CHAPTER 36-11
PHARMACIES AND PHARMACISTS
36-11-1 Public interest in regulation of practice.
36-11-2 Definition of terms.
36-11-2.1 Drugs defined.
36-11-2.2 Practice of pharmacy defined.
36-11-3 South Dakota Pharmacists Association--Purpose--Annual meeting.
36-11-4 Composition of State Board of Pharmacy--Terms and appointment of members--Removal of member.
36-11-4.1 Lay member of board--Appointment and term of office.
36-11-5 Meetings of board--Quorum.
36-11-5.1 Board continued within Department of Health--Records and reports.
36-11-6 Use of funds by Pharmacists Association--Approval of expenditures--Filing statement.
36-11-7 Salary and expenses of secretary.
36-11-8 Compensation of personnel from fees received.
36-11-9 Annual report to Governor--Contents.
36-11-10 Residual and implied powers of board.
36-11-11 Promulgation of rules.
36-11-12 36-11-12. Repealed by SL 1986, ch 302, § 112.
36-11-13 Unregistered practice of pharmacy as misdemeanor.
36-11-14 Physicians and veterinarians unaffected by chapter.
36-11-15 Unregistered dispensing of drugs or operation of pharmacy as misdemeanor.
36-11-16 Requirements for registration as pharmacist.
36-11-16.1 Criminal background investigation of applicants for licensure and licensees under disciplinary investigation--Fees.
36-11-17 Registration fee.
36-11-18 Examination of applicants for registration--Grant of certificates to qualified persons.
36-11-19 Registration of applicants registered in other states--Fee.
36-11-19.1 Authority of registered pharmacists.
36-11-19.2 Nonresident pharmacy defined.
36-11-19.3 Requirements for licensure of nonresident pharmacy.
36-11-19.4 Denial of nonresident pharmacy's application--Appeal.
36-11-19.5 Expiration and renewal of nonresident pharmacy license.
36-11-19.6 Conduct causing denial, revocation, or suspension of nonresident pharmacy license--Contested case.
36-11-19.7 Nonresident pharmacy dispensing equivalent drug product or interchangeable biological product.
36-11-19.8 Recording patient information--Toll-free telephone service--Written information on new or changed prescriptions.
36-11-19.9 Designation of resident agent for nonresident pharmacy.
36-11-20 Suspension, revocation, or refusal of license--Grounds--Fraudulent registration void.
36-11-20.1 36-11-20.1, 36-11-20.2. Repealed by SL 1996, ch 227, § 17.
36-11-20.3 36-11-20.3 to 36-11-20.10. Repealed by SL 1996, ch 227, §§ 18 to 25.
36-11-21 Continuing validity of prior certificates.
36-11-22 Registration record maintained by board--Contents.
36-11-23 Annual registry fee and renewal--Suspension of certificate for failure to renew--Reinstatement after suspension.
36-11-23.1 Continuing education program established.
36-11-23.2 Rules relating to continuing education--Maximum annual requirement.
36-11-23.3 Continuing education required for relicensure.
36-11-23.4 Advisory council on continuing education.
36-11-24 36-11-24. Repealed by SL 1970, ch 212, § 1.
36-11-25 Pharmacy intern certificates--Restrictions on practice.
36-11-26 Board power to discipline registrant.
36-11-27 36-11-27. Repealed by SL 1982, ch 275, § 3.
36-11-28 Procedure for revocation or suspension of certificate.
36-11-29 Appeal from revocation or suspension of certificate.
36-11-30 Registration and permit required for operation of pharmacy--Violation as misdemeanor.
36-11-31 Business name or advertising implying pharmacy prohibited unless registered--Violation as misdemeanor.
36-11-32 Pharmacy permit issued by board--Fee.
36-11-33 Institutional pharmacy permits--Scope of services provided--Minimum standards.
36-11-34 Ownership or control by pharmacist required for pharmacy permit.
36-11-35 Pharmacy permit as legal registration--Expiration date.
36-11-36 Permit and certificate displayed in pharmacy.
36-11-37 Transfer of pharmacy permit to another pharmacist.
36-11-38 Permit void after death of pharmacist--Time allowed for transfer.
36-11-39 Report to board of changes in location or ownership of pharmacy.
36-11-40 Permit void on unreported transfer, change of location or change in management.
36-11-41 Equipment, supplies and publications required for pharmacy permit.
36-11-42 Sanitary conditions required in pharmacy.
36-11-43 Code of professional ethics--Association recommendations considered--Employment rights not regulated--No basis for criminal prosecution.
36-11-44 Permitting unauthorized practice or false representation to secure registration as misdemeanor.
36-11-45 36-11-45. Repealed by SL 1985, ch 300.
36-11-46 Dispensing of substandard drugs prohibited--Violation as misdemeanor.
36-11-46.1 Dispensing equivalent drug products.
36-11-46.2 Prescription prohibiting substitution--Requirements.
36-11-46.3 Notification to person receiving equivalent drug product or interchangeable biological product--Right of refusal.
36-11-46.4 Standards for selecting prescription drug.
36-11-46.5 Liability for dispensing equivalent drug product or interchangeable biological product.
36-11-46.6 Label to contain drug name--Form when generic equivalent selected--Contents of prescription files--Label information.
36-11-46.7 Equivalent drug and biological product requirements not applicable to hospital patients.
36-11-46.8 Cause of action for selection of equivalent drug product or interchangeable biological product.
36-11-46.9 Dispensing interchangeable biological products.
36-11-46.10 Notice to practitioner of biological product dispensed.
36-11-46.11 Labeling of prescription container for biological product.
36-11-47 36-11-47. Repealed by SL 1977, ch 190, § 170.
36-11-47.1 Posting of prescription drug prices authorized--Rules and regulations.
36-11-47.2 Refusal to quote prescription price as misdemeanor.
36-11-48 Grounds for suspension or revocation of pharmacy permit.
36-11-49 Procedure for revocation of pharmacy permit.
36-11-50 Appeal from cancellation of pharmacy permit.
36-11-51 Repealed by SL 2012, ch 194, §§ 11, 12.
36-11-53 36-11-53 to 36-11-59. Repealed by SL 1997, ch 216, §§ 5 to 11.
36-11-60 Repealed by SL 2012, ch 194, §§ 13, 14.
36-11-62 36-11-62. Repealed by SL 1992, ch 158, § 88.
36-11-63 Fees paid to secretary of board--Employment of personnel and payment of expenses from funds collected.
36-11-64 Employment of inspectors--Inspection of licensed establishments.
36-11-65 Injunction proceedings to prevent violations of chapter--Election of remedies.
36-11-66 Severability of provisions.
36-11-67 Participants in drug utilization review program immune from liability.
36-11-68 Counseling patients and caregivers--Maintenance of patient records.
36-11-69 Release of patient information--Good faith required.
36-11-70 Refusal to dispense medication.
36-11-71 Central pharmacy, remote pharmacy, and telepharmacy practice defined.
36-11-72 Telepharmacy--Promulgation of rules.
36-11-1. Public interest in regulation of practice.
The practice of pharmacy in South Dakota is hereby declared to be a professional practice affecting the public health, safety, and welfare and is subject to regulation in the public interest.
Source: SL 1967, ch 102, § 1.
36-11-2. Definition of terms.
