1-1 By: Cain, Berlanga (Senate Sponsor - Parker) H.B. No. 1479
1-2 (In the Senate - Received from the House May 12, 1993;
1-3 May 13, 1993, read first time and referred to Committee on Health
1-4 and Human Services; May 21, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 9, Nays
1-6 0; May 21, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR H.B. No. 1479 By: Nelson
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of optometry and to the continuation and
1-22 functions of the Texas Optometry Board; providing penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Section 1.02, Texas Optometry Act (Article
1-25 4552-1.02, Vernon's Texas Civil Statutes), is amended by amending
1-26 Subdivisions (1), (2), (6), and (7) and adding Subdivisions (9) and
1-27 (10) to read as follows:
1-28 (1) The "practice of optometry" is defined to be the
1-29 employment of objective or subjective means, with or without the
1-30 use of topical ocular pharmaceutical agents, for the purpose of
1-31 ascertaining and measuring the powers of vision of the human eye,
1-32 examining and diagnosing visual defects, abnormal conditions, and
1-33 diseases of the human eye and adnexa, and prescribing or fitting
1-34 lenses or prisms to correct or remedy any defect or abnormal
1-35 condition of vision. Nothing herein shall be construed to permit
1-36 optometrists to treat the eyes for any defect whatsoever in any
1-37 manner nor to administer nor to prescribe any drug or physical
1-38 treatment whatsoever, unless such optometrist is a regularly
1-39 licensed physician, <or> surgeon, or therapeutic optometrist under
1-40 the laws of this state. <Nothing herein shall be construed to
1-41 prevent selling ready-to-wear spectacles or eyeglasses as
1-42 merchandise at retail, nor to prevent simple repair jobs.>
1-43 (2) "Ascertaining and measuring the powers of vision
1-44 of the human eye" shall be construed to include:
1-45 (A) The examination of the eye to diagnose
1-46 <ascertain> the presence of defects or abnormal conditions which
1-47 may be corrected, remedied, or relieved, or the effects of which
1-48 may be corrected, remedied, or relieved by the use of lenses or
1-49 prisms, or
1-50 (B) The employment of any objective or
1-51 subjective means to determine the accommodative or refractive
1-52 condition or the range or powers of vision or <of> muscular
1-53 equilibrium of the human eye, or
1-54 (C) The employment of any objective or
1-55 subjective means for the examination of the human vision system for
1-56 the purpose of ascertaining any departure from the normal,
1-57 measuring its power of vision or adapting lenses or prisms for the
1-58 aid or relief thereof, and it shall be construed as a violation of
1-59 this Act, for any person not a licensed optometrist, therapeutic
1-60 optometrist, or physician to do any one act or thing, or any
1-61 combination of acts or things, named or described in this
1-62 subdivision; provided, that nothing herein shall be construed to
1-63 permit optometrists to treat the eye for any defect whatsoever in
1-64 any manner, nor to administer any drug or physical treatment
1-65 whatsoever, unless said optometrist is a therapeutic optometrist or
1-66 a duly licensed physician and surgeon, under the laws of this
1-67 state.
1-68 (6) A <Nothing in this Act shall be construed as
2-1 preventing a> licensed optometrist or therapeutic optometrist may
2-2 perform <from performing> vision therapy, hand-eye coordination
2-3 exercises, visual training, and developmental vision therapy and
2-4 may evaluate and remediate<, or from the evaluation and remediation
2-5 of> learning or behavioral disabilities associated with or caused
2-6 by <a> defective or abnormal conditions <condition> of vision.
2-7 (7) The "practice of therapeutic optometry" means the
2-8 employment of objective or subjective means for the purpose of
2-9 ascertaining and measuring the powers of vision of the human eye,
2-10 examining and diagnosing visual defects, abnormal conditions, and
2-11 diseases of the human eye and adnexa, prescribing or fitting lenses
2-12 or prisms to correct or remedy a defect or abnormal condition of
2-13 vision, administering or prescribing a drug or physical treatment
2-14 in the manner authorized by this Act, and treating the eye and
2-15 adnexa as authorized by this Act without the use of surgery or
2-16 laser surgery.
2-17 (9) "Optometrist" means a person licensed under this
2-18 Act and authorized to engage in the practice of optometry.
2-19 (10) "Therapeutic optometrist" means a person licensed
2-20 under this Act and authorized to engage in the practice of
2-21 therapeutic optometry.
2-22 SECTION 2. Sections 2.01 and 2.01a, Texas Optometry Act
2-23 (Articles 4552-2.01 and 4552-2.01a, Vernon's Texas Civil Statutes),
2-24 are amended to read as follows:
2-25 Sec. 2.01. Board created. The Texas Optometry Board is
2-26 created. The board is composed of nine members appointed by the
2-27 governor with the advice and consent of the Senate. Appointments
2-28 to the board shall be made without regard to the race, color,
2-29 disability <creed>, sex, age, religion, or national origin of the
2-30 appointees.
2-31 Sec. 2.01a. Sunset Provision. The Texas Optometry Board is
2-32 subject to Chapter 325, Government Code (Texas Sunset Act). Unless
2-33 continued in existence as provided by that chapter, the board is
2-34 abolished and this Act expires September 1, 2005 <1993>.
2-35 SECTION 3. Section 2.02, Texas Optometry Act (Article
2-36 4552-2.02, Vernon's Texas Civil Statutes), is amended by amending
2-37 Subsections (b), (d), and (i) and adding Subsection (j) to read as
2-38 follows:
2-39 (b) Three members must be representatives of the general
2-40 public. A person is not eligible for appointment as a public
2-41 member of the board if the person or the person's spouse:
2-42 (1) is registered, certified, or licensed by an
2-43 occupational regulatory agency in the field of health care;
2-44 (2) is employed by or participates in the management
2-45 of or is an officer or paid consultant of a business entity or
2-46 other organization that provides health-care services or that
2-47 sells, manufactures, or distributes health-care supplies or
2-48 equipment; <or>
2-49 (3) owns, controls, or has, directly or indirectly, a
2-50 financial interest in a business entity or other organization that
2-51 provides health-care services or that sells, manufactures, or
2-52 distributes health-care supplies or equipment; or
2-53 (4) uses or receives a substantial amount of tangible
2-54 goods, services, or funds from the board, other than compensation
2-55 or reimbursement authorized by law for board membership,
2-56 attendance, or expenses.
2-57 (d) A person <who is required to register as a lobbyist
2-58 under Chapter 305, Government Code,> may not serve as a member of
2-59 the board or act as the general counsel to the board if the person
2-60 is required to register as a lobbyist under Chapter 305, Government
2-61 Code, because of the person's activities for compensation on behalf
2-62 of a profession related to the operation of the board.
2-63 (i) A <No> person may not serve more than two complete terms
2-64 <a total of 12 years> on the board. Time served on the board prior
2-65 to September 1, 1981, shall not count toward this limitation.
2-66 (j) Each board member shall comply with the board member
2-67 training requirements established by any other state agency that is
2-68 given authority to establish the requirements for the board.
2-69 (k) The board shall establish a training program for the
2-70 members of the board.
3-1 (1) Before a member of a board may assume the member's
3-2 duties and before the member may be confirmed by the Senate, the
3-3 member must complete at least one course of the training program
3-4 established under this section.
3-5 (2) A training program established under this section
3-6 shall provide information to a participant regarding:
3-7 (A) the enabling legislation that created the
3-8 board to which the member is appointed;
3-9 (B) the programs operated by the agency;
3-10 (C) the role and functions of the agency:
3-11 (D) the rules of the agency with an emphasis on
3-12 the rules that relate to disciplinary and investigatory authority;
3-13 (E) the current budget for the agency;
3-14 (F) the results of the most recent formal audit
3-15 of the agency;
3-16 (G) the requirements of the:
3-17 (i) open meetings law, Chapter 271, Acts
3-18 of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
3-19 Vernon's Texas Civil Statutes), and its subsequent amendments;
3-20 (ii) open records law, Chapter 424, Acts
3-21 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
3-22 Vernon's Texas Civil Statutes), and its subsequent amendments; and
3-23 (iii) Administrative Procedure and Texas
3-24 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
3-25 its subsequent amendments;
3-26 (H) the requirements of the conflict of interest
3-27 laws and other laws relating to public officials; and
3-28 (I) any applicable ethics policies adopted by
3-29 that state agency or the Texas Ethics Commission.
3-30 (3) In developing the training requirements provided
3-31 for in this section, the board shall consult with the governor's
3-32 office, the attorney general's office, and the ethics commission.
3-33 (4) In the event that another state agency or entity
3-34 is given the authority to establish the training requirements, the
3-35 board shall allow that training in lieu of developing its own
3-36 program.
3-37 SECTION 4. Sections 2.06(a), (b), (c), and (f), Texas
3-38 Optometry Act (Article 4552-2.06, Vernon's Texas Civil Statutes),
3-39 are amended to read as follows:
3-40 (a) The board shall preserve a record of its proceedings <in
3-41 a book kept for that purpose>.
3-42 (b) A record shall be kept showing the name, age, and
3-43 present legal and mailing address of each applicant for
3-44 examination, the name and location of the school of optometry from
3-45 which the applicant <he> holds credentials, and the time devoted to
3-46 the study and practice of optometry, together with such information
3-47 as the board may desire to record. Said record shall also show
3-48 whether applicants were rejected or licensed and shall be prima
3-49 facie evidence of all matters therein contained. The executive
3-50 director <secretary of the board> shall on or before September
3-51 <March> 1 of each year send a certified copy of said record to the
3-52 secretary of state for permanent record. A certified copy of said
3-53 record with the hand and seal of the executive director <secretary
3-54 of said board> to the secretary of state, shall be admitted as
3-55 evidence in all courts.
3-56 (c) Every license and annual renewal certificate issued
3-57 shall be numbered and recorded <in a book kept> by the executive
3-58 director <secretary of the board>.
3-59 (f) The board shall maintain <an information file about
3-60 each> complaint files in accordance with Section 4.06 of this Act
3-61 <filed with the board relating to a licensee. If a written
3-62 complaint is filed with the board relating to a licensee, the
3-63 board, at least as frequently as quarterly and until final
3-64 disposition of the complaint, shall notify the parties to the
3-65 complaint of the status of the complaint unless the notification
3-66 would jeopardize an undercover investigation>.
