By: Parker S.B. No. 1063
73R4153 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of optometry and to the continuation and
1-3 functions of the Texas Optometry Board; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 2.01 and 2.01a, Texas Optometry Act
1-6 (Articles 4552-2.01 and 4552-2.01a, Vernon's Texas Civil Statutes),
1-7 are amended to read as follows:
1-8 Sec. 2.01. Board created. The Texas Optometry Board is
1-9 created. The board is composed of nine members appointed by the
1-10 governor with the advice and consent of the Senate. Appointments
1-11 to the board shall be made without regard to the race, color,
1-12 disability <creed>, sex, religion, or national origin of the
1-13 appointees.
1-14 Sec. 2.01a. Sunset Provision. The Texas Optometry Board is
1-15 subject to Chapter 325, Government Code (Texas Sunset Act). Unless
1-16 continued in existence as provided by that chapter, the board is
1-17 abolished and this Act expires September 1, 2005 <1993>.
1-18 SECTION 2. Sections 2.02(a), (b), (d), (e), (f), (g), and
1-19 (h), Texas Optometry Act (Article 4552-2.02, Vernon's Texas Civil
1-20 Statutes), are amended to read as follows:
1-21 (a) Six members must be licensed optometrists or therapeutic
1-22 optometrists who have been residents of this state actually engaged
1-23 in the practice of optometry or therapeutic optometry in this state
1-24 for the period of five years immediately preceding their
2-1 appointment. <Three of the six optometrist or therapeutic
2-2 optometrist members must be affiliated with the Texas Optometric
2-3 Association, Inc., and the other three optometrist or therapeutic
2-4 optometrist members must be affiliated with the Texas Association
2-5 of Optometrists, Inc. A board member may not simultaneously be a
2-6 member of both the Texas Optometric Association, Inc., and the
2-7 Texas Association of Optometrists, Inc.>
2-8 (b) Three members must be representatives of the general
2-9 public. A person is not eligible for appointment as a public
2-10 member of the board if the person or the person's spouse:
2-11 (1) is registered, certified, or licensed by an
2-12 occupational regulatory agency in the field of health care;
2-13 (2) is employed by or participates in the management
2-14 of <or is an officer or paid consultant of> a business entity or
2-15 other organization regulated by the board or receiving funds from
2-16 the board <that provides health-care services or that sells,
2-17 manufactures, or distributes health-care supplies or equipment>;
2-18 <or>
2-19 (3) owns or<,> controls, <or has,> directly or
2-20 indirectly, more than a 10 percent <a financial> interest in a
2-21 business entity or other organization regulated by the board or
2-22 receiving funds from the board; or
2-23 (4) uses or receives a substantial amount of tangible
2-24 goods, services, or funds from the board, other than compensation
2-25 or reimbursement authorized by law for board membership,
2-26 attendance, or expenses <that provides health-care services or that
2-27 sells, manufactures, or distributes health-care supplies or
3-1 equipment>.
3-2 (d) A person <who is required to register as a lobbyist
3-3 under Chapter 305, Government Code,> may not serve as a member of
3-4 the board or act as the general counsel to the board if the person
3-5 is required to register as a lobbyist under Chapter 305, Government
3-6 Code, because of the person's activities for compensation on behalf
3-7 of a profession related to the operation of the board.
3-8 (e) It is a ground for removal from the board if a member:
3-9 (1) does not have at the time of appointment the
3-10 qualifications required by Subsection (a) or (b) of this section
3-11 <for appointment to the board>;
3-12 (2) does not maintain during <his> service on the
3-13 board the qualifications required by Subsection (a) or<,> (b)<,
3-14 (c), or (d)> of this section for appointment to the board; <or>
3-15 (3) violates a prohibition established by Subsection
3-16 (b) or (d) or this section;
3-17 (4) cannot discharge the member's duties for a
3-18 substantial part of the term for which the member is appointed
3-19 because of illness or disability; or
3-20 (5) is absent from more than half of the regularly
3-21 scheduled board meetings that the member is eligible to attend
3-22 during a calendar year unless the absence is excused by majority
3-23 vote of the board <fails to attend at least half of the regularly
3-24 scheduled board meetings held in a calendar year, excluding
3-25 meetings held while the person was not a board member>.
3-26 (f) The validity of an action of the board is not affected
3-27 by the fact that it is <was> taken when a ground for removal of a
4-1 board member exists <of the board existed>.
4-2 (g) If the executive director of the agency has knowledge
4-3 that a potential ground for removal exists, the executive director
4-4 shall notify the presiding officer of the board of the ground. The
4-5 presiding officer shall then notify the governor that a potential
4-6 ground for removal exists <It shall be the duty of any board member
4-7 who no longer maintains the qualifications required by Subsection
4-8 (a), (b), (c), or (d) of this section to immediately inform the
4-9 governor and the attorney general of that fact and to resign from
4-10 the board>.
4-11 (h) Each board member shall comply with the board member
4-12 training requirements established by any other state agency that is
4-13 given authority to establish the requirements for the board <Upon
4-14 complaint by any person to the attorney general that a member of
4-15 the board no longer maintains the qualifications required by
4-16 Subsection (a), (b), (c), or (d) of this section, the attorney
4-17 general shall investigate the complaint; and if the attorney
4-18 general determines that there is reason to believe the complaint is
4-19 valid, the attorney general shall institute suit in Travis County
4-20 district court to have the board member in question removed from
4-21 office>.
4-22 SECTION 3. Sections 2.03 and 2.04, Texas Optometry Act
4-23 (Articles 4552-2.03 and 4552-2.04, Vernon's Texas Civil Statutes),
4-24 are amended to read as follows:
4-25 Sec. 2.03. Terms of office. The members of the board hold
4-26 office for staggered terms of six years, with the terms of two
4-27 members appointed in accordance with Section 2.02(a) of this Act
5-1 <one member affiliated with the Texas Optometric Association, Inc.,
5-2 one member affiliated with the Texas Association of Optometrists,
5-3 Inc.,> and one public member expiring on January 31 of each
5-4 odd-numbered year.
5-5 Sec. 2.04. Organization of board. Every two years the board
5-6 shall elect a presiding officer, assistant presiding officer
5-7 <chairman, a vice-chairman>, and a secretary-treasurer<, provided
5-8 that the chairman and vice-chairman shall not be from the same
5-9 group of the three groups represented on the board>.
5-10 SECTION 4. Sections 2.06(b) and (f), Texas Optometry Act
5-11 (Article 4552-2.06, Vernon's Texas Civil Statutes), are amended to
5-12 read as follows:
5-13 (b) A record shall be kept showing the name, age, and
5-14 present legal and mailing address of each applicant for
5-15 examination, the name and location of the school of optometry from
5-16 which the applicant <he> holds credentials, and the time devoted to
5-17 the study and practice of optometry, together with such information
5-18 as the board may desire to record. Said record shall also show
5-19 whether applicants were rejected or licensed and shall be prima
5-20 facie evidence of all matters therein contained. The secretary of
5-21 the board shall on or before March 1 of each year send a certified
5-22 copy of said record to the secretary of state for permanent record.