Terms used in this chapter mean:
(1) "Association," the South Dakota Pharmacists Association;
(2) "Biological product," as defined in 42 U.S.C. 262(i), as of January 1, 2018;
(3) "Board" or "board of pharmacy," the State Board of Pharmacy in South Dakota;
(4) "Brand name," the proprietary or registered trademark name given to a drug product by its manufacturer, labeler or distributor and placed on the drug or on its container, label or wrapping at the time of packaging;
(5) "Chemicals," the chemical materials or medicine;
(6) "Compounding," the preparation, mixing, assembling, packaging or labeling of a drug or drug device as the result of a practitioner's prescription drug order or an initiative based on the pharmacist/patient/practitioner relationship in the course of professional practice or for the purpose of or as an incident to research, teaching or chemical analysis and not for sale or dispensing. The term also includes the preparation of drug or drug devices in anticipation of prescription drug orders based on routine, regularly observed prescribing patterns;
(7) "Delivery," the actual, constructive or attempted transfer of a drug or drug device from one person to another, whether or not for a consideration;
(8) "Dispense" or "Dispensing," the preparation and delivery of a drug to a patient or a patient's agent pursuant to a prescription drug order in a suitable container with appropriate labeling for subsequent administration to or use by a patient. The term includes preparation of labels for drug devices if the labeling is related to the dosage and administration of drugs;
(9) "Distributing," the delivery of a drug or drug device other than by administration or dispensing;
(10) "Drug administration," the direct application of a drug or drug device by injection, inhalation, ingestion or any other means to the body of a patient or research subject;
(11) "Drug device," equipment, process, biotechnological entity, diagnostic agent or other product used in combination with a drug to provide effective management of medication regimens;
(12) "Drug utilization review program," any program operated solely or partially as a professional standards review organization whose purpose is to educate pharmacists and practitioners on severe adverse reactions to drugs, therapeutic appropriateness, overutilization and underutilization, appropriate use of generic products, therapeutic duplication, drug-disease contraindications, drug-drug interactions, incorrect drug dosage or duration of drug treatment, drug-allergy interactions and clinical abuse or misuse, as well as to identify and reduce the frequency of patterns of potential and actual fraud, abuse, gross overuse, inappropriate care or medically unnecessary care associated with specific drugs or groups of drugs among practitioners, pharmacists and patients;
(13) "Equivalent drug product," a drug product, other than a biological product, that is considered to be therapeutically equivalent to other pharmaceutically equivalent products as determined by the latest edition of Approved Drug Products with Therapeutic Equivalence Evaluations, as adopted by the board pursuant to chapter 1-26;
(14) "Interchangeable biological product," a biological product that the U.S. Food and Drug Administration either has licensed and determined meets the standards for interchangeability pursuant to 42 U.S.C. 262(k)(4), as of January 1, 2018, or has determined is therapeutically equivalent as set forth in the latest edition of, or any supplement to, the Food and Drug Administration's Approved Drug Products with Therapeutic Equivalence Evaluations publication as adopted by the board pursuant to chapter 1-26;
(15) "Labeling," the process of preparing and affixing a label to any drug or drug device container exclusive of the labeling by the manufacturer, packer or distributor of a nonprescription drug or commercially packaged legend drug or drug device;
(16) "Medical device," an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related article, including any component, part or accessory, that is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease in man or other animals or is intended to affect the structure or any function of the body of man or other animals, that does not achieve any of its principal intended purposes through chemical action within or on the body of man or other animals and that is not dependent upon being metabolized for achievement of any of its principal intended purposes;
(17) "Medicines," drugs or chemicals or their preparations in suitable form for the prevention, relief or cure of diseases when used either internally or externally by man or for animals;
(18) "Nonprescription drugs," drugs that are labeled for use by the general public in accordance with § 502 of the Federal Food, Drug and Cosmetic Act as amended through January 1, 1997, and may be sold without a prescription drug order in accordance with § 503 of the Federal Food, Drug and Cosmetic Act as amended through January 1, 1997. The term does not include drugs which are required by federal law to bear the statement, "Caution: federal law prohibits dispensing without prescription," drugs intended for human use by hypodermic injection, or animal remedies regulated by chapter 39-18;
(19) "Patient counseling," oral communication by the pharmacist of information to the patient or caregiver, as defined in rules promulgated pursuant to chapter 1-26, to improve therapy by ensuring proper use of drugs and drug devices;
(20) "Pharmaceutical care," provision of drug therapy and other pharmaceutical patient care services intended to achieve outcomes related to cure or prevention of a disease, elimination or reduction of a patient's symptoms or arresting or slowing of a disease process;
(21) "Pharmacist," a person licensed by the board to engage in the practice of pharmacy;
(22) "Pharmacy," any place within or outside this state licensed by the board where drugs are dispensed and pharmaceutical care is provided to residents of this state;
(23) "Practitioner," a person licensed, registered or otherwise authorized by the jurisdiction in which the person is practicing to prescribe drugs in the course of professional practice;
(24) "Prescription drug order," a written or oral order of a practitioner for a drug or drug device for a specific patient;
(25) "Proper name," the nonproprietary name for a biological product designated by the U.S. Food and Drug Administration license for use upon each package of the product;
(26) "Registered pharmacy technician," a person registered by the board who is employed by a pharmacy to assist licensed pharmacists in the practice of pharmacy by performing specific tasks delegated by and under the immediate personal supervision and control of a licensed pharmacist, as permitted by the board;
(27) "Retail place of business," any place where merchandise is sold at retail and from which original packages of nonprescription drugs are sold or taken to be sold at retail;
(28) "Reverse distributor," any person or business registered with the Drug Enforcement Administration that accepts drug products from vendors and returns the drug products to manufacturers for credit or destruction.
Source: SDC 1939, § 27.1001; SL 1967, ch 102, § 2; SL 1973, ch 244, §§ 1, 6; SL 1974, ch 249; SL 1978, ch 271, § 2; SL 1983, ch 271; SL 1986, ch 306, § 3; SL 1986, ch 310; SL 1990, ch 306, § 1; SL 1992, ch 270, § 1; SL 1993, ch 277, § 1; SL 1993, ch 278, § 4; SL 1997, ch 216, § 1; SL 2003, ch 203, § 1; SL 2004, ch 248, § 1; SL 2012, ch 194, § 9; SL 2018, ch 231, § 1.
36-11-2.1. Drugs defined.
Drugs are defined as follows:
(1) Articles recognized in the official United States Pharmacopoeia or the official National Formulary, as adopted by the board of pharmacy pursuant to chapter 1-26, or recognized in the official Homeopathic Pharmacopoeia of the United States as in effect on January 1, 1993;
(2) Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals;
(3) Articles (other than food) intended to affect the structure or any functions of the human body; and
(4) Articles intended for use as a component of any articles specified in this section.
The term "drugs" excludes medical devices.
Source: SL 1993, ch 278, § 3.
36-11-2.2. Practice of pharmacy defined.
The practice of pharmacy means:
(1) Interpretation and evaluation of prescription drug orders and dispensing in the patient's best interest;
(2) Provision of patient counseling and pharmaceutical care; and
(3) The responsibility for compounding, distributing, labeling, and storage of drugs and for maintaining proper records for them.
The practice of pharmacy does not authorize a pharmacist to prescribe drugs as a practitioner or to dispense drugs without a prescription drug order.
Nothing in this section may be construed to prevent or restrict the practices, services, or activities of a person licensed in this state by any other law from engaging in the profession or occupation for which he is licensed if he is performing services within his authorized scope of practice.
Source: SL 1993, ch 278, § 1.