3-67 SECTION 5. Section 2.08, Texas Optometry Act (Article
3-68 4552-2.08, Vernon's Texas Civil Statutes), is amended by amending
3-69 Subsections (b) and (c) and adding Subsections (d), (e), (f), and
3-70 (g) to read as follows:
4-1 (b) The executive director <of the board> or the executive
4-2 director's <his> designee shall develop an intra-agency
4-3 <intraagency> career ladder program. The program shall require
4-4 intra-agency<, one part of which shall be the intraagency> posting
4-5 of all nonentry level positions concurrently with <for at least 10
4-6 days before> any public posting.
4-7 (c) The executive director <of the board> or the executive
4-8 director's <his> designee shall develop a system of annual
4-9 performance evaluations based on measurable job tasks. All merit
4-10 pay for board employees must be based on the system established
4-11 under this subsection.
4-12 (d) The executive director or the executive director's
4-13 designee shall prepare and maintain a written policy statement to
4-14 ensure implementation of a program of equal opportunity under which
4-15 all personnel transactions are made without regard to race, color,
4-16 disability, sex, religion, age, or national origin. The policy
4-17 statement must include:
4-18 (1) personnel policies, including policies relating to
4-19 recruitment, evaluation, selection, appointment, training, and
4-20 promotion of personnel, that are in compliance with requirements of
4-21 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
4-22 Civil Statutes) and its subsequent amendments;
4-23 (2) a comprehensive analysis of the board work force
4-24 that meets federal and state guidelines;
4-25 (3) procedures by which a determination can be made of
4-26 significant underuse in the board work force of all persons for
4-27 whom federal or state guidelines encourage a more equitable
4-28 balance; and
4-29 (4) reasonable methods to appropriately address those
4-30 areas of significant underuse.
4-31 (e) A policy statement prepared under Subsection (d) of this
4-32 section must cover an annual period, be updated annually, be
4-33 reviewed by the Commission on Human Rights for compliance with
4-34 Subsection (d)(1) of this section, and be filed with the governor's
4-35 office.
4-36 (f) The governor's office shall deliver a biennial report to
4-37 the legislature based on information received under Subsection (e)
4-38 of this section. The report may be made separately or as part of
4-39 other biennial reports made to the legislature.
4-40 (g) The board shall develop and implement policies that
4-41 clearly define the respective responsibilities of the board and the
4-42 staff of the board.
4-43 SECTION 6. Sections 2.10 and 2.11, Texas Optometry Act
4-44 (Articles 4552-2.10 and 4552-2.11, Vernon's Texas Civil Statutes),
4-45 are amended to read as follows:
4-46 Sec. 2.10. Proceedings; subpoenas; oaths. The board, any
4-47 committee, or any member thereof, shall have the power to issue
4-48 subpoenas and subpoenas duces tecum to compel the attendance of
4-49 witnesses and the production of books, records and documents, to
4-50 administer oaths and to take testimony concerning all matters
4-51 within the <its or his> jurisdiction of the board, committee, or
4-52 member. The board shall not be bound by strict rules of procedure
4-53 or by the laws of evidence in the conduct of its proceedings but
4-54 the determination shall be founded upon sufficient legal evidence
4-55 to sustain it.
4-56 Sec. 2.11. BOND OF EXECUTIVE DIRECTOR <SECRETARY-TREASURER>.
4-57 Before entering upon the discharge of the duties of <his> office,
4-58 the executive director <secretary-treasurer of the board> shall
4-59 give such bond for the performance of the executive director's
4-60 <his> duties as the board may require, the premium of which is to
4-61 be paid from funds in the possession of the board.
4-62 SECTION 7. Sections 2.15(a), (b), and (d), Texas Optometry
4-63 Act (Article 4552-2.15, Vernon's Texas Civil Statutes), are amended
4-64 to read as follows:
4-65 (a) Except as provided by Subsection (b) of this section,
4-66 the fund realized from all fees payable under this Act shall first
4-67 be applied to the payment of all necessary expenses of the board,
4-68 and the remainder shall be applied, by order of the board, to
4-69 compensate members of the board. Each member of the board is
4-70 entitled to a per diem as set by legislative appropriation for each
5-1 day that the member engages in the business of the board. A member
5-2 may be compensated <not receive any compensation> for actual travel
5-3 expenses, including expenses for meals and lodging and<, other
5-4 than> transportation expenses. A member is entitled to
5-5 compensation for transportation expenses as provided by the General
5-6 Appropriations Act. Each board member shall make out, under oath,
5-7 a complete statement of the number of days engaged and the amount
5-8 of the member's <his> expenses when presenting same for payment.
5-9 (b) The funds realized from annual renewal fees shall be
5-10 distributed as follows: 15 percent <$10> of each renewal fee
5-11 collected by the board under Section 3.03 of this Act shall be
5-12 dedicated to the University of Houston Development Fund. The
5-13 license money placed in the development fund pursuant hereto shall
5-14 be utilized solely for scholarships and improvements in the
5-15 physical facilities, including library, of the College <School> of
5-16 Optometry.
5-17 The remainder of the fees attributable to annual renewal fees
5-18 and all other fees payable under this Act shall be placed in the
5-19 state treasury to the credit of a special fund to be known as the
5-20 "Optometry Fund," and the comptroller shall upon requisition of the
5-21 board from time to time draw warrants upon the state treasurer for
5-22 the amounts specified in such requisition; provided, however, the
5-23 fees from this optometry fund shall be expended as specified by
5-24 itemized appropriation in the General Appropriations bill and shall
5-25 be used by the Texas Optometry Board, and under its direction in
5-26 carrying out its statutory duties.
5-27 (d) The <On or before January 1 of each year, the> board
5-28 shall file annually with <make in writing to> the governor and the
5-29 presiding officer of each house of the legislature a complete and
5-30 detailed written <annual> report accounting for all funds received
5-31 and disbursed by the board during the preceding fiscal year. The
5-32 annual report must be in the form and reported in the time provided
5-33 by the General Appropriations Act.
5-34 SECTION 8. Article 2, Texas Optometry Act (Article 4552-2.01
5-35 et seq., Vernon's Texas Civil Statutes), is amended by adding
5-36 Sections 2.16, 2.17, 2.18, and 2.19 to read as follows:
5-37 Sec. 2.16. QUALIFICATIONS FOR OFFICE OR EMPLOYMENT. The
5-38 board shall provide to its members and employees, as often as
5-39 necessary, information regarding their qualification for office or
5-40 employment under this Act and their responsibilities under
5-41 applicable law relating to standards of conduct for state officers
5-42 or employees.
5-43 Sec. 2.17. PUBLIC INTEREST INFORMATION. (a) The board
5-44 shall prepare information of public interest describing the
5-45 functions of the board and the board's procedures by which
5-46 complaints are filed with and resolved by the board. The board
5-47 shall make the information available to the public and appropriate
5-48 state agencies.
5-49 (b) The board by rule shall establish methods by which
5-50 consumers and service recipients are notified of the name, mailing
5-51 address, and telephone number of the board for the purpose of
5-52 directing complaints to the board. The board may provide for that
5-53 notification:
5-54 (1) on each registration form, application, or written
5-55 contract for services of an individual or entity regulated under
5-56 this Act;
5-57 (2) on a sign prominently displayed in the place of
5-58 business of each individual or entity regulated under this Act; or
5-59 (3) in a bill for services provided by an individual
5-60 or entity regulated under this Act.
5-61 (c) The board shall list along with its regular telephone
5-62 number the toll-free telephone number that may be called to present
5-63 a complaint about a health professional if the toll-free number is
5-64 established under other state law.
5-65 Sec. 2.18. PUBLIC PARTICIPATION IN BOARD HEARINGS. The
5-66 board shall develop and implement policies that provide the public
5-67 with a reasonable opportunity to appear before the board and to
5-68 speak on any issue under the jurisdiction of the board.
5-69 Sec. 2.19. PROGRAM ACCESSIBILITY. The board shall prepare
5-70 and maintain a written plan that describes how a person who does
6-1 not speak English can be provided reasonable access to the board's
6-2 programs. The board shall also comply with federal and state laws
6-3 for program and facility accessibility.
6-4 SECTION 9. Section 3.01, Texas Optometry Act (Article
6-5 4552-3.01, Vernon's Texas Civil Statutes), is amended to read as
6-6 follows:
6-7 Sec. 3.01. Must pass examination. Every person hereafter
6-8 desiring to be licensed to practice therapeutic optometry in this
6-9 state shall be required to pass the examination given by the Texas
6-10 Optometry Board. <However, the board may adopt substantive rules
6-11 to authorize the waiver of this or other license requirements for
6-12 an applicant with a valid license from another state having, at the
6-13 time of the applicant's initial licensure in that state, license
6-14 requirements and continuing education requirements substantially
6-15 equivalent to those currently required in this state.> The
6-16 examination must include examination in pharmacology and related
6-17 pathology.
6-18 SECTION 10. Sections 3.02(a) and (b), Texas Optometry Act
6-19 (Article 4552-3.02, Vernon's Texas Civil Statutes), are amended to
6-20 read as follows:
6-21 (a) The applicant shall make application, furnishing to the
6-22 executive director <secretary of the board>, on forms to be
6-23 furnished by the board, satisfactory sworn evidence that the
6-24 applicant <he> has attained the age of majority, is of good moral
6-25 character, and has <at least graduated from a first grade high
6-26 school, or has> a preliminary education equivalent to permit the
6-27 applicant <him> to matriculate in The University of Texas, and that
6-28 the applicant <he> has attended and graduated from a reputable
6-29 <university or> college of optometry which meets with the
6-30 requirements of the board, and such other information as the board
6-31 may deem necessary for the enforcement of this Act.
6-32 (b) A college <university or school> of optometry is
6-33 reputable whose entrance requirements and course of instruction are
6-34 as high as those adopted by the better class of universities and
6-35 schools of optometry and whose course of instruction shall be
6-36 equivalent to not less than six terms of eight months each, and
6-37 approved by the board. Provided, however, that the provisions of
6-38 this subsection shall only apply to those students enrolling in
6-39 school from and after September 1, 1969 <the effective date of this
6-40 Act>.