5-23 A certified copy of said record with the hand and seal of the
5-24 secretary of said board to the secretary of state, shall be
5-25 admitted as evidence in all courts.
5-26 (f) The board shall maintain <an information file about
5-27 each> complaint files in accordance with Section 4.06 of this Act
6-1 <filed with the board relating to a licensee. If a written
6-2 complaint is filed with the board relating to a licensee, the
6-3 board, at least as frequently as quarterly and until final
6-4 disposition of the complaint, shall notify the parties to the
6-5 complaint of the status of the complaint unless the notification
6-6 would jeopardize an undercover investigation>.
6-7 SECTION 5. Section 2.08, Texas Optometry Act (Article
6-8 4552-2.08, Vernon's Texas Civil Statutes), is amended by amending
6-9 Subsections (b) and (c) and adding Subsections (d), (e), (f), and
6-10 (g) to read as follows:
6-11 (b) The executive director of the board or the executive
6-12 director's <his> designee shall develop an intra-agency
6-13 <intraagency> career ladder program. The program shall require
6-14 intra-agency<, one part of which shall be the intraagency> posting
6-15 of all nonentry level positions concurrently with <for at least 10
6-16 days before> any public posting.
6-17 (c) The executive director of the board or the executive
6-18 director's <his> designee shall develop a system of annual
6-19 performance evaluations based on measurable job tasks. All merit
6-20 pay for board employees must be based on the system established
6-21 under this subsection.
6-22 (d) The executive director of the board or the executive
6-23 director's designee shall prepare and maintain a written policy
6-24 statement to assure implementation of a program of equal
6-25 opportunity under which all personnel transactions are made without
6-26 regard to race, color, disability, sex, religion, age, or national
6-27 origin. The policy statement must include:
7-1 (1) personnel policies, including policies relating to
7-2 recruitment, evaluation, selection, appointment, training, and
7-3 promotion of personnel, that are in compliance with requirements of
7-4 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
7-5 Civil Statutes) and its subsequent amendments;
7-6 (2) a comprehensive analysis of the board work force
7-7 that meets federal and state guidelines;
7-8 (3) procedures by which a determination can be made of
7-9 significant underuse in the board work force of all persons for
7-10 whom federal or state guidelines encourage a more equitable
7-11 balance; and
7-12 (4) reasonable methods to appropriately address those
7-13 areas of significant underuse.
7-14 (e) A policy statement prepared under Subsection (d) of this
7-15 section must cover an annual period, be updated annually, be
7-16 reviewed by the Human Rights Commission for compliance with
7-17 Subsection (d)(1) of this section, and be filed with the governor's
7-18 office.
7-19 (f) The governor's office shall deliver a biennial report to
7-20 the legislature based on information received under Subsection (e)
7-21 of this section. The report may be made separately or as part of
7-22 other biennial reports made to the legislature.
7-23 (g) The board shall develop and implement policies that
7-24 clearly define the respective responsibilities of the board and the
7-25 staff of the board.
7-26 SECTION 6. Sections 2.10 and 2.11, Texas Optometry Act
7-27 (Articles 4552-2.10 and 4552-2.11, Vernon's Texas Civil Statutes),
8-1 are amended to read as follows:
8-2 Sec. 2.10. Proceedings; subpoenas; oaths. The board, any
8-3 committee, or any member thereof, shall have the power to issue
8-4 subpoenas and subpoenas duces tecum to compel the attendance of
8-5 witnesses and the production of books, records and documents, to
8-6 administer oaths and to take testimony concerning all matters
8-7 within the <its or his> jurisdiction of the board, committee, or
8-8 member. The board shall not be bound by strict rules of procedure
8-9 or by the laws of evidence in the conduct of its proceedings but
8-10 the determination shall be founded upon sufficient legal evidence
8-11 to sustain it.
8-12 Sec. 2.11. Bond of secretary-treasurer. Before entering
8-13 upon the discharge of the duties of <his> office, the
8-14 secretary-treasurer of the board shall give such bond for the
8-15 performance of the secretary-treasurer's <his> duties as the board
8-16 may require, the premium of which is to be paid from funds in the
8-17 possession of the board.
8-18 SECTION 7. Section 2.14(a), Texas Optometry Act (Article
8-19 4552-2.14, Vernon's Texas Civil Statutes), is amended to read as
8-20 follows:
8-21 (a) The board may by a majority vote of a quorum promulgate
8-22 procedural rules and regulations. The board may by a two-thirds
8-23 majority vote of <each of the three groups represented on> the
8-24 board promulgate substantive rules and set fees. However, the
8-25 board may not promulgate any rule or regulation which is in any way
8-26 contrary to the underlying and fundamental purposes of this Act or
8-27 make any rule or regulation which is unreasonable, arbitrary,
9-1 capricious, or illegal. The board may not promulgate any
9-2 substantive rule prior to submitting the proposed rule to the
9-3 attorney general for a ruling on the proposed rule's validity.
9-4 SECTION 8. Sections 2.15(a) and (d), Texas Optometry Act
9-5 (Article 4552-2.15, Vernon's Texas Civil Statutes), are amended to
9-6 read as follows:
9-7 (a) Except as provided by Subsection (b) of this section,
9-8 the fund realized from all fees payable under this Act shall first
9-9 be applied to the payment of all necessary expenses of the board,
9-10 and the remainder shall be applied, by order of the board, to
9-11 compensate members of the board. Each member of the board is
9-12 entitled to a per diem as set by legislative appropriation for each
9-13 day that the member engages in the business of the board. A member
9-14 may not receive any compensation for travel expenses, including
9-15 expenses for meals and lodging, other than transportation expenses.
9-16 A member is entitled to compensation for transportation expenses as
9-17 provided by the General Appropriations Act. Each board member
9-18 shall make out, under oath, a complete statement of the number of
9-19 days engaged and the amount of the member's <his> expenses when
9-20 presenting same for payment.
9-21 (d) The <On or before January 1 of each year, the> board
9-22 shall file annually with <make in writing to> the governor and the
9-23 presiding officer of each house of the legislature a complete and
9-24 detailed written <annual> report accounting for all funds received
9-25 and disbursed by the board during the preceding fiscal year. The
9-26 annual report must be in the form and reported in the time provided
9-27 by the General Appropriations Act.
10-1 SECTION 9. Article 2, Texas Optometry Act (Article 4552-2.01
10-2 et seq., Vernon's Texas Civil Statutes), is amended by adding
10-3 Sections 2.16, 2.17, 2.18, and 2.19 to read as follows:
10-4 Sec. 2.16. QUALIFICATIONS FOR OFFICE OR EMPLOYMENT. The
10-5 board shall provide to its members and employees, as often as
10-6 necessary, information regarding their qualification for office or
10-7 employment under this Act and their responsibilities under
10-8 applicable law relating to standards of conduct for state officers
10-9 or employees.