36-11-3. South Dakota Pharmacists Association--Purpose--Annual meeting.
Those registered pharmacists of this state electing to participate shall constitute an association under the name and title of the South Dakota Pharmacists Association. The purpose of the association is to serve as the state professional society of pharmacists which represents the profession of pharmacy, enhances the public's awareness of pharmacy, and serves the best interest of public health and pharmacy. The South Dakota Pharmacists Association shall be conducted as a nonprofit corporation pursuant to the terms of its articles of incorporation. The members of the association who have secured a current annual certificate of registration to practice pharmacy in this state and who have elected to participate in the association are entitled to all of the rights and privileges of the association and may vote, serve as an officer or director of the association, and participate in all of the meetings of the association. The association shall hold an annual meeting at such time and place as it determines.
Source: SDC 1939, § 27.1002; SL 1967, ch 102, § 3; SL 1996, ch 230, § 1; SL 2005, ch 199, § 31.
36-11-4. Composition of State Board of Pharmacy--Terms and appointment of members--Removal of member.
The State Board of Pharmacy shall include four professional members who shall hold their offices for terms of three years or until their successors are appointed and qualified. No member may serve more than three consecutive full terms. The appointment of a person to an unexpired term is not considered a full term. The Governor may remove any member of the board for just cause.
Source: SDC 1939, § 27.1003; SL 1967, ch 102, § 4; revised pursuant to SL 1973, ch 2, § 58; SL 2005, ch 199, § 32; SL 2007, ch 213, § 2.
36-11-4.1. Lay member of board--Appointment and term of office.
The membership of the Board of Pharmacy shall include one lay member who is a user of the services regulated by the board. The term lay member who is a user refers to a person who is not licensed by the board but where practical uses the service licensed, and the meaning shall be liberally construed to implement the purpose of this section. The lay member shall be appointed by the Governor and shall have the same term of office as other members of the board.
Source: SL 1973, ch 2, § 58.
36-11-5. Meetings of board--Quorum.
The Board of Pharmacy shall hold meetings for the examination of applicants for registration and the transaction of such other business as shall pertain to its duties. Special meetings of the board may be held whenever it shall be deemed necessary by a majority of the members thereof. Two members of such board shall constitute a quorum.
Source: SL 1967, ch 102, § 5.
36-11-5.1. Board continued within Department of Health--Records and reports.
The Board of Pharmacy shall continue within the Department of Health, and shall retain all its prescribed functions, including administrative functions. The board shall submit such records, information, and reports in the form and at such times as required by the secretary of health, except that the board shall report at least annually.
Source: SL 1973, ch 2, § 56 (n); SL 2003, ch 272, § 42.
36-11-6. Use of funds by Pharmacists Association--Approval of expenditures--Filing statement.
The board may, upon receipt, pay to the South Dakota Pharmacists Association eighty percent of all fees the board receives for renewals of certificates of registration as a pharmacist. The association shall use the funds for the following association activities to benefit the public and the profession: continuing education, matters related to registration standards for pharmacists, professional service standards, and general operating expenses related to the activities enumerated in this section. The association shall also use funds received to pay any legislated assessment to support a diversion program for chemically impaired pharmacists. Expenditures of funds shall be approved by the president and treasurer of the association. The association shall annually file in the office of the board an itemized statement of the receipts of the association and disbursements from the receipts.
Source: SDC 1939, § 27.1004; SL 1967, ch 102, § 5; SL 1996, ch 230, § 2; SL 2005, ch 199, § 33.
36-11-7. Salary and expenses of secretary.
The secretary of the Board of Pharmacy shall receive a salary which shall be fixed by the board. He shall also receive his traveling and other expenses incurred in the performance of his official duties pursuant to § 3-9-2.
Source: SDC 1939, § 27.1005; SL 1967, ch 102, § 6; SL 1986, ch 27, § 27.
36-11-8. Compensation of personnel from fees received.
Expenses and compensation for services of the board, its inspectors, employees, and legal counsel shall be paid from the fees received by the board from license, registration, and other fees, and no part thereof shall be paid out of the general fund.
Source: SDC 1939, § 27.1005; SL 1967, ch 102, § 6.
36-11-9. Annual report to Governor--Contents.
The Board of Pharmacy shall report annually to the Governor as provided by law for state officers and boards.
Source: SL 1967, ch 102, § 5; revised pursuant to SL 1971, ch 10; SL 2005, ch 199, § 34.
36-11-10. Residual and implied powers of board.
The Board of Pharmacy shall have all other powers and authority expressly conferred upon it or reasonably implied from the provisions of this chapter.
Source: SL 1967, ch 102, § 5.
36-11-11. Promulgation of rules.
The Board of Pharmacy may promulgate rules pursuant to chapter 1-26:
(1) Pertaining to the practice of pharmacy;
(2) Relating to the sanitation of persons and establishments licensed under the provisions of this chapter;
(3) Pertaining to establishments licensed under the provisions of this chapter wherein any drug is compounded, prepared, dispensed or sold;
(4) Providing for minimum equipment and standards of establishments licensed under the provisions of this chapter;
(5) Pertaining to the sale of drugs by or through any mechanical device;
(6) In cooperation with other governmental agencies where there exists a joint responsibility for protecting the public health and welfare;
(7) Pertaining to the sale of nonprescription drugs;
(8) To adopt such publications or supplements thereto as shall from time to time be deemed necessary to describe the drugs, medicines, prescription drugs, dispensing physician or other terms defined in § 36-11-2;
(9) Pertaining to the posting of prescription prices on the premises of a pharmacy department to provide consumers with comparative pricing information;
(10) Pertaining to registration of drug wholesalers and manufacturers;
(11) Pertaining to home health care and service;
(12) Pertaining to computerized pharmacy;
(13) Pertaining to the registration of registered pharmacy technicians; an annual registration fee not to exceed thirty dollars; and tasks that may not be delegated by a licensed pharmacist to a registered technician;
(14) Redispensing of pharmaceuticals; and
(15) Pertaining to the dispensing of biological products.
Source: SDC 1939, § 27.1006; SL 1967, ch 102, § 7; SL 1973, ch 244, § 2; SL 1986, ch 302, § 111; SL 1990, ch 325, § 1; SL 1997, ch 216, § 2; SL 2004, ch 248, § 2; SL 2004, ch 249, § 1; SL 2012, ch 194, § 10; SL 2018, ch 231, § 2; SL 2021, ch 168, § 24.
36-11-13. Unregistered practice of pharmacy as misdemeanor.
It is a Class 2 misdemeanor for any person other than a pharmacist registered under the laws of South Dakota to engage in the practice of pharmacy except as provided by § 36-11-14.
Source: SDC 1939, § 27.1013; SL 1964, ch 86; SL 1967, ch 102, § 14; SL 1977, ch 190, § 166; SL 1993, ch 278, § 5.
36-11-14. Physicians and veterinarians unaffected by chapter.
Nothing in this chapter applies to or in any manner interferes with the business of any physician, as a physician, or any licensed veterinarian, as a licensed veterinarian, or an optometrist, as a licensed optometrist, or prevent him from supplying, under his supervision, to his patients such drugs and medicines as may seem to him proper.
Source: SDC 1939, § 27.1013; SL 1964, ch 86; SL 1967, ch 102, § 14; SL 1986, ch 306, § 4.
36-11-15. Unregistered dispensing of drugs or operation of pharmacy as misdemeanor.