6-41 SECTION 11. Section 3.03, Texas Optometry Act (Article
6-42 4552-3.03, Vernon's Texas Civil Statutes), is amended to read as
6-43 follows:
6-44 Sec. 3.03. Fees. (a) The board shall establish reasonable
6-45 and necessary fees so that the fees, in the aggregate, produce
6-46 sufficient revenue to cover the cost of administering <for the
6-47 administration of> this Act. The fees established by the board
6-48 under this section may include fees for examination,
6-49 re-examination, issuance of a license, renewal of a license,
6-50 issuance of a duplicate license, and other acts performed by or
6-51 services provided by the board. The board may not set a fee for an
6-52 amount less than the amount of that fee on September 1, 1993. The
6-53 fees may be adjusted upward to reflect increased costs in the
6-54 administration of this Act. <in amounts not to exceed:>
6-55 <1. Examination $ 55>
6-56 <2. Re-examination 20>
6-57 <3. License 40>
6-58 <4. License renewal 135>
6-59 <5. Lost license 15>
6-60 The board shall not maintain unnecessary fund balances, and fee
6-61 amounts shall be set in accordance with this requirement.
6-62 (b) If anyone successfully passing the examination and
6-63 meeting the requirements of the board has not paid the fee for
6-64 issuance of a license within 90 days after having been notified by
6-65 registered mail at the address given on the <his> examination
6-66 papers, or at the time of the examination, that the person <he> is
6-67 eligible for the license <same>, such person shall by the person's
6-68 <his> own act have waived the <his> right to obtain the <his>
6-69 license, and the board may at its discretion refuse to issue such
6-70 license until such person has taken and successfully passed another
7-1 examination.
7-2 SECTION 12. Section 3.03B, Texas Optometry Act (Article
7-3 4552-3.03B, Vernon's Texas Civil Statutes), is amended by adding
7-4 Subsections (c) and (d) to read as follows:
7-5 (c) The fee increase imposed by this section may not apply
7-6 to a person who is not engaged in the practice of optometry or
7-7 therapeutic optometry in this state at the time the fee is imposed.
7-8 (d) The fee increase imposed by this section may not be used
7-9 to compute the amount dedicated to the University of Houston
7-10 Development Fund under Section 2.15(b) of this Act.
7-11 SECTION 13. Sections 3.05 and 3.06, Texas Optometry Act
7-12 (Articles 4552-3.05 and 4552-3.06, Vernon's Texas Civil Statutes),
7-13 are amended to read as follows:
7-14 Sec. 3.05. Subjects of examination. The examination shall
7-15 consist of written, oral or practical tests, in practical,
7-16 theoretical, and physiological optics, in theoretical and practical
7-17 optometry, and in the anatomy, physiology and pathology of the eye
7-18 as applied to optometry and in such other subjects as may be
7-19 regularly taught in <all> recognized accredited colleges of
7-20 optometry <standard optometric universities or schools>.
7-21 Sec. 3.06. Conduct of examination. All examinations shall
7-22 be conducted in writing and by such other means as the board shall
7-23 determine adequate to ascertain the qualifications of applicants
7-24 and in such manner as shall be entirely fair and impartial to all
7-25 individuals and every recognized school of optometry. If the
7-26 written portion of the examination is not prepared by a national
7-27 testing organization, the board shall have the written portion
7-28 validated by an independent testing professional. All applicants
7-29 examined at the same time shall be given the same written
7-30 examination. Within 30 days after the date a licensing examination
7-31 is administered under this Act, the board shall notify each
7-32 examinee of the results of the examination. However, if an
7-33 examination is graded or reviewed by a national testing service,
7-34 the board shall notify each examinee of the results of the
7-35 examination within two weeks after the date the board receives the
7-36 results from the testing service. If the notice of the examination
7-37 results will be delayed for more than 90 days after the examination
7-38 date, the board shall notify each examinee of the reason for the
7-39 delay before the 90th day. If requested in writing by a person who
7-40 fails the licensing examination administered under this Act, the
7-41 board shall furnish the person with an analysis of the person's
7-42 performance on the examination.
7-43 SECTION 14. Article 3, Texas Optometry Act (Article
7-44 4552-3.01 et seq., Vernon's Texas Civil Statutes), is amended by
7-45 adding Sections 3.08, 3.09, and 3.10 to read as follows:
7-46 Sec. 3.08. PROVISIONAL LICENSE FOR PERSON LICENSED IN
7-47 ANOTHER STATE. (a) On application, the board shall grant a
7-48 provisional license to practice optometry or therapeutic optometry.
7-49 An applicant for a provisional license under this section must:
7-50 (1) be licensed in good standing as an optometrist or
7-51 therapeutic optometrist in another state, the District of Columbia,
7-52 or a territory of the United States that has licensing requirements
7-53 that are substantially equivalent to the requirements of this Act;
7-54 (2) have passed a national or other examination
7-55 recognized by the board relating to the practice of optometry or
7-56 therapeutic optometry; and
7-57 (3) be sponsored by a person licensed by the board
7-58 under this Act with whom the provisional license holder may
7-59 practice under this section.
7-60 (b) An applicant for a provisional license may be excused
7-61 from the requirement of Subsection (a)(3) of this section if the
7-62 board determines that compliance with that subdivision constitutes
7-63 a hardship to the applicant.
7-64 (c) A provisional license is valid until the date the board
7-65 approves or denies the provisional license holder's application for
7-66 a license. The board shall issue a license under this Act to the
7-67 holder of a provisional license under this section if:
7-68 (1) the provisional license holder passes the
7-69 examination required by Section 3.01 of this Act;
7-70 (2) the board verifies that the provisional license
8-1 holder has the academic and experience requirements for a license
8-2 under this Act; and
8-3 (3) the provisional license holder satisfies any other
8-4 license requirements under this Act.
8-5 (d) The board must complete the processing of a provisional
8-6 license holder's application for a license not later than the 180th
8-7 day after the date the provisional license is issued. The board
8-8 may extend this time as necessary to receive the results of an
8-9 examination administered or graded by a testing organization.
8-10 Sec. 3.09. LIMITED LICENSE FOR CLINICAL FACULTY. (a) The
8-11 board by rule may provide for the issuance of a limited license to
8-12 a full-time clinical faculty member of an institution of higher
8-13 education of this state who provides instruction in optometry or
8-14 therapeutic optometry.
8-15 (b) A license under this section may authorize the faculty
8-16 member to practice optometry or therapeutic optometry only on the
8-17 premises of the institution of higher education and its affiliated
8-18 teaching clinics and only as part of the institution's teaching
8-19 program.
8-20 (c) The board by rule may adopt criteria and fees for
8-21 issuance and renewal of a license under this section.
8-22 Sec. 3.10. INACTIVE STATUS. The board by rule may provide
8-23 for a person who holds a license under this Act to be placed on
8-24 inactive status.
8-25 SECTION 15. Section 4.01, Texas Optometry Act (Article
8-26 4552-4.01, Vernon's Texas Civil Statutes), is amended to read as
8-27 follows:
8-28 Sec. 4.01. Annual renewal. (a) On or before January 1 of
8-29 each year, every licensed optometrist and therapeutic optometrist
8-30 in this state shall pay to <the secretary-treasurer of> the board
8-31 an annual renewal fee for the renewal of a <his> license to
8-32 practice optometry or therapeutic optometry for the current year.
8-33 The amount of the fee shall be as determined by the board. A
8-34 person may renew an unexpired license by paying to the board before
8-35 the expiration date of the license the required renewal fee.
8-36 (b) If a person's license has been expired for 90 <not more
8-37 than 180> days or less, the person may renew the license by paying
8-38 to the board the required renewal fee and a fee that is one-half of
8-39 the examination fee for the license.
8-40 (c) If a person's license has been expired for longer than
8-41 90 <more than 180> days but less than one year <three years>, the
8-42 person may renew the license by paying to the board all unpaid
8-43 renewal fees and a fee that is equal to the examination fee for the
8-44 license.
8-45 (d) If a person's license has been expired for one year or
8-46 longer <three years or more>, the person may not renew the license.
8-47 The person may obtain a new license by submitting to reexamination
8-48 and complying with the requirements and procedures for obtaining an
8-49 original license. However, the board may renew without examination
8-50 an expired license of a person who was licensed in this state,
8-51 moved to another state, and is currently licensed and has been in
8-52 practice in the other state for the two years preceding
8-53 application. The person must pay to the board a fee that is equal
8-54 to the examination fee for the license.
8-55 (e) At least 30 days before the expiration of a person's
8-56 license, the board shall send written notice of the impending
8-57 license expiration to the person at the person's last known address
8-58 according to the records of the board.
8-59 (f) <(b)> On receipt of the required fees, the board shall
8-60 issue an annual renewal certificate bearing the number of the
8-61 license, the year for which renewed, and such other information
8-62 from the records of the board as said board may deem necessary for
8-63 the proper enforcement of this Act.
8-64 (g) <(c) When the person's license has been expired for
8-65 three years, the board shall notify the county clerk of the county
8-66 in which such license may have been recorded of the cancellation,
8-67 and such clerk, upon receipt of such notice from said board, shall
8-68 enter upon the optometry register of such county the fact that such
8-69 license has been cancelled for nonpayment of annual renewal fee and
8-70 shall notify the board in writing that such entry has been made.>
9-1 <(d)> Practicing optometry or therapeutic optometry without
9-2 an annual renewal certificate for the current year as provided
9-3 herein, shall have the same force and effect and be subject to all
9-4 penalties of practicing optometry or therapeutic optometry without
9-5 a license.
9-6 SECTION 16. Section 4.01B, Texas Optometry Act (Article
9-7 4552-4.01B, Vernon's Texas Civil Statutes), is amended by amending
9-8 Subsections (b), (c), and (e) and adding Subsections (f) and (g) to
9-9 read as follows:
9-10 (b) The length of study required is 16 <12> hours per
9-11 calendar year. At least six hours of study per calendar year must
9-12 be in the diagnosis or treatment of ocular disease.
9-13 (c) The continuing education requirements established by
9-14 this section shall be fulfilled by attendance in continuing
9-15 education courses sponsored by an accredited college of optometry
9-16 or in a course approved by the board. Attendance at a course of
9-17 study shall be certified to the board on a form approved <provided>
9-18 by the board and shall be submitted by each licensed optometrist
9-19 and therapeutic optometrist in conjunction with the <his>
9-20 application for renewal of the <his> license and submission of
9-21 renewal fee.