10-10 Sec. 2.17. PUBLIC INTEREST INFORMATION. (a) The board
10-11 shall prepare information of public interest describing the
10-12 functions of the board and the board's procedures by which
10-13 complaints are filed with and resolved by the board. The board
10-14 shall make the information available to the public and appropriate
10-15 state agencies.
10-16 (b) The board by rule shall establish methods by which
10-17 consumers and service recipients are notified of the name, mailing
10-18 address, and telephone number of the board for the purpose of
10-19 directing complaints to the board. The board may provide for that
10-20 notification:
10-21 (1) on each registration form, application, or written
10-22 contract for services of an individual or entity regulated under
10-23 this Act;
10-24 (2) on a sign prominently displayed in the place of
10-25 business of each individual or entity regulated under this Act; or
10-26 (3) in a bill for services provided by an individual
10-27 or entity regulated under this Act.
11-1 (c) The board shall list along with its regular telephone
11-2 number the toll-free telephone number that may be called to present
11-3 a complaint about a health professional if the toll-free number is
11-4 established under other state law.
11-5 Sec. 2.18. PUBLIC PARTICIPATION IN BOARD HEARINGS. The
11-6 board shall develop and implement policies that provide the public
11-7 with a reasonable opportunity to appear before the board and to
11-8 speak on any issue under the jurisdiction of the board.
11-9 Sec. 2.19. PROGRAM ACCESSIBILITY. The board shall prepare
11-10 and maintain a written plan that describes how a person who does
11-11 not speak English can be provided reasonable access to the board's
11-12 programs. The board shall also comply with federal and state laws
11-13 for program and facility accessibility.
11-14 SECTION 10. Section 3.01, Texas Optometry Act (Article
11-15 4552-3.01, Vernon's Texas Civil Statutes), is amended to read as
11-16 follows:
11-17 Sec. 3.01. Must pass examination. Every person hereafter
11-18 desiring to be licensed to practice therapeutic optometry in this
11-19 state shall be required to pass the examination given by the Texas
11-20 Optometry Board. <However, the board may adopt substantive rules
11-21 to authorize the waiver of this or other license requirements for
11-22 an applicant with a valid license from another state having, at the
11-23 time of the applicant's initial licensure in that state, license
11-24 requirements and continuing education requirements substantially
11-25 equivalent to those currently required in this state.> The
11-26 examination must include examination in pharmacology and related
11-27 pathology.
12-1 SECTION 11. Section 3.02(a), Texas Optometry Act (Article
12-2 4552-3.02, Vernon's Texas Civil Statutes), is amended to read as
12-3 follows:
12-4 (a) The applicant shall make application, furnishing to the
12-5 secretary of the board, on forms to be furnished by the board,
12-6 satisfactory sworn evidence that the applicant <he> has attained
12-7 the age of majority, is of good moral character, and has at least
12-8 graduated from a first grade high school, or has a preliminary
12-9 education equivalent to permit the applicant <him> to matriculate
12-10 in The University of Texas, and that the applicant <he> has
12-11 attended and graduated from a reputable university or college of
12-12 optometry which meets with the requirements of the board, and such
12-13 other information as the board may deem necessary for the
12-14 enforcement of this Act.
12-15 SECTION 12. Section 3.03, Texas Optometry Act (Article
12-16 4552-3.03, Vernon's Texas Civil Statutes), is amended to read as
12-17 follows:
12-18 Sec. 3.03. Fees. (a) The board shall establish reasonable
12-19 and necessary fees so that the fees, in the aggregate, produce
12-20 sufficient revenue to cover the cost of administering <for the
12-21 administration of> this Act. The fees established by the board
12-22 under this section may include fees for examination,
12-23 re-examination, issuance of a license, renewal of a license, and
12-24 issuance of a duplicate license. The board may not set a fee for
12-25 an amount less than the amount of that fee on September 1, 1993.
12-26 The fees may be adjusted upward to reflect increased costs in the
12-27 administration of this Act. <in amounts not to exceed:>
13-1 <1. Examination $ 55>
13-2 <2. Re-examination 20>
13-3 <3. License 40>
13-4 <4. License renewal 135>
13-5 <5. Lost license 15>
13-6 The board shall not maintain unnecessary fund balances, and fee
13-7 amounts shall be set in accordance with this requirement.
13-8 (b) If anyone successfully passing the examination and
13-9 meeting the requirements of the board has not paid the fee for
13-10 issuance of a license within 90 days after having been notified by
13-11 registered mail at the address given on the <his> examination
13-12 papers, or at the time of the examination, that the person <he> is
13-13 eligible for the license <same>, such person shall by the person's
13-14 <his> own act have waived the <his> right to obtain the <his>
13-15 license, and the board may at its discretion refuse to issue such
13-16 license until such person has taken and successfully passed another
13-17 examination.
13-18 SECTION 13. Section 3.06, Texas Optometry Act (Article
13-19 4552-3.06, Vernon's Texas Civil Statutes), is amended to read as
13-20 follows:
13-21 Sec. 3.06. Conduct of examination. All examinations shall
13-22 be conducted in writing and by such other means as the board shall
13-23 determine adequate to ascertain the qualifications of applicants
13-24 and in such manner as shall be entirely fair and impartial to all
13-25 individuals and every recognized school of optometry. The board
13-26 shall have the written portion of the examination validated by an
13-27 independent testing professional. All applicants examined at the
14-1 same time shall be given the same written examination. Within 30
14-2 days after the date a licensing examination is administered under
14-3 this Act, the board shall notify each examinee of the results of
14-4 the examination. However, if an examination is graded or reviewed
14-5 by a national testing service, the board shall notify each examinee
14-6 of the results of the examination within two weeks after the date
14-7 the board receives the results from the testing service. If the
14-8 notice of the examination results will be delayed for more than 90
14-9 days after the examination date, the board shall notify each
14-10 examinee of the reason for the delay before the 90th day. If
14-11 requested in writing by a person who fails the licensing
14-12 examination administered under this Act, the board shall furnish
14-13 the person with an analysis of the person's performance on the
14-14 examination.
14-15 SECTION 14. Article 3, Texas Optometry Act (Article
14-16 4552-3.01 et seq., Vernon's Texas Civil Statutes), is amended by
14-17 adding Sections 3.08, 3.09, 3.10, and 3.11 to read as follows:
14-18 Sec. 3.08. TEMPORARY LICENSE. (a) The board by rule may
14-19 adopt a procedure for issuance of a temporary license to an
14-20 applicant other than an applicant subject to Section 3.09 of this
14-21 Act.