Any person other than a registered pharmacist who compounds or dispenses drugs, medicines, or poisons, or who keeps a pharmacy or store for retailing or compounding medicines, or who takes, uses or exhibits the title of a registered pharmacist is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 27.9922; SL 1967, ch 102, § 21; SL 1977, ch 190, § 167.
36-11-16. Requirements for registration as pharmacist.
Any person of good moral character and temperate habits, not less than eighteen years of age, who is a graduate of a college of pharmacy recognized and approved by the board, and who has had the necessary experience as determined by the board in the practice of pharmacy under a regularly licensed pharmacist in a pharmacy where physicians' prescriptions are compounded and who shall pass a satisfactory examination prescribed by the State Board of Pharmacy, shall be entitled to a certificate of registration as a licensed pharmacist. The board shall have the authority to allow credit for suitable military and research activities in the field of pharmacy as part of the experience requirement.
Source: SDC 1939, § 27.1007; SL 1967, ch 102, § 9; revised pursuant to SL 1972, ch 15, § 4; SL 2020, ch 168, § 7.
36-11-16.1. Criminal background investigation of applicants for licensure and licensees under disciplinary investigation--Fees.
Each applicant for licensure as a pharmacist in this state shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. Upon application, the board shall submit completed fingerprint cards to the Division of Criminal Investigation. Upon completion of the criminal background check, the Division of Criminal Investigation shall forward to the board all information obtained as a result of the criminal background check. This information shall be obtained prior to permanent licensure of the applicant. The board may require a state and federal criminal background check for any licensee who is the subject of a disciplinary investigation by the board. Failure to submit or cooperate with the criminal background investigation is grounds for denial of an application or may result in revocation of a license. The applicant shall pay for any fees charged for the cost of fingerprinting or the criminal background investigation.
Source: SL 2012, ch 193, § 5.
36-11-17. Registration fee.
Every person initially applying for a certificate of registration with the Board of Pharmacy as a registered pharmacist shall pay to the board with the application a fee, not to exceed thirty-five dollars, set by the board by rule promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 27.1010; SL 1967, ch 102, § 10; SL 1988, ch 301, § 1; SL 2008, ch 191, § 25.
36-11-18. Examination of applicants for registration--Grant of certificates to qualified persons.
It shall be the duty of the Board of Pharmacy to examine all applications for registration submitted in due form as provided in the rules and regulations of the board and to grant certificates of registration to such persons as may be entitled to the same under the provisions of this chapter.
Source: SDC 1939, § 27.1004; SL 1967, ch 102, § 5.
36-11-19. Registration of applicants registered in other states--Fee.
The Board of Pharmacy may in its discretion grant certificates of registration to such persons as shall furnish with their applications satisfactory proof that they have been registered by examination in some other state; provided that such other state required a degree of competency at the time such person was licensed at least equal to that required of licentiates in this state at that same time. The State Board of Pharmacy, in order to be informed, may, in determining the degree of fitness required by the several states' boards of pharmacy for granting license and reciprocal registration, join with other states' boards of pharmacy. Every person applying for registration pursuant to this section shall pay to the board upon application a fee, not to exceed one hundred fifty dollars, set by the board by rule promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 27-.1007; SL 1967, ch 102, § 9; SL 1986, ch 302, § 114; SL 2008, ch 191, § 26.
36-11-19.1. Authority of registered pharmacists.
Registered pharmacists may:
(1) Perform drug administration pursuant to a prescription drug order. The Board of Pharmacy shall establish standards for drug administration pursuant to chapter 1-26 with the approval of a committee composed of two persons appointed by the Board of Pharmacy, two persons appointed by the Board of Nursing and two persons appointed by the Board of Medical and Osteopathic Examiners;
(2) Perform drug reviews;
(3) Perform or participate in scientific or clinical drug or drug-related research as an investigator or in collaboration with other investigators;
(4) Interpret and apply pharmacokinetic data and other pertinent laboratory data to design safe and effective drug dosage regimens;
(5) Participate in drug and drug device selection pursuant to a prescription drug order;
(6) Initiate or modify drug therapy by protocol or other legal authority established and approved within a licensed health care facility or by a practitioner authorized to prescribe drugs; and
(7) Provide information on prescription drugs, which may include advising, consulting, and educating, as necessary or as required, patients, the public, and other health care providers on the rational, safe and cost-effective use of drugs, including therapeutic values, content, hazards and appropriate use.
Source: SL 1993, ch 278, § 2.
36-11-19.2. Nonresident pharmacy defined.
For purposes of §§ 36-11-19.2 to 36-11-19.9, inclusive, a nonresident pharmacy is any pharmacy located outside this state that:
(1) Ships, mails, or delivers any dispensed drug to a resident in this state pursuant to a legally issued prescription; and
(2) Provides to a resident of this state information on drugs or devices including advice relating to therapeutic values, potential hazards, and uses; or
(3) Counsels pharmacy patients residing in this state concerning adverse and therapeutic effects of drugs.
Source: SL 1997, ch 217, § 1.
36-11-19.3. Requirements for licensure of nonresident pharmacy.
Any nonresident pharmacy shall be licensed before conducting business in this state. The Board of Pharmacy shall issue a license to any nonresident pharmacy which meets the requirements of §§ 36-11-19.2 to 36-11-19.9, inclusive. In order to be licensed by the board to do business in this state, a nonresident pharmacy shall:
(1) Be licensed and in good standing in the state in which its dispensing facilities are located;
(2) Comply with all applicable laws, rules, and standards of that state and the United States, and if requested by the board, provide evidence that it has complied; and
(3) Submit an application upon a form prescribed by the Board of Pharmacy and pay a fee set by the board.
The application shall include information on ownership and location of the pharmacy, the identity of licensed pharmacist in charge of the pharmacy, identity of licensed pharmacists who are providing services to patients residing in this state, and provide a copy of the most recent inspection report resulting from an inspection conducted by the regulatory or licensing agency of the state in which it is located. The board shall establish pursuant to chapter 1-26 the application fee, which may not be greater than that assessed resident pharmacies.
Source: SL 1997, ch 217, § 2.
36-11-19.4. Denial of nonresident pharmacy's application--Appeal.
The board may approve, approve with conditions, or deny the application for licensure or renewal of licensure as a nonresident pharmacy based on information concerning the qualifications of the applicant provided in the application. An applicant may appeal the decision of the board regarding licensure or renewal of licensure pursuant to contested case procedure in chapter 1-26.
Source: SL 1997, ch 217, § 3.
36-11-19.5. Expiration and renewal of nonresident pharmacy license.
Each nonresident pharmacy license expires on June thirtieth following the date of issue. The board shall mail an application for license renewal to each licensee before June first of each year. If application for renewal of the license accompanied by the annual license fee is not made before the expiration date, the existing license lapses on the date of expiration.
Source: SL 1997, ch 217, § 4.
36-11-19.6. Conduct causing denial, revocation, or suspension of nonresident pharmacy license--Contested case.
The board may deny, revoke, or suspend a nonresident pharmacy registration for conduct which causes serious bodily injury or serious psychological injury to a resident of this state if the board has referred the matter to the regulatory or licensing agency in the state in which the nonresident pharmacy is located and the regulatory or licensing agency fails to initiate an investigation within forty-five days after the referral. Any action taken to deny, revoke, or suspend a nonresident pharmacy registration is a contested case proceeding pursuant to chapter 1-26.