9-22 (e) The <Licensees who have not complied with the
9-23 requirement of this section may not be issued a renewal license,
9-24 except for the> following persons <who> are exempt from the
9-25 requirements of this section:
9-26 (1) a person who holds a Texas license but who does
9-27 not practice optometry or therapeutic optometry in Texas;
9-28 (2) a licensee who served in the regular armed forces
9-29 of the United States during part of the 12 months immediately
9-30 preceding the annual license renewal date;
9-31 (3) a licensee who submits proof that the licensee
9-32 <he> suffered a serious or disabling illness or physical disability
9-33 which prevented the licensee <him> from complying with the
9-34 requirements of this section during the 12 months immediately
9-35 preceding the annual license renewal date; or
9-36 (4) a licensee first licensed within the 12 months
9-37 immediately preceding the annual renewal date.
9-38 (f) The board may not issue a renewal license to a licensee
9-39 who has not complied with the requirements of this section unless
9-40 the licensee:
9-41 (1) provides the board with evidence acceptable to the
9-42 board that the licensee has, since the expiration of the license,
9-43 completed sufficient hours of approved continuing education courses
9-44 to satisfy any deficiency in the previous year; and
9-45 (2) pays to the board the license renewal fee plus a
9-46 penalty in an amount equal to the amount of the license renewal
9-47 fee.
9-48 (g) Continuing education hours used by a licensee to satisfy
9-49 a deficiency for a previous year under Subsection (f)(1) of this
9-50 section may not be used to satisfy the requirements for the year in
9-51 which they are earned.
9-52 SECTION 17. Sections 4.02 and 4.03, Texas Optometry Act
9-53 (Articles 4552-4.02 and 4552-4.03, Vernon's Texas Civil Statutes),
9-54 are amended to read as follows:
9-55 Sec. 4.02. Renewal after discharge from military. Any
9-56 licensed optometrist or therapeutic optometrist whose renewal
9-57 certificate has expired while the licensee <he> has been engaged in
9-58 active duty with any United States military service or with the
9-59 United States Public Health Service, engaged in full-time federal
9-60 service, or engaged in training or education under the supervision
9-61 of the United States, preliminary to induction into the military
9-62 service, may have the <his> renewal certificate reinstated without
9-63 paying any lapsed renewal fee or registration fee, or without
9-64 passing an examination, if within one year after termination of
9-65 said service, training or education, other than by dishonorable
9-66 discharge, the licensee <he> furnishes the board with affidavit to
9-67 the effect that the licensee <he> has been so engaged and that the
9-68 <his> service, training or education has been so terminated.
9-69 Sec. 4.03. Lost or destroyed license. If any license issued
9-70 under this law shall be lost or destroyed, the holder of said
10-1 license shall make an affidavit of its loss or destruction, and
10-2 that the person making the affidavit <he> is the same person to
10-3 whom such license was issued, and such other information as may be
10-4 desired by the board, and shall, upon payment of a fee set in
10-5 accordance with Section 3.03 of this Act, <of $10> be granted a
10-6 license under this law.
10-7 SECTION 18. Section 4.04, Texas Optometry Act (Article
10-8 4552-4.04, Vernon's Texas Civil Statutes), is amended by amending
10-9 Subsections (a), (b), and (e) and adding Subsection (g) to read as
10-10 follows:
10-11 (a) By five or more votes, the board may refuse to issue a
10-12 license to an applicant, revoke or suspend a license, place on
10-13 probation a person whose license has been suspended, impose a fine,
10-14 impose a stipulation, limitation, or condition relating to
10-15 continued practice, including conditioning continued practice on
10-16 counseling or additional education <probate a license suspension>,
10-17 or reprimand a licensee if it finds that:
10-18 (1) the applicant or licensee is guilty of any fraud,
10-19 deceit, dishonesty, or misrepresentation in the practice of
10-20 optometry or therapeutic optometry or in <his> seeking admission to
10-21 such practice;
10-22 (2) the applicant or licensee is unfit or incompetent
10-23 by reason of negligence;
10-24 (3) the applicant or licensee has been convicted of a
10-25 felony or a misdemeanor which involves moral turpitude;
10-26 (4) the applicant or licensee is an habitual drunkard
10-27 or is addicted to the use of morphine, cocaine or other drugs
10-28 having similar effect or has become insane or has been adjudged by
10-29 a court of competent jurisdiction to be of unsound mind;
10-30 (5) the licensee has directly or indirectly employed,
10-31 hired, procured, or induced a person, not licensed to practice
10-32 optometry or therapeutic optometry in this state, to so practice;
10-33 (6) the licensee directly or indirectly aids or abets
10-34 in the practice of optometry or therapeutic optometry any person
10-35 not duly licensed to practice under this Act;
10-36 (7) the licensee lends, leases, rents or in any other
10-37 manner places the <his> license at the disposal or in the service
10-38 of any person not licensed to practice optometry or therapeutic
10-39 optometry in this state;
10-40 (8) the applicant or licensee has willfully or
10-41 repeatedly violated any of the provisions of this Act or a lawful
10-42 rule of the board;
10-43 (9) the licensee has willfully or repeatedly
10-44 represented to the public or any member thereof that the licensee
10-45 <he> is authorized or competent to cure or treat diseases of the
10-46 eye beyond the authorization granted in this Act; <or>
10-47 (10) the licensee has the <his> right to practice
10-48 optometry or therapeutic optometry suspended or revoked by any
10-49 federal agency for a cause which in the opinion of the board
10-50 warrants such action;
10-51 (11) the applicant or licensee has engaged in conduct
10-52 to deceive, defraud, or harm the public;
10-53 (12) the applicant or licensee is found by the board
10-54 to be guilty of gross incompetence in the practice of optometry or
10-55 therapeutic optometry;
10-56 (13) the applicant or licensee is found by the board
10-57 to have engaged in a pattern of practice or other behavior that
10-58 demonstrates a willful rendering of substandard care;
10-59 (14) the applicant or licensee commits an act of
10-60 sexual abuse, misconduct, or exploitation with a patient or
10-61 otherwise unethically or immorally abuses the doctor-patient
10-62 relationship;
10-63 (15) the applicant or licensee prescribes, sells,
10-64 administers, distributes, or gives any drug legally classified as a
10-65 controlled substance or as an addictive or dangerous drug for other
10-66 than accepted diagnostic or therapeutic purposes;
10-67 (16) the applicant or licensee fails to report to the
10-68 board the relocation of the applicant's or licensee's office not
10-69 later than the 30th day after the relocation, whether in or out of
10-70 this state; or
11-1 (17) the licensee practices or attempts to practice
11-2 optometry while the licensee's license is under suspension.
11-3 (b) Any person may begin proceedings under this section by
11-4 filing charges with the board in writing and under oath. If
11-5 charges are filed against a person or if the board proposes to
11-6 refuse a person's application for a license or to suspend or revoke
11-7 a person's license, the person is entitled to a hearing. The State
11-8 Office of Administrative Hearings shall conduct the hearing <before
11-9 the board>. Except as provided by Subsection (c) of this section,
11-10 proceedings are governed by the Administrative Procedure and Texas
11-11 Register Act<, as amended> (Article 6252-13a, Vernon's Texas Civil
11-12 Statutes) and its subsequent amendments.
11-13 (e) Nothing in this Act shall be construed to prevent the
11-14 administrator or executor of the estate of a deceased optometrist
11-15 or therapeutic optometrist from employing a licensed optometrist or
11-16 therapeutic optometrist to carry on the practice of such deceased
11-17 during the administration of such estate nor to prevent a licensed
11-18 optometrist or therapeutic optometrist from working for such person
11-19 during the administration of the estate when the legal
11-20 representative thereof has been authorized by the county judge to
11-21 continue the operation of such practice. Operation of a practice
11-22 by an estate under this subsection must terminate before the first
11-23 anniversary of the death of the optometrist or therapeutic
11-24 optometrist.
11-25 (g) If a license suspension is probated, the board may
11-26 require the licensee to:
11-27 (1) report regularly to the board on matters that are
11-28 the basis of the probation;
11-29 (2) limit practice to the areas prescribed by the
11-30 board; or
11-31 (3) continue or review professional education until
11-32 the licensee attains a degree of skill satisfactory to the board in
11-33 those areas that are the basis of the probation.
11-34 SECTION 19. Article 4, Texas Optometry Act (Article
11-35 4552-4.01 et seq., Vernon's Texas Civil Statutes), is amended by
11-36 adding Sections 4.05, 4.06, 4.07, 4.08, and 4.09 to read as
11-37 follows:
11-38 Sec. 4.05. ADMINISTRATIVE PENALTIES. (a) The board may
11-39 impose an administrative penalty against a person licensed or
11-40 regulated under this Act who violates this Act or a rule or order
11-41 adopted under this Act.
11-42 (b) The penalty for each violation may be in an amount not
11-43 to exceed $2,500. Each day a violation continues or occurs is a
11-44 separate violation for purposes of imposing a penalty.
11-45 (c) The amount of the penalty shall be based on:
11-46 (1) the seriousness of the violation, including the
11-47 nature, circumstances, extent, and gravity of any prohibited acts,
11-48 and the hazard or potential hazard created to the health, safety,
11-49 or economic welfare of the public;
11-50 (2) the economic harm to property or the environment
11-51 caused by the violation;
11-52 (3) the history of previous violations;
11-53 (4) the amount necessary to deter future violations;
11-54 (5) efforts to correct the violation; and
11-55 (6) any other matter that justice may require.
11-56 (d) If the executive director or a subcommittee of the board
11-57 appointed for that purpose determines that a violation has
11-58 occurred, the executive director or subcommittee may issue to the
11-59 board a report that states the facts on which the determination is
11-60 based and the recommendation of the executive director or
11-61 subcommittee on the imposition of a penalty, including a
11-62 recommendation on the amount of the penalty. A subcommittee of the
11-63 board appointed under this subsection must include at least one
11-64 public member of the board.
11-65 (e) Within 14 days after the date the report is issued, the
11-66 executive director or subcommittee shall give written notice of the
11-67 report to the person. The notice may be given by certified mail.