14-22 (b) Rules adopted under this section shall establish
14-23 criteria for issuance of a temporary license and shall establish a
14-24 maximum period during which a temporary license may remain in
14-25 effect.
14-26 Sec. 3.09. PROVISIONAL LICENSE FOR PERSON LICENSED IN
14-27 ANOTHER STATE. (a) On application, the board shall grant a
15-1 provisional license to practice optometry or therapeutic optometry.
15-2 An applicant for a provisional license under this section must:
15-3 (1) be licensed in good standing as an optometrist or
15-4 therapeutic optometrist in another state, the District of Columbia,
15-5 or a territory of the United States that has licensing requirements
15-6 that are substantially equivalent to the requirements of this Act;
15-7 (2) have passed a national or other examination
15-8 recognized by the board relating to the practice of optometry or
15-9 therapeutic optometry; and
15-10 (3) be sponsored by a person licensed by the board
15-11 under this Act with whom the provisional license holder may
15-12 practice under this section.
15-13 (b) An applicant for a provisional license may be excused
15-14 from the requirement of Subsection (a)(3) of this section if the
15-15 board determines that compliance with that subdivision constitutes
15-16 a hardship to the applicant.
15-17 (c) A provisional license is valid until the date the board
15-18 approves or denies the provisional license holder's application for
15-19 a license. The board shall issue a license under this Act to the
15-20 holder of a provisional license under this section if:
15-21 (1) the provisional license holder passes the
15-22 examination required by Section 3.01 of this Act;
15-23 (2) the board verifies that the provisional license
15-24 holder has the academic and experience requirements for a license
15-25 under this Act; and
15-26 (3) the provisional license holder satisfies any other
15-27 license requirements under this Act.
16-1 (d) The board must complete the processing of a provisional
16-2 license holder's application for a license not later than the 180th
16-3 day after the date the provisional license is issued.
16-4 Sec. 3.10. LIMITED LICENSE FOR CLINICAL FACULTY. (a) The
16-5 board by rule may provide for the issuance of a limited license to
16-6 a full-time clinical faculty member of an institution of higher
16-7 education of this state who provides instruction in optometry or
16-8 therapeutic optometry.
16-9 (b) A license under this section may authorize the faculty
16-10 member to practice optometry or therapeutic optometry only on the
16-11 premises of the institution of higher education and its affiliated
16-12 teaching clinics and only as part of the institution's teaching
16-13 program.
16-14 (c) The board by rule may adopt criteria and fees for
16-15 issuance and renewal of a license under this section.
16-16 Sec. 3.11. INACTIVE STATUS. The board by rule may provide
16-17 for a person who holds a license under this Act to be placed on
16-18 inactive status. Rules adopted under this section shall include a
16-19 time limit for a license holder to remain on inactive status.
16-20 SECTION 15. Section 4.01, Texas Optometry Act (Article
16-21 4552-4.01, Vernon's Texas Civil Statutes), is amended to read as
16-22 follows:
16-23 Sec. 4.01. Annual renewal. (a) On or before January 1 of
16-24 each year, every licensed optometrist and therapeutic optometrist
16-25 in this state shall pay to the secretary-treasurer of the board an
16-26 annual renewal fee for the renewal of a <his> license to practice
16-27 optometry or therapeutic optometry for the current year. The
17-1 amount of the fee shall be as determined by the board. A person
17-2 may renew an unexpired license by paying to the board before the
17-3 expiration date of the license the required renewal fee.
17-4 (b) If a person's license has been expired for 90 <not more
17-5 than 180> days or less, the person may renew the license by paying
17-6 to the board the required renewal fee and a fee that is one-half of
17-7 the examination fee for the license.
17-8 (c) If a person's license has been expired for longer than
17-9 90 <more than 180> days but less than one year <three years>, the
17-10 person may renew the license by paying to the board all unpaid
17-11 renewal fees and a fee that is equal to the examination fee for the
17-12 license.
17-13 (d) If a person's license has been expired for one year or
17-14 longer <three years or more>, the person may not renew the license.
17-15 The person may obtain a new license by submitting to reexamination
17-16 and complying with the requirements and procedures for obtaining an
17-17 original license. However, the board may renew without examination
17-18 an expired license of a person who was licensed in this state,
17-19 moved to another state, and is currently licensed and has been in
17-20 practice in the other state for the two years preceding
17-21 application. The person must pay to the board a fee that is equal
17-22 to the examination fee for the license.
17-23 (e) At least 30 days before the expiration of a person's
17-24 license, the board shall send written notice of the impending
17-25 license expiration to the person at the person's last known address
17-26 according to the records of the board.
17-27 (f) <(b)> On receipt of the required fees, the board shall
18-1 issue an annual renewal certificate bearing the number of the
18-2 license, the year for which renewed, and such other information
18-3 from the records of the board as said board may deem necessary for
18-4 the proper enforcement of this Act.
18-5 (g) <(c) When the person's license has been expired for
18-6 three years, the board shall notify the county clerk of the county
18-7 in which such license may have been recorded of the cancellation,
18-8 and such clerk, upon receipt of such notice from said board, shall
18-9 enter upon the optometry register of such county the fact that such
18-10 license has been cancelled for nonpayment of annual renewal fee and
18-11 shall notify the board in writing that such entry has been made.>
18-12 <(d)> Practicing optometry or therapeutic optometry without
18-13 an annual renewal certificate for the current year as provided
18-14 herein, shall have the same force and effect and be subject to all
18-15 penalties of practicing optometry or therapeutic optometry without
18-16 a license.
18-17 SECTION 16. Sections 4.01B, 4.02, and 4.03, Texas Optometry
18-18 Act (Articles 4552-4.01B, 4552-4.02, and 4552-4.03, Vernon's Texas
18-19 Civil Statutes), are amended to read as follows:
18-20 Sec. 4.01B. Educational requirement for renewal. (a) The
18-21 board shall develop a mandatory continuing education program. The
18-22 board by rule shall establish the minimum hours of continuing
18-23 education required for license renewal and shall develop a process
18-24 to evaluate and approve continuing education courses <Each
18-25 optometrist and therapeutic optometrist licensed in this state
18-26 shall take annual courses of study in subjects relating to the
18-27 utilization and application of scientific, technical, and clinical
19-1 advances in vision care, vision therapy, visual training, and other
19-2 subjects relating to the practice of optometry or therapeutic
19-3 optometry regularly taught by recognized optometric universities
19-4 and schools>.
19-5 (b) The board shall identify the key factors that lead to
19-6 the competent performance of professional duties. To evaluate the
19-7 overall effectiveness of the continuing education program, the
19-8 board shall develop a process to assess participation and
19-9 performance in the continuing education program <The length of
19-10 study required is 12 hours per calendar year>.