Source: SL 1997, ch 217, § 5.
36-11-19.7. Nonresident pharmacy dispensing equivalent drug product or interchangeable biological product.
No nonresident pharmacy may dispense an equivalent drug product or an interchangeable biological product if a brand name has been prescribed, unless the dispensing is done in compliance with the laws of this state nor may dispense an equivalent drug product or an interchangeable biological product to a resident of this state without informing the patient of the selection and the right to refuse the product selected either by telephone or in writing.
Source: SL 1997, ch 217, § 6; SL 2018, ch 231, § 3.
36-11-19.8. Recording patient information--Toll-free telephone service--Written information on new or changed prescriptions.
A nonresident pharmacy shall obtain, record, and maintain pertinent patient information. The pharmacy shall provide patients a written offer to consult and access to a toll-free telephone service to facilitate communications between the patient and the pharmacist at the pharmacy. The number of the toll-free telephone service shall be printed on a label affixed to each container of a prescription drug dispensed by the pharmacy to a patient. The toll-free telephone service shall be available for a minimum of six days a week and forty hours a week.
In addition, a nonresident pharmacy shall provide the patient written information about the medication on all new or changed prescriptions. The information shall include directions for storage and use, precautions and relevant warnings about drug interactions and common side effects, and directions for patient action if the patient misses a scheduled dose of the prescription.
Source: SL 1997, ch 217, § 7.
36-11-19.9. Designation of resident agent for nonresident pharmacy.
A nonresident pharmacy shall designate a resident agent in this state for service of process. If an agent is not designated, the secretary of state of this state shall be considered to be its agent, upon whom may be served all legal process in any action or proceeding against the nonresident pharmacy. A copy of any service of process shall be mailed by certified mail, return receipt requested, postage prepaid, at the address the nonresident pharmacy has designated on its application for licensure. If any nonresident pharmacy is not licensed in this state, service on the secretary of state is sufficient service.
Source: SL 1997, ch 217, § 8.
36-11-20. Suspension, revocation, or refusal of license--Grounds--Fraudulent registration void.
The Board of Pharmacy may, in compliance with chapter 1-26, suspend, revoke, or refuse to grant a license or certificate of registration to any person guilty of a felony or a misdemeanor involving moral turpitude, or who is addicted to the use of alcoholic liquors or narcotic drugs to such an extent as to render him unfit to practice pharmacy with reasonable skill and safety; and the board may, in compliance with chapter 1-26, revoke a license for like cause, or any license which has been procured by fraud or by false representation. Any license or registration, or renewal thereof, obtained through fraud or by any fraudulent or false representations shall be void. The board may suspend, revoke or refuse to grant a license or certificate of registration to any person permitting or engaging in the unauthorized sale of legend or controlled drugs or substances or who the board finds to be in violation of any law, rule, or regulation governing pharmacists.
Source: SL 1967, ch 102, § 5; SL 1982, ch 275, § 1.
36-11-21. Continuing validity of prior certificates.
Nothing in this chapter shall be construed to invalidate any certificate of registration in force on July 1, 1967.
Source: SDC 1939, § 27.1007; SL 1967, ch 102, § 9.
36-11-22. Registration record maintained by board--Contents.
The Board of Pharmacy shall keep a record of registration in which shall be entered the names and places of business of all persons registered under this chapter which records shall also specify such facts as such persons shall claim to justify their registration.
Source: SL 1967, ch 102, § 5.
36-11-23. Annual registry fee and renewal--Suspension of certificate for failure to renew--Reinstatement after suspension.
Each pharmacist shall annually by October first each year, pay to the board a registry fee to be fixed by the board in compliance with chapter 1-26, not to exceed one hundred fifty dollars. Upon payment of the fee by a pharmacist, the Board of Pharmacy shall renew the pharmacist's certificate of registration. Any pharmacist who fails to pay the renewal fee by the due date is subject to suspension of certificate by the board in compliance with chapter 1-26. Any suspended certificate may be reinstated if all delinquent fees have been paid, plus a penalty of twenty- five dollars, and the Board of Pharmacy has approved the application for reinstatement.
Source: SDC 1939, § 27.1009; SL 1953, ch 121; SL 1967, ch 102, § 10; revised pursuant to SL 1972, ch 15, § 4; SL 1988, ch 301, § 2; SL 1996, ch 230, § 3; SL 2005, ch 199, § 35.
36-11-23.1. Continuing education program established.
There is hereby established a program of continuing education for licensed pharmacists within this state.
Source: SL 1977, ch 296, § 1.
36-11-23.2. Rules relating to continuing education--Maximum annual requirement.
The State Board of Pharmacy shall promulgate rules pertaining to continuing education of pharmacists. Such continuing education program shall not exceed twelve hours in length in any one year.
Source: SL 1977, ch 296, § 3; SL 1986, ch 302, § 113.
36-11-23.3. Continuing education required for relicensure.
As of October 1, 1980, no active pharmacist shall be eligible for relicensure in this state unless the pharmacist has met the continuing education requirements established by the State Board of Pharmacy.
Source: SL 1977, ch 296, § 2.
36-11-23.4. Advisory council on continuing education.
There is hereby established an advisory council to the State Board of Pharmacy consisting of two pharmacists appointed by the State Board of Pharmacy, two pharmacists appointed by the state college of pharmacy and four pharmacists appointed by the South Dakota Pharmacists Association who shall serve without compensation and whose duties shall be to advise the State Board of Pharmacy in the establishment and accreditation of programs of continuing education.
Source: SL 1977, ch 296, § 4.
36-11-25. Pharmacy intern certificates--Restrictions on practice.
Pharmacy intern certificates may be issued by the Board of Pharmacy to persons who are gaining experience as a qualification for licensure as a registered pharmacist. Any pharmacy intern granted an intern certificate shall perform his internship pursuant to regulations which shall be promulgated by the Board of Pharmacy. Nothing in this section shall be construed as giving such pharmacy intern authority to fill any prescription, except under the supervision and in the presence of the registered pharmacist.
Source: SDC 1939, § 27.1008; SL 1955, ch 92; SL 1961, ch 130; SL 1967, ch 102, § 11; SL 1970, ch 212, § 2.
36-11-26. Board power to discipline registrant.
If the Board of Pharmacy is satisfied that any person holding a certificate of registration is for any reason incompetent or disqualified to perform the duties of a registered pharmacist pursuant to § 36-11-20 or as contemplated by the provisions of this chapter, it may, in compliance with § 36-11-28:
(1) Issue a reprimand to the registrant;
(2) Place the registrant on probation and supervision;
(3) Suspend the registrant's certificate until he completes a course of therapy, treatment, training, or any combination thereof;
(4) Suspend the registrant's certificate for a fixed period; and
(5) Revoke the registrant's certificate.
Source: SDC 1939, § 27.1011; SL 1959, ch 132; SL 1967, ch 102, § 12; SL 1982, ch 275, § 2; SL 1986, ch 311.
36-11-28. Procedure for revocation or suspension of certificate.
A certificate of registration as a pharmacist shall not be revoked or suspended except after hearing before the Board of Pharmacy at which a majority of its members are present and in compliance with chapter 1-26.
Source: SDC 1939, § 27.1011; SL 1959, ch 132; SL 1967, ch 102, § 12; revised pursuant to SL 1972, ch 15, § 4.
36-11-29. Appeal from revocation or suspension of certificate.
An appeal from the decision of the Board of Pharmacy may be taken as provided by chapter 1-26.