11-68 The notice must include a brief summary of the alleged violation
11-69 and a statement of the amount of the recommended penalty and must
11-70 inform the person that the person has a right to a hearing on the
12-1 occurrence of the violation, the amount of the penalty, or both the
12-2 occurrence of the violation and the amount of the penalty.
12-3 (f) Within 20 days after the date the person receives the
12-4 notice, the person in writing may accept the determination and
12-5 recommended penalty of the executive director or subcommittee, as
12-6 applicable, or may make a written request for a hearing on the
12-7 occurrence of the violation, the amount of the penalty, or both the
12-8 occurrence of the violation and the amount of the penalty.
12-9 (g) If the person accepts the determination and recommended
12-10 penalty of the executive director or subcommittee, as applicable,
12-11 the board by order shall approve the determination and impose the
12-12 recommended penalty.
12-13 (h) If the person requests a hearing or fails to respond
12-14 timely to the notice, the executive director shall set a hearing
12-15 and give notice of the hearing to the person. The hearing shall be
12-16 held by an administrative law judge of the State Office of
12-17 Administrative Hearings. The administrative law judge shall make
12-18 findings of fact and conclusions of law. The administrative law
12-19 judge shall promptly issue to the board a proposal for a decision
12-20 about the occurrence of the violation and the amount of a proposed
12-21 penalty. Based on the findings of fact, conclusions of law, and
12-22 proposal for a decision, the board by order may find that a
12-23 violation has occurred and impose a penalty or may find that no
12-24 violation occurred.
12-25 (i) The notice of the board's order given to the person
12-26 under the Administrative Procedure and Texas Register Act (Article
12-27 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
12-28 amendments must include a statement of the right of the person to
12-29 judicial review of the order.
12-30 (j) Within 30 days after the date the board's order is final
12-31 as provided by Section 16(c), Administrative Procedure and Texas
12-32 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
12-33 its subsequent amendments, the person shall:
12-34 (1) pay the amount of the penalty;
12-35 (2) pay the amount of the penalty and file a petition
12-36 for judicial review contesting the occurrence of the violation, the
12-37 amount of the penalty, or both the occurrence of the violation and
12-38 the amount of the penalty; or
12-39 (3) without paying the amount of the penalty, file a
12-40 petition for judicial review contesting the occurrence of the
12-41 violation, the amount of the penalty, or both the occurrence of the
12-42 violation and the amount of the penalty.
12-43 (k) Within the 30-day period, a person who acts under
12-44 Subsection (j)(3) of this section may:
12-45 (1) stay enforcement of the penalty by:
12-46 (A) paying the amount of the penalty to the
12-47 court for placement in an escrow account; or
12-48 (B) giving to the court a supersedeas bond
12-49 approved by the court for the amount of the penalty and that is
12-50 effective until all judicial review of the board's order is final;
12-51 or
12-52 (2) request the court to stay enforcement of the
12-53 penalty by:
12-54 (A) filing with the court a sworn affidavit of
12-55 the person stating that the person is financially unable to pay the
12-56 amount of the penalty and is financially unable to give the
12-57 supersedeas bond; and
12-58 (B) giving a copy of the affidavit to the
12-59 executive director by certified mail.
12-60 (l) If the executive director receives a copy of an
12-61 affidavit under Subsection (k)(2) of this section, the executive
12-62 director may file with the court, within five days after the date
12-63 the copy is received, a contest to the affidavit. The court shall
12-64 hold a hearing on the facts alleged in the affidavit as soon as
12-65 practicable and shall stay the enforcement of the penalty on
12-66 finding that the alleged facts are true. The person who files an
12-67 affidavit has the burden of proving that the person is financially
12-68 unable to pay the amount of the penalty and to give a supersedeas
12-69 bond.
12-70 (m) If the person does not pay the amount of the penalty and
13-1 the enforcement of the penalty is not stayed, the executive
13-2 director may refer the matter to the attorney general for
13-3 collection of the amount of the penalty.
13-4 (n) Judicial review of the order of the board:
13-5 (1) is instituted by filing a petition as provided by
13-6 Section 19, Administrative Procedure and Texas Register Act
13-7 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
13-8 subsequent amendments; and
13-9 (2) is under the substantial evidence rule.
13-10 (o) If the court sustains the occurrence of the violation,
13-11 the court may uphold or reduce the amount of the penalty and order
13-12 the person to pay the full or reduced amount of the penalty. If
13-13 the court does not sustain the occurrence of the violation, the
13-14 court shall order that no penalty is owed.
13-15 (p) When the judgment of the court becomes final, the court
13-16 shall proceed under this subsection. If the person paid the amount
13-17 of the penalty and if that amount is reduced or is not upheld by
13-18 the court, the court shall order that the appropriate amount plus
13-19 accrued interest be remitted to the person. The rate of the
13-20 interest is the rate charged on loans to depository institutions by
13-21 the New York Federal Reserve Bank, and the interest shall be paid
13-22 for the period beginning on the date the penalty was paid and
13-23 ending on the date the penalty is remitted. If the person gave a
13-24 supersedeas bond and if the amount of the penalty is not upheld by
13-25 the court, the court shall order the release of the bond. If the
13-26 person gave a supersedeas bond and if the amount of the penalty is
13-27 reduced, the court shall order the release of the bond after the
13-28 person pays the amount.
13-29 (q) A penalty collected under this section shall be remitted
13-30 to the comptroller for deposit in the general revenue fund.
13-31 (r) All proceedings under this section are subject to the
13-32 Administrative Procedure and Texas Register Act (Article 6252-13a,
13-33 Vernon's Texas Civil Statutes) and its subsequent amendments.
13-34 Sec. 4.06. COMPLAINT PROCEDURE IN GENERAL. (a) The board
13-35 shall keep an information file about each complaint filed with the
13-36 board. The board's information file shall be kept current and
13-37 contain a record for each complaint of:
13-38 (1) all persons contacted in relation to the
13-39 complaint;
13-40 (2) a summary of findings made at each step of the
13-41 complaint process;
13-42 (3) an explanation of the legal basis and reason for a
13-43 complaint that is dismissed; and
13-44 (4) other relevant information.
13-45 (b) If a written complaint is filed with the board that the
13-46 board has authority to resolve, the board, at least as frequently
13-47 as quarterly and until final disposition of the complaint, shall
13-48 notify the parties to the complaint of the status of the complaint
13-49 unless the notice would jeopardize an undercover investigation.
13-50 (c) The board by rule shall adopt a form to standardize
13-51 information concerning complaints made to the board. The board by
13-52 rule shall prescribe information to be provided to a person when
13-53 the person files a complaint with the board.
13-54 (d) The board shall provide reasonable assistance to a
13-55 person who wishes to file a complaint with the board.
13-56 Sec. 4.07. COMPLAINT INVESTIGATION AND DISPOSITION.
13-57 (a) The board shall adopt rules concerning the investigation of a
13-58 complaint filed with the board. The rules adopted under this
13-59 subsection shall:
13-60 (1) distinguish between categories of complaints;
13-61 (2) ensure that complaints are not dismissed without
13-62 appropriate consideration;
13-63 (3) require that the board be advised of a complaint
13-64 that is dismissed and that a letter be sent to the person who filed
13-65 the complaint explaining the action taken on the dismissed
13-66 complaint;
13-67 (4) ensure that the person who filed the complaint has
13-68 an opportunity to explain the allegations made in the complaint;
13-69 and
13-70 (5) prescribe guidelines concerning the categories of
14-1 complaints that require the use of a private investigator and the
14-2 procedures for the board to obtain the services of a private
14-3 investigator.
14-4 (b) The board shall dispose of all complaints in a timely
14-5 manner. The board shall establish a schedule for conducting each
14-6 phase of a complaint that is under the control of the board not
14-7 later than the 30th day after the date the complaint is received by
14-8 the board. The schedule shall be kept in the information file for
14-9 the complaint and all parties shall be notified of the projected
14-10 time requirements for pursuing the complaint. A change in the
14-11 schedule must be noted in the complaint information file and all
14-12 parties to the complaint must be notified not later than the
14-13 seventh day after the date the change is made.
14-14 (c) The executive director shall notify the board of a
14-15 complaint that extends beyond the time prescribed by the board for
14-16 resolving the complaint so that the board may take necessary action
14-17 on the complaint.
14-18 Sec. 4.08. MONITORING OF LICENSE HOLDER. The board by rule
14-19 shall develop a system for monitoring license holders' compliance
14-20 with the requirements of this Act. Rules adopted under this
14-21 section shall include procedures for monitoring a license holder
14-22 who is ordered by the board to perform certain acts to ascertain
14-23 that the license holder performs the required acts and to identify
14-24 and monitor license holders who represent a risk to the public.
14-25 Sec. 4.09. INFORMAL PROCEEDINGS. (a) The board by rule
14-26 shall adopt procedures governing:
14-27 (1) informal disposition of a contested case under
14-28 Section 13(e), Administrative Procedure and Texas Register Act
14-29 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
14-30 subsequent amendments; and
14-31 (2) informal proceedings held in compliance with
14-32 Section 18(c), Administrative Procedure and Texas Register Act
14-33 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
14-34 subsequent amendments.
14-35 (b) Rules adopted under this section must provide the
14-36 complainant and the licensee an opportunity to be heard and must
14-37 require the presence of a representative of the office of the
14-38 attorney general to advise the board or the board's employees.
14-39 SECTION 20. Sections 5.01, 5.02, 5.03, 5.04, and 5.08, Texas
14-40 Optometry Act (Articles 4552-5.01, 4552-5.02, 4552-5.03, 4552-5.04,
14-41 and 4552-5.08, Vernon's Texas Civil Statutes), are amended to read
14-42 as follows:
14-43 Sec. 5.01. Display of license. Every person practicing
14-44 optometry or therapeutic optometry in this state shall display the
14-45 person's <his> license or certificate in a conspicuous place in the
14-46 principal office where the person <he> practices optometry or
14-47 therapeutic optometry and whenever required, exhibit such license
14-48 or certificate to said board, or its authorized representative, and
14-49 whenever practicing said profession of optometry or therapeutic
14-50 optometry outside of, or away from said office or place of
14-51 business, the person <he> shall deliver to each person fitted with
14-52 glasses a bill, which shall contain the person's <his> signature,
14-53 post-office address, and number of the person's <his> license or
14-54 certificate, together with a specification of the lenses and
14-55 material furnished and the prices charged for the same
14-56 respectively.