19-11 (c) The board may assess the continuing education needs of
19-12 licensees and may require licensees to attend continuing education
19-13 courses specified by the board <The continuing education
19-14 requirements established by this section shall be fulfilled by
19-15 attendance in continuing education courses sponsored by an
19-16 accredited college of optometry or in a course approved by the
19-17 board>.
19-18 (d) Attendance at a continuing education course <of study>
19-19 shall be certified to the board on a form provided by the board and
19-20 shall be submitted by each licensed optometrist and therapeutic
19-21 optometrist in conjunction with the <his> application for renewal
19-22 of the <his> license and submission of renewal fee.
19-23 (e) <(d)> The board may take action necessary in order to
19-24 qualify for funds or grants made available by the United States or
19-25 an agency of the United States for the establishment and
19-26 maintenance of programs of continuing education.
19-27 (f) <(e)> Licensees who have not complied with the
20-1 requirement of this section may not be issued a renewal license,
20-2 except for the following persons who are exempt:
20-3 (1) a person who holds a Texas license but who does
20-4 not practice optometry or therapeutic optometry in Texas;
20-5 (2) a licensee who served in the regular armed forces
20-6 of the United States during part of the 12 months immediately
20-7 preceding the annual license renewal date;
20-8 (3) a licensee who submits proof that the licensee
20-9 <he> suffered a serious or disabling illness or physical disability
20-10 which prevented the licensee <him> from complying with the
20-11 requirements of this section during the 12 months immediately
20-12 preceding the annual license renewal date; or
20-13 (4) a licensee first licensed within the 12 months
20-14 immediately preceding the annual renewal date.
20-15 Sec. 4.02. Renewal after discharge from military. Any
20-16 licensed optometrist or therapeutic optometrist whose renewal
20-17 certificate has expired while the licensee <he> has been engaged in
20-18 active duty with any United States military service or with the
20-19 United States Public Health Service, engaged in full-time federal
20-20 service, or engaged in training or education under the supervision
20-21 of the United States, preliminary to induction into the military
20-22 service, may have the <his> renewal certificate reinstated without
20-23 paying any lapsed renewal fee or registration fee, or without
20-24 passing an examination, if within one year after termination of
20-25 said service, training or education, other than by dishonorable
20-26 discharge, the licensee <he> furnishes the board with affidavit to
20-27 the effect that the licensee <he> has been so engaged and that the
21-1 <his> service, training or education has been so terminated.
21-2 Sec. 4.03. Lost or destroyed license. If any license issued
21-3 under this law shall be lost or destroyed, the holder of said
21-4 license shall make an affidavit of its loss or destruction, and
21-5 that the person making the affidavit <he> is the same person to
21-6 whom such license was issued, and such other information as may be
21-7 desired by the board, and shall, upon payment of a fee set in
21-8 accordance with Section 3.03 of this Act, <of $10> be granted a
21-9 license under this law.
21-10 SECTION 17. Section 4.04, Texas Optometry Act (Article
21-11 4552-4.04, Vernon's Texas Civil Statutes), is amended by amending
21-12 Subsections (a), (b), and (e) and adding Subsection (g) to read as
21-13 follows:
21-14 (a) By five or more votes, the board may refuse to issue a
21-15 license to an applicant, revoke or suspend a license, place on
21-16 probation a person whose license has been suspended <probate a
21-17 license suspension>, or reprimand a licensee if it finds that:
21-18 (1) the applicant or licensee is guilty of any fraud,
21-19 deceit, dishonesty, or misrepresentation in the practice of
21-20 optometry or therapeutic optometry or in <his> seeking admission to
21-21 such practice;
21-22 (2) the applicant or licensee is unfit or incompetent
21-23 by reason of negligence;
21-24 (3) the applicant or licensee has been convicted of a
21-25 felony or a misdemeanor which involves moral turpitude;
21-26 (4) the applicant or licensee is an habitual drunkard
21-27 or is addicted to the use of morphine, cocaine or other drugs
22-1 having similar effect or has become insane or has been adjudged by
22-2 a court of competent jurisdiction to be of unsound mind;
22-3 (5) the licensee has directly or indirectly employed,
22-4 hired, procured, or induced a person, not licensed to practice
22-5 optometry or therapeutic optometry in this state, to so practice;
22-6 (6) the licensee directly or indirectly aids or abets
22-7 in the practice of optometry or therapeutic optometry any person
22-8 not duly licensed to practice under this Act;
22-9 (7) the licensee lends, leases, rents or in any other
22-10 manner places the <his> license at the disposal or in the service
22-11 of any person not licensed to practice optometry or therapeutic
22-12 optometry in this state;
22-13 (8) the applicant or licensee has willfully or
22-14 repeatedly violated any of the provisions of this Act or a rule of
22-15 the board;
22-16 (9) the licensee has willfully or repeatedly
22-17 represented to the public or any member thereof that the licensee
22-18 <he> is authorized or competent to cure or treat diseases of the
22-19 eye beyond the authorization granted in this Act; or
22-20 (10) the licensee has the <his> right to practice
22-21 optometry or therapeutic optometry suspended or revoked by any
22-22 federal agency for a cause which in the opinion of the board
22-23 warrants such action.
22-24 (b) Any person may begin proceedings under this section by
22-25 filing charges with the board in writing and under oath. If
22-26 charges are filed against a person or if the board proposes to
22-27 refuse a person's application for a license or to suspend or revoke
23-1 a person's license, the person is entitled to a hearing. The State
23-2 Office of Administrative Hearings shall conduct the hearing <before
23-3 the board>. Except as provided by Subsection (c) of this section,
23-4 proceedings are governed by the Administrative Procedure and Texas
23-5 Register Act<, as amended> (Article 6252-13a, Vernon's Texas Civil
23-6 Statutes) and its subsequent amendments.
23-7 (e) Nothing in this Act shall be construed to prevent the
23-8 administrator or executor of the estate of a deceased optometrist
23-9 or therapeutic optometrist from employing a licensed optometrist or
23-10 therapeutic optometrist to carry on the practice of such deceased
23-11 during the administration of such estate nor to prevent a licensed
23-12 optometrist or therapeutic optometrist from working for such person
23-13 during the administration of the estate when the legal
23-14 representative thereof has been authorized by the county judge to
23-15 continue the operation of such practice. Operation of a practice
23-16 by an estate under this subsection must terminate before the first
23-17 anniversary of the death of the optometrist or therapeutic
23-18 optometrist.
23-19 (g) If a license suspension is probated, the board may
23-20 require the licensee to:
23-21 (1) report regularly to the board on matters that are
23-22 the basis of the probation;
23-23 (2) limit practice to the areas prescribed by the
23-24 board; or
23-25 (3) continue or review professional education until
23-26 the licensee attains a degree of skill satisfactory to the board in
23-27 those areas that are the basis of the probation.