Source: SDC 1939, § 27.1011; SL 1959, ch 132; SL 1967, ch 102, § 12; revised pursuant to SL 1972, ch 15, § 4.
36-11-30. Registration and permit required for operation of pharmacy--Violation as misdemeanor.
No pharmacy shall open or be kept open for transaction of business until it has been registered and a permit issued by the State Board of Pharmacy.
A violation of this section is a Class 2 misdemeanor. Each day of violation is a separate offense.
Source: SDC 1939, § 27.1012; SL 1967, ch 102, § 13; SL 1992, ch 158, § 82.
36-11-31. Business name or advertising implying pharmacy prohibited unless registered--Violation as misdemeanor.
No person, copartnership or corporation may carry on, conduct, or transact business under a name which contains as a part thereof the term or words "drug department," "drugstore" or "pharmacy" or any term implying the operation of a pharmacy or drugstore, or in any manner by advertisement, circular, poster, sign or otherwise describe or refer to a place of business by the terms "drugstore" or "pharmacy" or any other term or words which may be applied to establishments where drugs, medicines, and poisons are usually dispensed or distributed, unless the place of business so conducted is a pharmacy duly authorized and registered by the State Board of Pharmacy. A violation of this section is a Class 2 misdemeanor.
Source: SDC 1939, § 27.1017; SL 1967, ch 102, § 17; SL 1992, ch 158, § 83.
36-11-32. Pharmacy permit issued by board--Fee.
Upon a form prescribed by the State Board of Pharmacy and the payment of a fee, not to exceed two hundred dollars, set by the Board of Pharmacy in accordance with chapter 1-26, the State Board of Pharmacy shall issue to pharmacists in good standing, registered under the laws of this state, a permit to conduct a pharmacy.
Source: SDC 1939, § 27.1015; SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15; SL 1975, ch 236; SL 1984, ch 251; SL 2008, ch 191, § 27.
36-11-33. Institutional pharmacy permits--Scope of services provided--Minimum standards.
The Board of Pharmacy may issue to pharmacists in good standing a permit to conduct a part-time, limited, or conditional pharmacy in hospitals, nursing homes or related facilities provided that the pharmacy services are limited to patients. A permit to conduct a pharmacy, the merchandise and fixtures of which are owned by a person, firm, or corporation other than a registered pharmacist, upon said registered pharmacist making application for a permit hereunder, may be issued and granted to the said registered pharmacist, on compliance with the provisions of this chapter, and with minimum standards as established by the board.
Source: SL 1967, ch 121, § 15.
36-11-34. Ownership or control by pharmacist required for pharmacy permit.
No permit to conduct a pharmacy shall be issued to any pharmacist applicant unless such pharmacist applicant is owner, or part owner, of the merchandise and fixtures of the place of business for which such pharmacy registration is applied for, or unless application is made jointly with a registered pharmacist owner, or unless the nonpharmacist owner of the merchandise and fixtures of the place of business for which pharmacy registration is applied for, has made affidavit on a form prescribed by the state board of pharmacy delegating complete responsibility for the pharmaceutical services in said place of business to the pharmacist applicant.
Source: SDC 1939, § 27.1014; SL 1967, ch 102, § 15.
36-11-35. Pharmacy permit as legal registration--Expiration date.
Each permit for a pharmacy shall constitute and signify a legal registration for the pharmacy to which it applies, and shall expire on the last day of June following the date of issue.
Source: SDC 1939, § 27.1015; SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-36. Permit and certificate displayed in pharmacy.
Each permit for a pharmacy, together with a certificate naming the pharmacist actively conducting said pharmacy, issued by the State Board of Pharmacy, which shall be a part of said permit, shall be exposed in a conspicuous place in the pharmacy to which it applies.
Source: SDC 1939, § 27.1015; SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-37. Transfer of pharmacy permit to another pharmacist.
Each permit for a pharmacy may be transferred to another pharmacist in good standing and registered under the laws of this state without the payment of an additional fee; provided an application for the transfer of said permit is made upon a form prescribed by the State Board of Pharmacy and filed with the secretary thereof not less than ten days before the transfer of such active management is made.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-38. Permit void after death of pharmacist--Time allowed for transfer.
In the event of the death of the pharmacist permittee, the pharmacy permit issued to the deceased under this chapter shall, within one hundred twenty days after the death of such permittee, become null and void unless transfer thereof, as provided in § 36-11-37, shall have been made within the said one hundred twenty day period.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-39. Report to board of changes in location or ownership of pharmacy.
The change of location of any pharmacy for which a permit has been issued from one municipality to another within this state, any change in the ownership of such pharmacy, or the cessation of business by such pharmacy shall be reported to the State Board of Pharmacy within ten days from such occurrence on forms prescribed by the State Board of Pharmacy.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-40. Permit void on unreported transfer, change of location or change in management.
Any permit issued under the provisions of § 36-11-32 shall be void if the active management of any pharmacy is changed without the transfer, as provided in § 36-11-37, of the permit therefor, or if the location of said pharmacy is changed without the same being reported as provided in § 36-11-39, or if the pharmacy is kept open for business after the permittee has ceased to be in active management of said pharmacy, and whenever the minimum requirements of this chapter and the Board of Pharmacy are no longer met.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-41. Equipment, supplies and publications required for pharmacy permit.
No permit may be issued under 36-11-32 unless:
(1) The pharmacy is equipped with the pharmaceutical instruments and utensils prescribed by the State Board of Pharmacy, and shall possess a stock of pharmaceuticals adequate to serve the needs of the community in which the pharmacy is located; and
(2) The pharmacy has on file at all times the publications and supplements of formularies and drug information prescribed by the board by rules promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15; SL 1987, ch 271; SL 2003, ch 204, § 1.
36-11-42. Sanitary conditions required in pharmacy.
Any permit issued under the provisions of § 36-11-32 shall be void and subject to cancellation by the State Board of Pharmacy, unless such pharmacy is maintained and operated in a clean and sanitary condition, free from unhealthful, foreign, or injurious contamination.
Source: SDC 1939, § 27.1015 as added by SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15.
36-11-43. Code of professional ethics--Association recommendations considered--Employment rights not regulated--No basis for criminal prosecution.
The Board of Pharmacy may, in the manner provided by chapter 1-26, adopt a code of professional ethics for pharmacists in this state in the practice of their profession. In adopting such code, or any amendments thereafter, the board will consider the recommendations of the South Dakota Pharmacists Association and the vote of its members, provided however, that any such code so adopted shall at no time contain any provision that would in any way restrain, prohibit or attempt to regulate the rights of any pharmacist to be employed in any pharmacy holding a valid pharmacy permit. Violation of the code of professional ethics shall not be the basis for criminal prosecution unless otherwise declared unlawful.
Source: SL 1967, ch 102, § 7 (h); SL 1972, ch 15, § 4.
36-11-44. Permitting unauthorized practice or false representation to secure registration as misdemeanor.
Any registered pharmacist who permits the compounding or dispensing of prescriptions or the vending of drugs or poisons in his store or place of business, except under the personal supervision of a registered pharmacist, or any pharmacist who, while continuing in business, makes any false representations to procure registration for himself or any other person, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 27.9923; SL 1967, ch 102, § 22; SL 1977, ch 190, § 168.
36-11-46. Dispensing of substandard drugs prohibited--Violation as misdemeanor.