14-57 Sec. 5.02. LICENSEE INFORMATION. Each licensee shall file
14-58 with the board:
14-59 (1) the licensee's mailing address;
14-60 (2) the address of the licensee's residence;
14-61 (3) the mailing address of each of the licensee's
14-62 offices; and
14-63 (4) the address for the location of each of the
14-64 licensee's offices if that address is different from the office's
14-65 mailing address <RECORDATION OF LICENSE. It shall be unlawful for
14-66 any person to practice optometry or therapeutic optometry within
14-67 the limits of this state who has not registered and recorded his
14-68 license in the office of the county clerk of the county in which he
14-69 resides, and in each county in which he practices, together with
14-70 his age, post-office address, place of birth, subscribed and
15-1 verified by his oath. The fact of such oath and record shall be
15-2 endorsed by the county clerk upon the license. The absence of
15-3 record of such license in the office of the county clerk shall be
15-4 prima facie evidence of the lack of the possession of such license
15-5 to practice optometry or therapeutic optometry>.
15-6 Sec. 5.03. DUTY TO UPDATE INFORMATION. Not later than the
15-7 10th day after the date of a change in any of the information
15-8 required to be filed with the board under Section 5.02 of this Act,
15-9 the licensee shall file with the board a written notice of the
15-10 change <OPTOMETRY REGISTER. Each county clerk in this state shall
15-11 purchase a book of suitable size, to be known as the "Optometry
15-12 Register" of such county, and set apart at least one full page for
15-13 the registration of each optometrist and therapeutic optometrist,
15-14 and record in said optometry register the name and record of each
15-15 optometrist and therapeutic optometrist who presents for record a
15-16 license or certificate issued by the state board. When an
15-17 optometrist or therapeutic optometrist shall have his license
15-18 revoked, suspended, or cancelled, said county clerk, upon being
15-19 notified by the board, shall make a note of the fact beneath the
15-20 record in the optometry register, which entry shall close the
15-21 record and be prima facie evidence of the fact that the license has
15-22 been so cancelled, suspended or revoked. The county clerk of each
15-23 county shall, upon the request of the secretary of the board,
15-24 certify to the board a correct list of the optometrists and
15-25 therapeutic optometrists then registered in the county, together
15-26 with such other information as the board may require>.
15-27 Sec. 5.04. Practice without license; fraud; house-to-house.
15-28 It shall be unlawful for any person to:
15-29 (1) falsely impersonate any person duly licensed as an
15-30 optometrist or therapeutic optometrist under the provisions of this
15-31 Act or to falsely assume another name;
15-32 (2) buy, sell, or fraudulently obtain any optometry
15-33 diploma, optometry or therapeutic optometry license, record of
15-34 registration or aid or abet therein;
15-35 (3) practice, offer, or represent to others that the
15-36 person is <hold himself out as> authorized to practice optometry or
15-37 therapeutic optometry or use in connection with the person's <his>
15-38 name any designation tending to imply that the person <he> is a
15-39 practitioner of optometry or therapeutic optometry if not licensed
15-40 to practice under the provisions of this Act;
15-41 (4) practice optometry or therapeutic optometry during
15-42 the time the <his> license shall be suspended or revoked;
15-43 (5) fill an expired contact lens prescription; or
15-44 (6) practice optometry or therapeutic optometry from
15-45 house-to-house or on the streets or highways, notwithstanding any
15-46 laws for the licensing of peddlers. This shall not be construed as
15-47 prohibiting an optometrist, therapeutic optometrist, or physician
15-48 from attending, prescribing for and furnishing spectacles,
15-49 eyeglasses or ophthalmic lenses to a person who is confined to the
15-50 person's <his> abode by reason of illness or physical or mental
15-51 infirmity, or in response to an unsolicited request or call, for
15-52 such professional services.
15-53 Sec. 5.08. PRACTICE WHILE SUFFERING FROM CONTAGIOUS DISEASE.
15-54 (a) No licensed optometrist or therapeutic optometrist shall
15-55 practice optometry or therapeutic optometry while knowingly
15-56 suffering from a contagious or infectious disease, as defined by
15-57 the Texas Department of Health, if the disease is one that could
15-58 reasonably be transmitted in the normal performance of optometry or
15-59 therapeutic optometry.
15-60 (b) The board by rule shall adopt guidelines that define,
15-61 according to guidelines issued by the Texas Department of Health
15-62 and specific to the practice of optometry or therapeutic optometry,
15-63 each disease or type of disease that could reasonably be
15-64 transmitted in the normal performance of optometry or therapeutic
15-65 optometry.
15-66 SECTION 21. Section 5.09, Texas Optometry Act (Article
15-67 4552-5.09, Vernon's Texas Civil Statutes), is amended by amending
15-68 Subsection (c) and adding Subsection (h) to read as follows:
15-69 (c) Any advertisement of the price of prescription
15-70 spectacles or contact lenses is required to contain the following
16-1 information:
16-2 (1) a statement of whether or not the cost of an
16-3 examination, prescription services, and follow-up care by an eye
16-4 doctor is included in the price;
16-5 (2) if the advertised goods are to be available to the
16-6 public at the advertised price for less than 30 days after the date
16-7 of publication of the advertisement, the advertisement shall state
16-8 the time limitation on the offer;
16-9 (3) if the advertised goods are to be available to the
16-10 public in limited quantities and no rainchecks are given upon total
16-11 depletion of the inventory of the goods advertised, the
16-12 advertisement shall state the total quantity available to all
16-13 customers; <and>
16-14 (4) if the advertised goods are to be available to the
16-15 public at a limited number per customer, the advertisement shall
16-16 state the limit per customer; and
16-17 (5) with regard to contact lenses, the advertisement
16-18 shall state the number of lenses included for the price specified.
16-19 (h) A statement required to appear in an advertisement under
16-20 this section must be readily audible or readable by a person of
16-21 average comprehension or reading speed.
16-22 SECTION 22. Section 5.10, Texas Optometry Act (Article
16-23 4552-5.10, Vernon's Texas Civil Statutes), is amended to read as
16-24 follows:
16-25 Sec. 5.10. BOARD RULES RESTRICTING ADVERTISING. (a) The
16-26 board may not adopt <substantive> rules restricting competitive
16-27 bidding or advertising by a person regulated by the board except to
16-28 prohibit <adopt such rules as are necessary to prevent> false,
16-29 misleading, or deceptive practices.
16-30 (b) The board may not include in its rules to prohibit
16-31 false, misleading, or deceptive practices by a person regulated by
16-32 the board a rule that:
16-33 (1) restricts the use of any medium for advertising;
16-34 (2) restricts the person's personal appearance or use
16-35 of the person's voice in an advertisement;
16-36 (3) relates to the size or duration of an
16-37 advertisement by the person;
16-38 (4) restricts the person's advertisement under a trade
16-39 name;
16-40 (5) restricts any truthful statement regarding:
16-41 (A) the address or telephone number of an office
16-42 maintained by the person;
16-43 (B) office hours regularly maintained by the
16-44 person;
16-45 (C) languages, other than English, fluently
16-46 spoken by the person or a person in the person's office;
16-47 (D) whether the person provides services under a
16-48 specified private or public insurance plan or health-care plan;
16-49 (E) publications authored by the person;
16-50 (F) a teaching position held or formerly held by
16-51 the person and the dates the position was held;
16-52 (G) an affiliation with a hospital or clinic;
16-53 (H) the fact that the person regularly accepts
16-54 installment payment of fees;
16-55 (I) the manufacturer, designer, style, make,
16-56 trade name, brand name, color, size, or type of commodities
16-57 advertised; or
16-58 (J) other factual information that is not false,
16-59 fraudulent, misleading, or likely to deceive; or
16-60 (6) restricts any truthful statement that relates to
16-61 public health or that encourages preventive or corrective care.
16-62 (c) Subsection (b) of this section may not be construed to
16-63 prevent the board from restricting advertising that is false,
16-64 fraudulent, misleading, or likely to deceive.
16-65 SECTION 23. Section 5.12, Texas Optometry Act (Article
16-66 4552-5.12, Vernon's Texas Civil Statutes), is amended to read as
16-67 follows:
16-68 Sec. 5.12. BASIC COMPETENCE. (a) In order to ensure
16-69 <insure> an adequate examination of a patient for whom an
16-70 optometrist or therapeutic optometrist signs or causes to be signed
17-1 a prescription for an ophthalmic lens, in the initial examination
17-2 of the patient the optometrist or therapeutic optometrist shall
17-3 make and record, if possible, the following findings of the
17-4 condition of the patient:
17-5 (1) Case History (ocular, physical, occupational and
17-6 other pertinent information).
17-7 (2) Visual <Far point> acuity<, O.D., O.S., O.U.,
17-8 unaided; with old glasses, if available, and with new glasses, if
17-9 any>.
17-10 (3) Biomicroscopy <External> examination (lids,
17-11 cornea, sclera, etc.).
17-12 (4) Internal ophthalmoscopic examination (media,
17-13 fundus, etc.).
17-14 (5) Static retinoscopy, O.D., O.S., or autorefractor.
17-15 (6) Subjective findings, far point and near point.
17-16 (7) Assessment of binocular function <Phorias or
17-17 ductions, far and near, lateral and vertical>.
17-18 (8) Amplitude or range of accommodation.
17-19 (9) Tonometry <Amplitude or range of convergence>.
17-20 (10) Angle of vision, to right and to left.
17-21 (b) Every prescription for an ophthalmic lens shall include
17-22 <the following information: interpupillary distance, far and near;
17-23 lens prescription, right and left; color or tint; segment type,
17-24 size and position;> the optometrist's or therapeutic optometrist's
17-25 signature and the information and parameters that the optometrist
17-26 or therapeutic optometrist considers relevant or necessary. The
17-27 prescription may not contain restrictions limiting the parameters
17-28 to private labels not available to the optical industry as a whole.
17-29 Specifications of a prescription for an ophthalmic lens may not be
17-30 altered without the consent of the prescribing doctor.