24-1 SECTION 18. Article 4, Texas Optometry Act (Article
24-2 4552-4.01 et seq., Vernon's Texas Civil Statutes), is amended by
24-3 adding Sections 4.05, 4.06, 4.07, 4.08, and 4.09 to read as
24-4 follows:
24-5 Sec. 4.05. ADMINISTRATIVE PENALTIES. (a) If a person
24-6 licensed under this Act violates this Act or a rule or order
24-7 adopted by the board, the board may assess an administrative
24-8 penalty against the person as provided by this section.
24-9 (b) The penalty for each violation may be in an amount not
24-10 to exceed $2,500. Each day a violation continues or occurs may be
24-11 considered a separate violation for purposes of penalty
24-12 assessments.
24-13 (c) In determining the amount of the penalty, the executive
24-14 director of the board shall consider:
24-15 (1) the seriousness of the violation, including the
24-16 nature, circumstances, extent, and gravity of the prohibited acts,
24-17 and the hazard or potential hazard created to the health, safety,
24-18 or economic welfare of the public;
24-19 (2) the economic damage to property or the environment
24-20 caused by the violation;
24-21 (3) the history of previous violations;
24-22 (4) the amount necessary to deter future violations;
24-23 (5) efforts to correct the violation; and
24-24 (6) any other matter that justice may require.
24-25 (d) If, after investigation of a possible violation and the
24-26 facts surrounding that possible violation, the executive director
24-27 determines that a violation has occurred, the executive director
25-1 may issue a violation report stating the facts on which the
25-2 conclusion that a violation occurred is based, recommending that an
25-3 administrative penalty under this section be imposed on the person
25-4 charged, and recommending the amount of that proposed penalty. The
25-5 executive director shall base the recommended amount of the
25-6 proposed penalty on the seriousness of the violation determined by
25-7 consideration of the factors set forth in Subsection (c) of this
25-8 section.
25-9 (e) Not later than the 14th day after the date on which the
25-10 report is issued, the executive director shall give written notice
25-11 of the report to the person charged. The notice shall include a
25-12 brief summary of the charges, a statement of the amount of the
25-13 penalty recommended, and a statement of the right of the person
25-14 charged to a hearing on the occurrence of the violation or the
25-15 amount of the penalty, or both the occurrence of the violation and
25-16 the amount of the penalty.
25-17 (f) Not later than the 20th day after the date on which
25-18 notice is received, the person charged may accept the determination
25-19 of the executive director made under Subsection (e) of this
25-20 section, including the recommended penalty, or make a written
25-21 request for a hearing on the determination.
25-22 (g) If the person charged with the violation accepts the
25-23 determination of the executive director, the board shall issue an
25-24 order approving the determination and ordering the payment of the
25-25 recommended penalty.
25-26 (h) If the person charged requests a hearing or fails to
25-27 timely respond to the notice, the executive director shall set a
26-1 hearing and give notice of the hearing. The hearing shall be held
26-2 by the State Office of Administrative Hearings. The State Office
26-3 of Administrative Hearings shall make findings of fact and
26-4 conclusions of law and promptly issue to the board a proposal for
26-5 decision as to the occurrence of the violation, including a
26-6 recommendation as to the amount of the proposed penalty if a
26-7 penalty is warranted. Based on the findings of fact, conclusions
26-8 of law, and recommendations of the hearing examiner, the board by
26-9 order may find a violation has occurred and may assess a penalty or
26-10 may find that no violation has occurred. All proceedings under
26-11 this subsection are subject to the Administrative Procedure and
26-12 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
26-13 Statutes) and its subsequent amendments.
26-14 (i) The executive director shall give notice of the board's
26-15 order to the person charged. The notice shall include:
26-16 (1) the findings of fact and conclusions of law
26-17 separately stated;
26-18 (2) the amount of the penalty ordered, if any;
26-19 (3) a statement of the right of the person charged to
26-20 judicial review of the board's order, if any; and
26-21 (4) other information required by law.
26-22 (j) Not later than the 30th day after the date on which the
26-23 order becomes final as provided by Section 16(c), Administrative
26-24 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
26-25 Civil Statutes), and its subsequent amendments, the person charged
26-26 with the penalty shall:
26-27 (1) pay the penalty in full; or
27-1 (2) if the person files a petition for judicial review
27-2 contesting either the amount of the penalty or the fact of the
27-3 violation or contesting both the fact of the violation and the
27-4 amount of the penalty:
27-5 (A) forward the amount to the executive director
27-6 for placement in an escrow account; or
27-7 (B) in lieu of payment into escrow, post with
27-8 the executive director a supersedeas bond in a form approved by the
27-9 executive director for the amount of the penalty, the bond to be
27-10 effective until all judicial review of the order or decision is
27-11 final.
27-12 (k) If a person charged is financially unable to either
27-13 forward the amount of the penalty for placement in an escrow
27-14 account or post a supersedeas bond for the amount of the penalty,
27-15 the person may satisfy the requirements of Subsection (j)(2) of
27-16 this section by filing with the executive director an affidavit
27-17 sworn by the person charged, stating that the person is financially
27-18 unable to either forward the amount of the penalty or post a bond.
27-19 (l) Failure to forward the money, to post the bond, or to
27-20 file the affidavit with the executive director within the time
27-21 provided by Subsection (j) of this section results in a waiver of
27-22 all legal rights to judicial review. Also, if the person charged
27-23 fails to pay the penalty in full as provided under Subsection
27-24 (j)(1) of this section, or forward the money, post the bond, or
27-25 file the affidavit as provided by Subsection (j) or (k) of this
27-26 section, the executive director may forward the matter to the
27-27 attorney general for enforcement.
28-1 (m) Judicial review of the order or decision of the board
28-2 assessing the penalty shall be under the substantial evidence rule
28-3 and shall be instituted by filing a petition with a district court
28-4 in Travis County as provided by Section 19, Administrative
28-5 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
28-6 Civil Statutes), and its subsequent amendments.
28-7 (n) If the penalty is reduced or is not assessed by the
28-8 court, the executive director shall remit to the person charged the
28-9 appropriate amount plus accrued interest if the penalty has been
28-10 paid or shall execute a release of the bond if a supersedeas bond
28-11 has been posted. The accrued interest on amounts remitted by the
28-12 executive director under this subsection shall be paid at a rate
28-13 equal to the rate charged on loans to depository institutions by
28-14 the New York Federal Reserve Bank and shall be paid for the period
28-15 beginning on the date the penalty is paid to the executive director
28-16 under Subsection (j) of this section and ending on the date the
28-17 penalty is remitted.
28-18 (o) A penalty collected under this section for a violation
28-19 by a person licensed under this Act shall be deposited to the
28-20 credit of the general revenue fund.
28-21 Sec. 4.06. COMPLAINT PROCEDURE IN GENERAL. (a) The board
28-22 shall keep an information file about each complaint filed with the
28-23 board. The board's information file shall be kept current and
28-24 contain a record for each complaint of:
28-25 (1) all persons contacted in relation to the
28-26 complaint;
28-27 (2) a summary of findings made at each step of the
29-1 complaint process;
29-2 (3) an explanation of the legal basis and reason for a
29-3 complaint that is dismissed; and
29-4 (4) other relevant information.