No person may compound, dispense, sell, or offer for sale, or cause to be compounded, dispensed, sold or offered for sale any medicine or preparation under or by a name recognized in the United States Pharmacopoeia or National Formulary, for internal or external use, which differs from the standard of strength, quality or purity as determined by the test laid down in the United States Pharmacopoeia or National Formulary, official at the time of such compounding, dispensing, sale, or offering for sale. A violation of this section is a Class 2 misdemeanor.
Source: SL 1967, ch 102, § 20 (b); SL 1978, ch 271, § 1; SL 1992, ch 158, § 84.
36-11-46.1. Dispensing equivalent drug products.
A pharmacist dispensing a prescription drug order for a drug product prescribed by its brand name may select any equivalent drug product, if the manufacturer or distributor of the equivalent drug product holds, if applicable, either an approved new drug application or an approved abbreviated new drug application, unless other approval by law or from the Federal Food and Drug Administration is required.
Source: SL 1978, ch 271, § 3; SL 1993, ch 277, § 2.
36-11-46.2. Prescription prohibiting substitution--Requirements.
A practitioner may prohibit a pharmacist from selecting an equivalent drug product or interchangeable biological product by handwriting on the prescription drug order the words, brand necessary, or words of similar meaning. The prohibition may not be preprinted or stamped on the prescription drug order. This selection does not preclude a reminder of the procedure required for the practitioner to prohibit selection by a pharmacist from being preprinted on the prescription drug order. If an oral prescription is given to a pharmacist, the practitioner or practitioner's authorized agent shall instruct the pharmacist if selection of an equivalent drug product or interchangeable biological product is prohibited. The pharmacist shall note the instructions on the file copy of the prescription drug order.
Source: SL 1978, ch 271, § 4; SL 1990, ch 306, § 2; SL 1993, ch 277, § 3; SL 2018, ch 231, § 4.
36-11-46.3. Notification to person receiving equivalent drug product or interchangeable biological product--Right of refusal.
The pharmacist or the pharmacist's agent shall inform the person receiving the drug or biological product pursuant to the prescription drug order of the selection of an equivalent drug product or interchangeable biological product and of the person's right to refuse the product selected. A pharmacist shall, upon request of the prescribing practitioner, provide information regarding substitutions of equivalent drug products.
Source: SL 1978, ch 271, § 5; SL 1990, ch 306, § 3; SL 1993, ch 277, § 4; SL 2018, ch 231, § 5.
36-11-46.4. Standards for selecting prescription drug.
A pharmacist may not select a product unless it has been manufactured, labeled, or distributed by a manufacturer, labeler, or distributor who:
(1) Marks capsules and tablets with an identification code or monogram;
(2) Labels products with their expiration date;
(3) Provides reasonable services to accept return goods that have reached their expiration date;
(4) Maintains reasonable resources for product information;
(5) Maintains recall capabilities for unsafe or defective drugs; and
(6) Makes available therapeutic equivalency ratings.
Source: SL 1978, ch 271, § 6; SL 1990, ch 306, § 4; SL 1993, ch 277, § 5.
36-11-46.5. Liability for dispensing equivalent drug product or interchangeable biological product.
A pharmacist who selects an equivalent drug product or interchangeable biological product pursuant to this chapter assumes no greater liability for selecting the dispensed drug or biological product than would be incurred in filling a prescription for a drug or biological product prescribed by its established, generic, or proper name.
Source: SL 1986, ch 309; SL 2018, ch 231, § 6.
36-11-46.6. Label to contain drug name--Form when generic equivalent selected--Contents of prescription files--Label information.
The pharmacist shall, unless otherwise instructed by the prescriber, label the prescription container with the name of the dispensed drug. If the dispensed drug does not have a brand name, the prescription label shall indicate the generic name or the United States Pharmacopoeia pharmacy equivalent name of the drug dispensed. If a pharmacist selects a generically equivalent drug product for the brand name drug product prescribed, the prescription container label shall identify the generic name and may identify the brand name for which the selection is made. The dual identification allowed under this section shall take the form of the following statement on the prescription container label: "(generic name) Generic for (brand name)". The pharmacy file copy of each prescription shall include the brand name, if any, or the name of the manufacturer, labeler, or distributor of the drug product dispensed. The prescription container label shall include all information required by federal and state law or by rule promulgated by the board pursuant to chapter 1-26.
Source: SL 1990, ch 306, § 5; SL 1993, ch 278, § 6; SL 2001, ch 201, § 1.
36-11-46.7. Equivalent drug and biological product requirements not applicable to hospital patients.
The requirements of §§ 36-11-46.1 to 36-11-46.3, inclusive, 36-11-46.6, and 36-11-46.9 to 36-11-46.11, inclusive, do not apply to an order to dispense a drug or biological product to a hospital patient.
Source: SL 1990, ch 306, § 6; SL 1993, ch 277, § 6; SL 2018, ch 231, § 7.
36-11-46.8. Cause of action for selection of equivalent drug product or interchangeable biological product.
The selection of an equivalent drug product or interchangeable biological product does not, in itself, in the absence of willful misconduct or negligence, constitute a cause of action against the practitioner.
Source: SL 1993, ch 277, § 7; SL 2018, ch 231, § 8.
36-11-46.9. Dispensing interchangeable biological products.
A pharmacist dispensing a prescription drug order for a biological product prescribed by its brand or proper name may select an interchangeable biological product of the prescribed product. Within five business days following the dispensing of a biological product, the dispensing pharmacist or the pharmacist's designee shall make an entry of the specific product provided to the patient, including the name of the product and the manufacturer. The communication shall be conveyed by making an entry that is electronically accessible to the prescriber through:
(1) An interoperable electronic medical records system;
(2) An electronic prescribing technology;
(3) A pharmacist benefit management system; or
(4) A pharmacy record.
Source: SL 2018, ch 231, § 9.
36-11-46.10. Notice to practitioner of biological product dispensed.
Any entry into an electronic records system as described in § 36-11-46.9 is presumed to provide notice to the practitioner. Otherwise, the pharmacist shall communicate the biological product dispensed to the practitioner using facsimile, telephone, electronic transmission, or other prevailing means, if communication is not required where:
(1) There is no interchangeable biological product approved by the U.S. Food and Drug Administration for the product prescribed; or
(2) A refill prescription is not changed from the product dispensed on the prior filling of the prescription.
Source: SL 2018, ch 231, § 10.
36-11-46.11. Labeling of prescription container for biological product.
The pharmacist shall, unless otherwise instructed by the prescriber, label the prescription container with the name of the dispensed biological product. If the dispensed biological product does not have a brand name, the prescription label shall indicate the proper name of the biological product dispensed. If a pharmacist selects an interchangeable biological product for the brand name biological product prescribed, the prescription container label shall identify the proper name and may identify the brand name for which the selection is made. The dual identification allowed under this section shall take the form of the following statement on the prescription container label: (proper name) interchangeable with (brand name). The pharmacy file copy of each prescription shall include the brand name, if any, or the proper name, and the name of the manufacturer of the biological product dispensed. The prescription container label shall include all information required by federal and state law or by rule promulgated by the board pursuant to chapter 1-26.
Source: SL 2018, ch 231, § 11.
36-11-47.1. Posting of prescription drug prices authorized--Rules and regulations.
The posting of prescription drug prices upon the premises of a duly licensed pharmacy department is hereby specifically authorized and shall not constitute "advertising of prescription prices" within the meaning of this chapter when performed in accordance with such rules and regulations as may be adopted by the State Board of Pharmacy to provide consumers with comparative pricing information.