17-31 (c) The willful or repeated failure or refusal of an
17-32 optometrist or therapeutic optometrist to comply with any of the
17-33 foregoing requirements shall be considered by the board to
17-34 constitute prima facie evidence that the optometrist or therapeutic
17-35 optometrist <he> is unfit or incompetent by reason of negligence
17-36 within the meaning of Section 4.04(a)(3) of this Act, and shall be
17-37 sufficient ground for the filing of charges to cancel, revoke or
17-38 suspend the <his> license. The charges shall state the specific
17-39 instances in which it is alleged that the rule was not complied
17-40 with. At a hearing pursuant to the filing of such charges, the
17-41 person charged shall have the burden of establishing that
17-42 compliance with the rule in each instance in which proof is adduced
17-43 that it was not complied with was not necessary to a proper
17-44 examination of the patient in that particular case.
17-45 SECTION 24. Sections 5.13(d), (e), (g), (i), and (j), Texas
17-46 Optometry Act (Article 4552-5.13, Vernon's Texas Civil Statutes),
17-47 are amended to read as follows:
17-48 (d) An optometrist or therapeutic optometrist may practice
17-49 optometry or therapeutic optometry under a trade name or an assumed
17-50 name or under the name of a professional corporation or a
17-51 professional association. Every optometrist or therapeutic
17-52 optometrist practicing in the State of Texas, including those
17-53 practicing under a trade or assumed name, shall be required to
17-54 display the actual name under which the optometrist or therapeutic
17-55 optometrist <he> is licensed by the board in a manner such that the
17-56 <his> name will be visible to the public prior to entry of the
17-57 optometrist's or therapeutic optometrist's office reception area.
17-58 (e) No optometrist or therapeutic optometrist shall use,
17-59 cause or allow to be used, the optometrist's or therapeutic
17-60 optometrist's <his> name or professional identification, as
17-61 authorized by Article 4590e, <as amended,> Revised <Civil> Statutes
17-62 <of Texas, 1925>, and its subsequent amendments, on or about the
17-63 door, window, wall, directory, or any sign or listing whatsoever,
17-64 of any office, location or place where optometry or therapeutic
17-65 optometry is practiced, unless said optometrist or therapeutic
17-66 optometrist is actually present and practicing optometry or
17-67 therapeutic optometry therein during the hours such office,
17-68 location or place of practice is open to the public for the
17-69 practice of optometry or therapeutic optometry.
17-70 (g) The requirement of Subsections (e) and (f) of this
18-1 section that an optometrist or therapeutic optometrist be "actually
18-2 present" in an office, location or place of practice holding the
18-3 optometrist's or therapeutic optometrist's <his> name out to the
18-4 public shall be deemed satisfied if the optometrist or therapeutic
18-5 optometrist is, as to such office, location or place of practice,
18-6 either:
18-7 (1) physically present therein more than half the
18-8 total number of hours such office, location, or place of practice
18-9 is open to the public for the practice of optometry or therapeutic
18-10 optometry during each calendar month for at least nine months in
18-11 each calendar year; or
18-12 (2) physically present in such office, location, or
18-13 place of practice for at least one-half of the time such person
18-14 conducts, directs, or supervises any practice of optometry or
18-15 therapeutic optometry.
18-16 (i) The requirement of Subsections (e) and (f) of this
18-17 section that an optometrist or therapeutic optometrist be
18-18 "practicing optometry or therapeutic optometry" at an office,
18-19 location, or place of practice holding the optometrist's or
18-20 therapeutic optometrist's <his> name out to the public shall be
18-21 deemed satisfied if the optometrist or therapeutic optometrist
18-22 regularly makes personal examination at such office, location, or
18-23 place of practice of the eyes of some of the persons prescribed for
18-24 therein or regularly supervises or directs in person at such
18-25 office, location or place of practice such examinations.
18-26 (j) The willful or repeated failure or refusal of an
18-27 optometrist or therapeutic optometrist to comply with any of the
18-28 provisions of this section shall be considered by the board to
18-29 constitute prima facie evidence that such optometrist or
18-30 therapeutic optometrist is guilty of violation of this Act, and
18-31 shall be sufficient ground for the filing of charges to cancel,
18-32 revoke or suspend a <his> license. The charges shall state the
18-33 specific instance or instances in which it is alleged that the rule
18-34 was not complied with. Alternatively, or in addition to the above,
18-35 it shall be the duty of the board to institute and prosecute an
18-36 action in a court of competent jurisdiction to restrain or enjoin
18-37 the violation of any of the preceding rules.
18-38 SECTION 25. Sections 5.14(c) and (g), Texas Optometry Act
18-39 (Article 4552-5.14, Vernon's Texas Civil Statutes), are amended to
18-40 read as follows:
18-41 (c) The prescription files and all business records of the
18-42 optometric practice shall be the sole property of the optometrist
18-43 or therapeutic optometrist and free from involvement with the
18-44 mercantile establishment or any unlicensed person. Except,
18-45 however, that those business records essential to the successful
18-46 initiation or continuation of a percentage of gross receipts lease
18-47 of space may be inspected by the applicable lessor.
18-48 (g) The optometrist or therapeutic optometrist shall not
18-49 permit the optometrist's or therapeutic optometrist's <his> name or
18-50 <his> practice to be directly or indirectly used in connection with
18-51 the mercantile establishment in any advertising, displays, signs,
18-52 or in any other manner.
18-53 SECTION 26. Sections 5.15(d) and (e), Texas Optometry Act
18-54 (Article 4552-5.15, Vernon's Texas Civil Statutes), are amended to
18-55 read as follows:
18-56 (d) No person, firm, or corporation engaged in the business
18-57 of a dispensing optician, other than a licensed optometrist,
18-58 therapeutic optometrist, or physician, shall have, own, or acquire
18-59 any interest in the practice, books, records, files, equipment, or
18-60 materials of a licensed optometrist or therapeutic optometrist, or
18-61 have, own, or acquire any interest in the premises or space
18-62 occupied by a licensed optometrist or therapeutic optometrist for
18-63 the practice of optometry or therapeutic optometry other than a
18-64 lease for a specific term without retention of the present right of
18-65 occupancy on the part of the dispensing optician. In the event an
18-66 optometrist, therapeutic optometrist, or physician who is also
18-67 engaged in the business of a dispensing optician (whether as an
18-68 individual, firm, or corporation) does own an interest in the
18-69 practice, books, records, files, equipment or materials of another
18-70 licensed optometrist or therapeutic optometrist, the optometrist,
19-1 therapeutic optometrist, or physician <he> shall maintain a
19-2 completely separate set of books, records, files, and accounts in
19-3 connection therewith.
19-4 (e) If, after examining a patient, an optometrist or
19-5 therapeutic optometrist believes that lenses are required to
19-6 correct or remedy any defect or abnormal condition of vision, the
19-7 optometrist or therapeutic optometrist shall so inform the patient
19-8 and shall provide the patient with a copy of the patient's
19-9 spectacle prescription. The optometrist or therapeutic optometrist
19-10 shall expressly indicate verbally or by other means that the
19-11 patient has two alternatives for the preparation of the lenses
19-12 according to the optometrist's or therapeutic optometrist's
19-13 prescription: First, that the optometrist or therapeutic
19-14 optometrist will prepare or have the lenses prepared according to
19-15 the prescription; and second, that the patient may have the
19-16 prescription filled by any dispensing optician but should return
19-17 for an optometrical examination of the lenses. This subsection
19-18 does not require an optometrist or therapeutic optometrist to
19-19 provide a prescription to a patient before the patient has paid the
19-20 examination fee.
19-21 SECTION 27. Section 5.17, Texas Optometry Act (Article
19-22 4552-5.17, Vernon's Texas Civil Statutes), is amended to read as
19-23 follows:
19-24 Sec. 5.17. Exceptions. (a) Nothing in this Act shall be
19-25 construed to apply to <persons who sell ready-to-wear spectacles
19-26 and eyeglasses as merchandise at retail or> officers or agents of
19-27 the United States or the State of Texas, in the discharge of their
19-28 official duties.
19-29 (b) Nothing in this Act shall prevent, limit, or interfere
19-30 with the right of a physician duly licensed by the Texas State
19-31 Board of Medical Examiners to treat or prescribe for <his> patients
19-32 or to direct or instruct others under the control, supervision, or
19-33 direction of such a physician to aid or minister to the needs of
19-34 <his> patients according to the physician's specific directions,
19-35 instructions or prescriptions; and where such directions,
19-36 instructions, or prescriptions are to be followed, performed, or
19-37 filled outside or away from the physician's office such directions,
19-38 instructions, or prescriptions shall be in writing.
19-39 (c) Nothing in this Act shall be construed to prevent
19-40 persons from selling ready-to-wear spectacles as merchandise at
19-41 retail, nor to prevent unlicensed persons from making simple
19-42 repairs to spectacles.
19-43 (d) Nothing in this Act shall prevent, limit, or interfere
19-44 with the right of a dispensing optician or ophthalmic dispenser
19-45 registered under the Opticians' Registry Act (Article 4551-1,
19-46 Vernon's Texas Civil Statutes) and its subsequent amendments to
19-47 engage in spectacle or contact lens dispensing as defined by that
19-48 Act. This subsection does not prohibit the board from acting under
19-49 this Act to restrict the unauthorized practice of optometry.
19-50 SECTION 28. Section 5.18, Texas Optometry Act (Article
19-51 4552-5.18, Vernon's Texas Civil Statutes), is amended by amending
19-52 Subsections (a) and (b) and adding Subsection (e) to read as
19-53 follows:
19-54 (a) It shall be a violation of this Act for any person who
19-55 is not a licensed optometrist, therapeutic optometrist, or
19-56 physician to engage in the practice of optometry or therapeutic
19-57 optometry as such practices are defined by this Act or to engage in
19-58 any activity prohibited by this Act.
19-59 (b) Any person who shall be injured by another person who
19-60 violates this section may institute suit in any district court in
19-61 Travis County or in the county wherein the violation is alleged to
19-62 have occurred to require enforcement by injunctive procedures and
19-63 to recover damages sustained, plus costs of court and reasonable
19-64 attorney's fees.
19-65 (e) A person commits an offense if that person dispenses
19-66 contact lenses by mail or otherwise to a patient in this state
19-67 without having a valid prescription signed by an optometrist,
19-68 therapeutic optometrist, or physician. An offense under this
19-69 subsection is a misdemeanor punishable by a fine in the amount of
19-70 $1,000 for each lens so dispensed. This fine is in addition to any
20-1 other penalty imposed under this Act.
