, as defined in the act of July 19, 1979

(P.L.130, No.48), known as the "Health Care Facilities Act," and

which are periodically inspected by the Department of Health in

accordance with the standards in this act and the board's

regulations promulgated thereto: Provided, That the Department

of Health shall forward a copy of their inspection report to the

board noting any violations of the act: And, provided further,

That, if a violation is reported, the board shall have the power

to inspect such pharmacies and take appropriate action as

specified in this act; and to make or order inspections of other

places in which drugs or devices are stored, held, compounded,

dispensed or sold to a consumer, to take and analyze any drugs

or devices and to seize and condemn any drugs or devices which

are adulterated, misbranded or stored, held, dispensed,

distributed or compounded in violation of the provisions of this

act or the provisions of the act of April 14, 1972 (P.L.233, No.

64), known as "The Controlled Substance, Drug, Device and

Cosmetic Act";

(7)  To conduct hearings for the revocation or suspension of

licenses, permits or registrations, for which hearings the board

shall have the power to subpoena witnesses;

(8)  To assist the regularly constituted enforcement agencies

of this Commonwealth in enforcing all laws pertaining to drugs,

controlled substances, and practice of pharmacy;

(8.1)  To approve programs for the training of pharmacy

technicians;

(9)  To promulgate rules and regulations to effectuate the

purposes of this act and to regulate the distribution of drugs

and devices and the practice of pharmacy for the protection and

promotion of the public health, safety and welfare.

* * *

Section 6.  Section 7 of the act is amended by adding a

subsection to read:

Section 7.  Hearings and Suspensions.--* * *

(e)  Notwithstanding any other provision, subsections (d.3),

(d.4), (d.5), (d.6), (d.7) and (d.8) shall not apply to pharmacy

technicians, except as those subsections relate to the

professional health monitoring program.

Section 7.  Sections 8(2) and (8) and 8.1 of the act, amended

or added December 20, 1986 (P.L.433, No.111), are amended to

read:

Section 8.  Unlawful Acts.--It shall be unlawful for:

* * *

(2)  Any person not duly licensed as a pharmacist, pursuant

to section 3 hereof, to engage in the practice of pharmacy,

including the preparing, compounding, dispensing, selling or

distributing at retail to any person any drug, except by a

pharmacy intern, pharmacy technician or such other authorized

personnel under the direct and [immediate] personal supervision

of a pharmacist: Provided, however, That nothing herein shall be

construed to prevent a duly licensed medical practitioner from

dispensing, compounding or otherwise giving any drug to his own

patients after diagnosis or treatment of said patient, if such

compounding, preparing and dispensing is done by said licensee

himself, nor shall anything herein prevent any person from

selling or distributing at retail household remedies or

proprietary medicines when the same are offered for sale or sold

in the original packages which have been put up ready for sale

to consumers, provided household remedies or proprietary

medicines shall not include any controlled substances or non-

proprietary drug under the act of April 14, 1972 (P.L.233, No.

64), known as "The Controlled Substance, Drug, Device and

Cosmetic Act."

* * *

(8)  Any person, firm or corporation to use the title

"pharmacist", "assistant pharmacist", "pharmacy technician",

"pharmacy technician trainee", "druggist"[,] or "apothecary",

except a person duly licensed as a pharmacist or registered as a

pharmacy technician in Pennsylvania, or any person to conduct or

transact business under a name which contains as part thereof

the words "drug store", "pharmacy", "drugs", "medicine store",

"medicines", "drug shop," "apothecary," "pharmaceutical,"

"homeopathic," "homeopathy" or any term having a similar

meaning, or in any manner by advertisement, display of show

globes or otherwise describe or refer to the place of the

conducted business or person, unless the place is a pharmacy

duly issued a permit by the State Board of Pharmacy.

* * *

Section 8.1.  Injunction.--It shall be unlawful for any

person to practice or attempt to offer to practice pharmacy or

as a pharmacy technician, as defined in this act, without having

at the time of so doing a valid, unexpired, unrevoked and

unsuspended license or registration issued under this act. The

unlawful practice of pharmacy as defined in this act may be

enjoined by the courts on petition of the board or the

Commissioner of Professional and Occupational Affairs. In any

such proceeding it shall not be necessary to show that any

person is individually injured by the actions complained of. If

it is found that the respondent has engaged in the unlawful

practice of pharmacy, the court shall enjoin him or her from so

practicing unless and until he or she has been duly licensed.

Procedure in such cases shall be the same as in any other

injunction suit. The remedy by injunction hereby given is in

addition to any other civil or criminal prosecution and

punishment.

Section 8.  No person is required to be registered as a

pharmacy technician under section 2.1 of the act until two years

after the State Board of Pharmacy has promulgated regulations

under section 8 of this act. 

Section 9.  The State Board of Pharmacy shall promulgate

regulations to implement the addition of section 2.1 of the act

within 18 months of the effective date of this section. The

addition of section 2.1 of the act shall not be enforceable by

the State Board of Pharmacy until the publication of final

regulations. 

Section 20.  This act shall take effect in 60 days.