29-5 (b) If a written complaint is filed with the board that the
29-6 board has authority to resolve, the board, at least as frequently
29-7 as quarterly and until final disposition of the complaint, shall
29-8 notify the parties to the complaint of the status of the complaint
29-9 unless the notice would jeopardize an undercover investigation.
29-10 (c) The board by rule shall adopt a form to standardize
29-11 information concerning complaints made to the board. The board by
29-12 rule shall prescribe information to be provided to a person when
29-13 the person files a complaint with the board.
29-14 (d) The board shall provide reasonable assistance to a
29-15 person who wishes to file a complaint with the board.
29-16 Sec. 4.07. COMPLAINT INVESTIGATION AND DISPOSITION. (a)
29-17 The board shall adopt rules concerning the investigation of a
29-18 complaint filed with the board. The rules adopted under this
29-19 subsection shall:
29-20 (1) distinguish between categories of complaints;
29-21 (2) ensure that complaints are not dismissed without
29-22 appropriate consideration;
29-23 (3) require that the board be advised of a complaint
29-24 that is dismissed and that a letter be sent to the person who filed
29-25 the complaint explaining the action taken on the dismissed
29-26 complaint;
29-27 (4) ensure that the person who filed the complaint has
30-1 an opportunity to explain the allegations made in the complaint;
30-2 and
30-3 (5) prescribe guidelines concerning the categories of
30-4 complaints that require the use of a private investigator and the
30-5 procedures for the board to obtain the services of a private
30-6 investigator.
30-7 (b) The board shall dispose of all complaints in a timely
30-8 manner. The board shall establish a schedule for conducting each
30-9 phase of a complaint that is under the control of the board not
30-10 later than the 30th day after the date the complaint is received by
30-11 the board. The schedule shall be kept in the information file for
30-12 the complaint and all parties shall be notified of the projected
30-13 time requirements for pursuing the complaint. A change in the
30-14 schedule must be noted in the complaint information file and all
30-15 parties to the complaint must be notified not later than the
30-16 seventh day after the date the change is made.
30-17 (c) The executive director of the board shall notify the
30-18 board of a complaint that extends beyond the time prescribed by the
30-19 board for resolving the complaint so that the board may take
30-20 necessary action on the complaint.
30-21 Sec. 4.08. MONITORING OF LICENSE HOLDER. The board by rule
30-22 shall develop a system for monitoring license holders' compliance
30-23 with the requirements of this Act. Rules adopted under this
30-24 section shall include procedures for monitoring a license holder
30-25 who is ordered by the board to perform certain acts to ascertain
30-26 that the license holder performs the required acts and to identify
30-27 and monitor license holders who represent a risk to the public.
31-1 Sec. 4.09. INFORMAL PROCEEDINGS. (a) The board by rule
31-2 shall adopt procedures governing:
31-3 (1) informal disposition of a contested case under
31-4 Section 13(e), Administrative Procedure and Texas Register Act
31-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
31-6 subsequent amendments; and
31-7 (2) informal proceedings held in compliance with
31-8 Section 18(c), Administrative Procedure and Texas Register Act
31-9 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
31-10 subsequent amendments.
31-11 (b) Rules adopted under this section must provide the
31-12 complainant and the licensee an opportunity to be heard and must
31-13 require the presence of a representative of the office of the
31-14 attorney general to advise the board or the board's employees.
31-15 SECTION 19. Sections 5.01 and 5.04, Texas Optometry Act
31-16 (Articles 4552-5.01 and 4552-5.04, Vernon's Texas Civil Statutes),
31-17 are amended to read as follows:
31-18 Sec. 5.01. Display of license. Every person practicing
31-19 optometry or therapeutic optometry in this state shall display the
31-20 person's <his> license or certificate in a conspicuous place in the
31-21 principal office where the person <he> practices optometry or
31-22 therapeutic optometry and whenever required, exhibit such license
31-23 or certificate to said board, or its authorized representative, and
31-24 whenever practicing said profession of optometry or therapeutic
31-25 optometry outside of, or away from said office or place of
31-26 business, the person <he> shall deliver to each person fitted with
31-27 glasses a bill, which shall contain the person's <his> signature,
32-1 post-office address, and number of the person's <his> license or
32-2 certificate, together with a specification of the lenses and
32-3 material furnished and the prices charged for the same
32-4 respectively.
32-5 Sec. 5.04. Practice without license; fraud; house-to-house.
32-6 It shall be unlawful for any person to:
32-7 (1) falsely impersonate any person duly licensed as an
32-8 optometrist or therapeutic optometrist under the provisions of this
32-9 Act or to falsely assume another name;
32-10 (2) buy, sell, or fraudulently obtain any optometry
32-11 diploma, optometry or therapeutic optometry license, record of
32-12 registration or aid or abet therein;
32-13 (3) practice, offer, or represent to others that the
32-14 person is <hold himself out as> authorized to practice optometry or
32-15 therapeutic optometry or use in connection with the person's <his>
32-16 name any designation tending to imply that the person <he> is a
32-17 practitioner of optometry or therapeutic optometry if not licensed
32-18 to practice under the provisions of this Act;
32-19 (4) practice optometry or therapeutic optometry during
32-20 the time the <his> license shall be suspended or revoked;
32-21 (5) fill an expired contact lens or spectacle
32-22 prescription; or
32-23 (6) practice optometry or therapeutic optometry from
32-24 house-to-house or on the streets or highways, notwithstanding any
32-25 laws for the licensing of peddlers. This shall not be construed as
32-26 prohibiting an optometrist, therapeutic optometrist, or physician
32-27 from attending, prescribing for and furnishing spectacles,
33-1 eyeglasses or ophthalmic lenses to a person who is confined to the
33-2 person's <his> abode by reason of illness or physical or mental
33-3 infirmity, or in response to an unsolicited request or call, for
33-4 such professional services.
33-5 SECTION 20. Section 5.09, Texas Optometry Act (Article
33-6 4552-5.09, Vernon's Texas Civil Statutes), is amended by amending
33-7 Subsection (c) and adding Subsection (h) to read as follows:
33-8 (c) Any advertisement of the price of prescription
33-9 spectacles or contact lenses is required to contain the following
33-10 information:
33-11 (1) a statement of whether or not the cost of an
33-12 examination, prescription services, and follow-up care by an eye
33-13 doctor is included in the price;
33-14 (2) if the advertised goods are to be available to the
33-15 public at the advertised price for less than 30 days after the date
33-16 of publication of the advertisement, the advertisement shall state
33-17 the time limitation on the offer;
33-18 (3) if the advertised goods are to be available to the
33-19 public in limited quantities and no rainchecks are given upon total
33-20 depletion of the inventory of the goods advertised, the
33-21 advertisement shall state the total quantity available to all
33-22 customers; <and>
33-23 (4) if the advertised goods are to be available to the
33-24 public at a limited number per customer, the advertisement shall
33-25 state the limit per customer; and
33-26 (5) with regard to contact lenses, the advertisement
33-27 shall state the number of lenses included for the price specified.