Source: SL 1973, ch 244, § 5.
36-11-47.2. Refusal to quote prescription price as misdemeanor.
It is a Class 2 misdemeanor for any pharmacist to refuse to quote the price of any prescription legend drug when said quote is requested by a person.
Source: SL 1975, ch 235; SL 1977, ch 190, § 171.
36-11-48. Grounds for suspension or revocation of pharmacy permit.
The State Board of Pharmacy may suspend or revoke any permit obtained by false representations made in the application therefor, or when the pharmacy for which the permit shall be issued is kept open for the transaction of business without a registered pharmacist in charge thereof, or upon conviction of a violation of any law of this state or of the United States pertaining to the drug business or for the aiding or abetting in the violation of any such law.
Source: SDC 1939, § 27.1016; SL 1967, ch 102, § 16.
36-11-49. Procedure for revocation of pharmacy permit.
Before any permit for a pharmacy shall be revoked chapter 1-26 shall be complied with. Two members of the board shall constitute a quorum and no permit shall be revoked except by a vote of two or more members of the State Board of Pharmacy.
Source: SDC 1939, § 27.1016; SL 1967, ch 102, § 16; revised pursuant to SL 1972, ch 15, § 4.
36-11-50. Appeal from cancellation of pharmacy permit.
An appeal from the decision of the Board of Pharmacy may be taken as provided by chapter 1-26.
Source: SDC 1939, § 27.1016; SL 1967, ch 102, § 16; revised pursuant to SL 1972, ch 15, § 4.
36-11-51, 36-11-52. Repealed by SL 2012, ch 194, §§ 11, 12.
36-11-60, 36-11-61. Repealed by SL 2012, ch 194, §§ 13, 14.
36-11-63. Fees paid to secretary of board--Employment of personnel and payment of expenses from funds collected.
All fees shall be paid to the secretary of the State Board of Pharmacy. Out of the funds collected the board may, pursuant to chapter 3-6D, employ agents, inspectors, and clerical assistance and pay expenses as may be necessary for the enforcement of the provisions of this chapter.
Source: SDC 1939, § 27.1015; SL 1943, ch 105; SL 1953, ch 122; SL 1967, ch 102, § 15; SL 1973, ch 23; SL 2018, ch 12, § 15.
36-11-64. Employment of inspectors--Inspection of licensed establishments.
The Board of Pharmacy may employ inspectors of pharmacy. The members of the board and inspectors of pharmacy may inspect during business hours, all establishments required to be licensed under the authority of the board.
Source: SL 1967, ch 102, § 8.
36-11-65. Injunction proceedings to prevent violations of chapter--Election of remedies.
Whenever the Board of Pharmacy believes, from evidence satisfactory to it, that any person is violating or about to violate any provisions of this chapter or any order or requirement of the board issued or promulgated pursuant to authority expressly granted the board by law, the board may bring an action in the name of the State of South Dakota against such person to enjoin such violation or any act in furtherance thereof. Such action shall be an alternate to criminal proceedings, and the commencement of one proceeding by the board constitutes an election. In such action an order or judgment may be entered awarding such temporary or permanent injunction as is proper.
Source: SL 1967, ch 102, § 24; SL 1978, ch 155, § 20.
36-11-66. Severability of provisions.
If any provision of this chapter is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the chapter and applicability thereof to other persons and circumstances shall not be affected thereby.
Source: SL 1967, ch 102, § 26.
36-11-67. Participants in drug utilization review program immune from liability.
Pharmacists licensed under this chapter or physicians licensed under chapter 36-4 who participate on a drug utilization review program as defined in § 36-11-2 are individually or jointly not subject to and are immune from claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, performed or reached in good faith and without malice when acting individually or jointly in carrying out the responsibilities, authority, duties, powers and privileges of the program conferred upon them under any provisions of law or rule, good faith being presumed until proven otherwise, with malice required to be shown by the complainant.
Source: SL 1992, ch 270, § 2.
36-11-68. Counseling patients and caregivers--Maintenance of patient records.
After receipt of a prescription drug order, the pharmacist shall offer to counsel each patient or caregiver who receives a prescribed drug or device from him on matters which in the exercise of the pharmacist's professional judgment the pharmacist deems significant. To this purpose, the pharmacist shall make a reasonable effort to obtain, record, and maintain pertinent patient information. Before January 1, 1993, the board shall establish minimum standards by rules adopted pursuant to chapter 1-26 for counseling patients and caregivers and for maintenance of patient information.
Nothing in this section shall be construed to require a pharmacist to provide patient counseling for prescribed drugs:
(1) Administered to an inpatient or resident of a health care facility;
(2) Administered by a certified or licensed health professional to registered outpatients of a hospital; or
(3) Provided in less than a seventy-two-hour supply to inpatients or outpatients as a part of the discharge process.
Source: SL 1992, ch 270, § 3.
36-11-69. Release of patient information--Good faith required.
Patient information may be released only in the following circumstances:
(1) If it is authorized by the patient;
(2) If it is requested by the board as part of an inspection or investigation of a pharmacy or pharmacist;
(3) If, in the pharmacist's professional judgment, release to practitioners and other pharmacists is necessary to protect the patient's health and well-being; and
(4) If other persons are authorized or required by law to obtain access to patient information.
A pharmacist or pharmacy is immune from civil liability for any action based on good faith release of patient information under this section.
Source: SL 1992, ch 270, § 4.
36-11-70. Refusal to dispense medication.
No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to:
(1) Cause an abortion; or
(2) Destroy an unborn child as defined in subdivision 22-1-2(50A); or
(3) Cause the death of any person by means of an assisted suicide, euthanasia, or mercy killing.
No such refusal to dispense medication pursuant to this section may be the basis for any claim for damages against the pharmacist or the pharmacy of the pharmacist or the basis for any disciplinary, recriminatory, or discriminatory action against the pharmacist.
Source: SL 1998, ch 226, § 1.
36-11-71. Central pharmacy, remote pharmacy, and telepharmacy practice defined.
Terms as used in this section and § 36-11-72 mean:
(1) "Central pharmacy," a pharmacy with one or more remote pharmacies in which all sites are connected via computer link, video link, and audio link. The central pharmacy may be retail or hospital-based;
(2) "Remote pharmacy," a pharmacy staffed by a registered pharmacy technician with access to a central pharmacy with a registered pharmacist by computer link, video link, and audio link while open;
(3) "Telepharmacy practice," the practice whereby a licensed pharmacist uses telecommunications technology to provide personalized, electronically documented, real-time pharmaceutical care to patients at a remote pharmacy, including prescription dispensing and counseling, and to oversee and supervise remote pharmacy operations.
Source: SL 2007, ch 214, § 1.
36-11-72. Telepharmacy--Promulgation of rules.
The board shall promulgate rules pursuant to chapter 1-26 to provide for the regulation of telepharmacy in the state. The rules shall include:
(1) License requirements, including establishment of an annual license fee not to exceed two hundred fifty dollars;
(2) Minimum structural, security, and equipment requirements for the remote pharmacy;
(3) Minimum staffing requirements for the central pharmacy and remote pharmacy;
(4) Record keeping requirements for the central pharmacy and remote pharmacy;
(5) Establishment of policies and procedures for the daily operation of the remote pharmacy; and
(6) Use of automated dispensing machines.
Source: SL 2007, ch 214, § 2.