20-2 SECTION 29. Section 5.19, Texas Optometry Act (Article
20-3 4552-5.19, Vernon's Texas Civil Statutes), is amended to read as
20-4 follows:
20-5 Sec. 5.19. PENALTY. A person who violates any provision of
20-6 this Act is guilty of a misdemeanor and upon conviction is
20-7 punishable by a fine of not less than $100 <$50> nor more than
20-8 $1,000 <$500> or by confinement in the county jail for not less
20-9 than two months nor more than six months, or both. A separate
20-10 offense is committed each day a violation of this Act occurs or
20-11 continues.
20-12 SECTION 30. Article 5, Texas Optometry Act (Article
20-13 4552-5.01 et seq., Vernon's Texas Civil Statutes), is amended by
20-14 adding Section 5.21 to read as follows:
20-15 Sec. 5.21. OWNERSHIP OF RECORDS. (a) All prescription
20-16 files, patient records, and business records of an optometric
20-17 practice are the sole property of the optometrist or therapeutic
20-18 optometrist.
20-19 (b) A patient may obtain a copy of the patient's optometric
20-20 records, or may have them forwarded to another doctor, by making a
20-21 signed, written request to the optometrist or therapeutic
20-22 optometrist for the records.
20-23 (c) The optometrist or therapeutic optometrist may charge a
20-24 reasonable processing fee for providing optometric records to a
20-25 patient.
20-26 (d) The optometric records may be provided in summary form
20-27 unless the patient specifically requests otherwise.
20-28 SECTION 31. The Texas Optometry Act (Article 4552-1.01 et
20-29 seq., Vernon's Texas Civil Statutes) is amended by amending Article
20-30 6 and adding Article 7 to read as follows:
20-31 ARTICLE 6. DISCRIMINATION PROHIBITED <MISCELLANEOUS PROVISIONS>
20-32 Sec. 6.01. GOVERNMENTAL DISCRIMINATION PROHIBITED. (a) A
20-33 program supported, in whole or in part, by this state, or a program
20-34 supported or provided by a state agency, or a county, municipality,
20-35 or other political subdivision, may not discriminate against a
20-36 health-care practitioner because the practitioner is an optometrist
20-37 or therapeutic optometrist or physician specializing in
20-38 ophthalmology.
20-39 (b) A law of this state or a rule, ordinance, or policy of
20-40 an agency or political subdivision of this state that requires or
20-41 encourages a person to obtain vision care or medical eye care that
20-42 is within the scope of practice of an optometrist or therapeutic
20-43 optometrist may not discriminate against a health-care practitioner
20-44 because the practitioner is an optometrist or therapeutic
20-45 optometrist or physician specializing in ophthalmology.
20-46 ARTICLE 7. MISCELLANEOUS PROVISIONS
20-47 Sec. 7.01. REFERENCE TO BOARD OF EXAMINERS <ABOLISHED>.
20-48 <The Texas State Board of Examiners in Optometry is abolished. All
20-49 property, equipment, records, files, and papers in the possession
20-50 of that board are transferred to the Texas Optometry Board created
20-51 by this Act.> All references in the statutes to the Texas State
20-52 Board of Examiners in Optometry shall be construed to mean the
20-53 Texas Optometry Board.
20-54 Sec. 7.02 <6.02>. Severability. If any provision, section
20-55 or clause of this Act or application thereof to any person or
20-56 circumstances is held invalid, such invalidity shall not affect
20-57 other provisions or applications thereof which can be given effect
20-58 without the invalid provision, section or clause, and to this end
20-59 the provisions of this Act are declared to be severable.
20-60 <Sec. 6.03. REPEALER. Chapter 10, Title 71, Revised Civil
20-61 Statutes of Texas, 1925, as amended, and Chapter 5, Title 12, Penal
20-62 Code of Texas, 1925, as amended, and all other laws and parts of
20-63 laws in conflict with this Act are hereby repealed.>
20-64 <Sec. 6.04. EFFECTIVE DATE. This Act takes effect September
20-65 1, 1969.>
20-66 <Sec. 6.05. EMERGENCY. The fact that the practice of
20-67 optometry has become one of the important health professions and it
20-68 is in the interest of the people of Texas that the practice of
20-69 optometry and that optometrists, in keeping with the traditions of
20-70 the other health professions, be properly regulated, and the
21-1 further fact that existing laws have proved ineffective in securing
21-2 the underlying purposes and objectives of this Act, create an
21-3 emergency of the greatest importance to the visual health and
21-4 welfare of the people of Texas and an imperative public necessity
21-5 requiring that the Constitutional Rule that bills be read on three
21-6 several days in each House be suspended, and such Rule is hereby
21-7 suspended; and this Act shall take effect and be in force from and
21-8 after its passage, and it is so enacted.>
21-9 SECTION 32. Subchapter E, Chapter 21, Insurance Code, is
21-10 amended by adding Article 21.52D to read as follows:
21-11 Art. 21.52D. USE OF OPTOMETRISTS AND OPHTHALMOLOGISTS BY
21-12 MANAGED CARE PLAN. (a) In this article:
21-13 (1) "Managed care plan" means a health maintenance
21-14 organization, a preferred provider organization, or another
21-15 organization that provides or arranges for health care benefits to
21-16 participants and that requires or encourages participants to use
21-17 health care practitioners designated by the plan.
21-18 (2) "Ophthalmologist" means a physician who is
21-19 licensed by the Texas State Board of Medical Examiners and who
21-20 specializes in ophthalmology.
21-21 (b) A managed care plan that provides or arranges for
21-22 benefits for vision or medical eye care services or procedures that
21-23 are within the scope of the license of an optometrist or
21-24 therapeutic optometrist may not:
21-25 (1) discriminate against a health care practitioner
21-26 because the practitioner is an optometrist, therapeutic
21-27 optometrist, or ophthalmologist;
21-28 (2) fail to include optometrists, therapeutic
21-29 optometrists, and ophthalmologists as participating practitioners
21-30 in the plan;
21-31 (3) restrict or discourage a participant from
21-32 obtaining covered vision or medical eye care services or procedures
21-33 from a participating optometrist, therapeutic optometrist, or
21-34 ophthalmologist because the practitioner is an optometrist,
21-35 therapeutic optometrist, or ophthalmologist;
21-36 (4) fail to include the name of a participating
21-37 optometrist, therapeutic optometrist, or ophthalmologist on a list
21-38 of participating practitioners or fail to give equal prominence to
21-39 the name;
21-40 (5) fail to include an optometrist, therapeutic
21-41 optometrist, or ophthalmologist as a participating practitioner in
21-42 the plan because the optometrist, therapeutic optometrist, or
21-43 ophthalmologist does not have medical staff privileges at a
21-44 hospital or at a particular hospital; or
21-45 (6) fail to include an optometrist, therapeutic
21-46 optometrist, or ophthalmologist as a participating practitioner in
21-47 the plan because the services or procedures provided by the
21-48 optometrist, therapeutic optometrist, or ophthalmologist may be
21-49 provided by another type of practitioner.
21-50 (c) This article does not require a managed care plan to
21-51 provide vision or medical eye care services or procedures.
21-52 SECTION 33. The changes in law made by this Act to the
21-53 requirements for membership on the Texas Optometry Board apply only
21-54 to an appointment made on or after the effective date of this Act
21-55 and do not affect the entitlement of a member serving on the board
21-56 on the effective date of this Act to continue to hold office for
21-57 the remainder of the term for which the person was appointed.
21-58 SECTION 34. On and after January 1, 1994, the State Office
21-59 of Administrative Hearings shall assume responsibility for hearings
21-60 held with respect to each contested case arising under the Texas
21-61 Optometry Act (Article 4552-1.01 et seq., Vernon's Texas Civil
21-62 Statutes). The Texas Optometry Board and the chief administrative
21-63 law judge of the State Office of Administrative Hearings may agree
21-64 to transfer contested cases pending before the board to the State
21-65 Office of Administrative Hearings before January 1, 1994.
21-66 SECTION 35. Not later than January 1, 1994, each person
21-67 licensed under the Texas Optometry Act (Article 4552-1.01 et seq.,
21-68 Vernon's Texas Civil Statutes) shall file with the Texas Optometry
21-69 Board the information required under Section 5.02, Texas Optometry
21-70 Act (Article 4552-5.02, Vernon's Texas Civil Statutes), as amended
22-1 by this Act.
22-2 SECTION 36. The Texas Optometry Board shall adopt rules
22-3 required by this Act not later than December 31, 1993.
22-4 SECTION 37. Article 21.52D, Insurance Code, as added by this
22-5 Act, applies only to a managed care plan that is delivered, issued
22-6 for delivery, or renewed on or after January 1, 1994. A managed
22-7 care plan that is delivered, issued for delivery, or renewed before
22-8 January 1, 1994, is governed by the law as it existed immediately
22-9 before the effective date of this Act, and that law is continued in
22-10 effect for that purpose.
22-11 SECTION 38. This Act takes effect September 1, 1993.
22-12 SECTION 39. The importance of this legislation and the
22-13 crowded condition of the calendars in both houses create an
22-14 emergency and an imperative public necessity that the
22-15 constitutional rule requiring bills to be read on three several
22-16 days in each house be suspended, and this rule is hereby suspended.
22-17 * * * * *
22-18 Austin,
22-19 Texas
22-20 May 21, 1993
22-21 Hon. Bob Bullock
22-22 President of the Senate
22-23 Sir:
22-24 We, your Committee on Health and Human Services to which was
22-25 referred H.B. No. 1479, have had the same under consideration, and
22-26 I am instructed to report it back to the Senate with the
22-27 recommendation that it do not pass, but that the Committee
22-28 Substitute adopted in lieu thereof do pass and be printed.
22-29 Zaffirini,
22-30 Chair
22-31 * * * * *
22-32 WITNESSES
22-33 FOR AGAINST ON
22-34 ___________________________________________________________________
22-35 Name: Ron Allen x
22-36 Representing: Sunset Staff
22-37 City: Austin
22-38 -------------------------------------------------------------------
22-39 Name: Lois Ewald x
22-40 Representing: Tx Optometry Board
22-41 City: Austin
22-42 -------------------------------------------------------------------
22-43 Name: Kim Castleberry x
22-44 Representing: Tx Optometric Asso.
22-45 City: Plano
22-46 -------------------------------------------------------------------