34-1 (h) A statement required to appear in an advertisement under
34-2 this section must be readily audible or readable by a person of
34-3 average comprehension or reading speed. In a print advertisement,
34-4 a statement required by this section must appear in at least
34-5 10-point type.
34-6 SECTION 21. Section 5.10, Texas Optometry Act (Article
34-7 4552-5.10, Vernon's Texas Civil Statutes), is amended to read as
34-8 follows:
34-9 Sec. 5.10. BOARD RULES RESTRICTING ADVERTISING. (a) The
34-10 board may not adopt <substantive> rules restricting competitive
34-11 bidding or advertising by a person regulated by the board except to
34-12 prohibit <adopt such rules as are necessary to prevent> false,
34-13 misleading, or deceptive practices.
34-14 (b) The board may not include in its rules to prohibit
34-15 false, misleading, or deceptive practices by a person regulated by
34-16 the board a rule that:
34-17 (1) restricts the use of any medium for advertising;
34-18 (2) restricts the person's personal appearance or use
34-19 of the person's voice in an advertisement;
34-20 (3) relates to the size or duration of an
34-21 advertisement by the person; or
34-22 (4) restricts the person's advertisement under a trade
34-23 name.
34-24 SECTION 22. Section 5.12(c), Texas Optometry Act (Article
34-25 4552-5.12, Vernon's Texas Civil Statutes), is amended to read as
34-26 follows:
34-27 (c) The willful or repeated failure or refusal of an
35-1 optometrist or therapeutic optometrist to comply with any of the
35-2 foregoing requirements shall be considered by the board to
35-3 constitute prima facie evidence that the optometrist or therapeutic
35-4 optometrist <he> is unfit or incompetent by reason of negligence
35-5 within the meaning of Section 4.04(a)(3) of this Act, and shall be
35-6 sufficient ground for the filing of charges to cancel, revoke or
35-7 suspend the <his> license. The charges shall state the specific
35-8 instances in which it is alleged that the rule was not complied
35-9 with. At a hearing pursuant to the filing of such charges, the
35-10 person charged shall have the burden of establishing that
35-11 compliance with the rule in each instance in which proof is adduced
35-12 that it was not complied with was not necessary to a proper
35-13 examination of the patient in that particular case.
35-14 SECTION 23. Sections 5.13(d), (e), (g), (i), and (j), Texas
35-15 Optometry Act (Article 4552-5.13, Vernon's Texas Civil Statutes),
35-16 are amended to read as follows:
35-17 (d) An optometrist or therapeutic optometrist may practice
35-18 optometry or therapeutic optometry under a trade name or an assumed
35-19 name or under the name of a professional corporation or a
35-20 professional association. Every optometrist or therapeutic
35-21 optometrist practicing in the State of Texas, including those
35-22 practicing under a trade or assumed name, shall be required to
35-23 display the actual name under which the optometrist or therapeutic
35-24 optometrist <he> is licensed by the board in a manner such that the
35-25 <his> name will be visible to the public prior to entry of the
35-26 optometrist's or therapeutic optometrist's office reception area.
35-27 (e) No optometrist or therapeutic optometrist shall use,
36-1 cause or allow to be used, the optometrist's or therapeutic
36-2 optometrist's <his> name or professional identification, as
36-3 authorized by Article 4590e, <as amended,> Revised <Civil> Statutes
36-4 <of Texas, 1925>, and its subsequent amendments, on or about the
36-5 door, window, wall, directory, or any sign or listing whatsoever,
36-6 of any office, location or place where optometry or therapeutic
36-7 optometry is practiced, unless said optometrist or therapeutic
36-8 optometrist is actually present and practicing optometry or
36-9 therapeutic optometry therein during the hours such office,
36-10 location or place of practice is open to the public for the
36-11 practice of optometry or therapeutic optometry.
36-12 (g) The requirement of Subsections (e) and (f) of this
36-13 section that an optometrist or therapeutic optometrist be "actually
36-14 present" in an office, location or place of practice holding the
36-15 optometrist's or therapeutic optometrist's <his> name out to the
36-16 public shall be deemed satisfied if the optometrist or therapeutic
36-17 optometrist is, as to such office, location or place of practice,
36-18 either:
36-19 (1) physically present therein more than half the
36-20 total number of hours such office, location, or place of practice
36-21 is open to the public for the practice of optometry or therapeutic
36-22 optometry during each calendar month for at least nine months in
36-23 each calendar year; or
36-24 (2) physically present in such office, location, or
36-25 place of practice for at least one-half of the time such person
36-26 conducts, directs, or supervises any practice of optometry or
36-27 therapeutic optometry.
37-1 (i) The requirement of Subsections (e) and (f) of this
37-2 section that an optometrist or therapeutic optometrist be
37-3 "practicing optometry or therapeutic optometry" at an office,
37-4 location, or place of practice holding the optometrist's or
37-5 therapeutic optometrist's <his> name out to the public shall be
37-6 deemed satisfied if the optometrist or therapeutic optometrist
37-7 regularly makes personal examination at such office, location, or
37-8 place of practice of the eyes of some of the persons prescribed for
37-9 therein or regularly supervises or directs in person at such
37-10 office, location or place of practice such examinations.
37-11 (j) The willful or repeated failure or refusal of an
37-12 optometrist or therapeutic optometrist to comply with any of the
37-13 provisions of this section shall be considered by the board to
37-14 constitute prima facie evidence that such optometrist or
37-15 therapeutic optometrist is guilty of violation of this Act, and
37-16 shall be sufficient ground for the filing of charges to cancel,
37-17 revoke or suspend a <his> license. The charges shall state the
37-18 specific instance or instances in which it is alleged that the rule
37-19 was not complied with. Alternatively, or in addition to the above,
37-20 it shall be the duty of the board to institute and prosecute an
37-21 action in a court of competent jurisdiction to restrain or enjoin
37-22 the violation of any of the preceding rules.
37-23 SECTION 24. Section 5.14(g), Texas Optometry Act (Article
37-24 4552-5.14, Vernon's Texas Civil Statutes), is amended to read as
37-25 follows:
37-26 (g) The optometrist or therapeutic optometrist shall not
37-27 permit the optometrist's or therapeutic optometrist's <his> name or
38-1 <his> practice to be directly or indirectly used in connection with
38-2 the mercantile establishment in any advertising, displays, signs,
38-3 or in any other manner.
38-4 SECTION 25. Sections 5.15(d) and (e), Texas Optometry Act
38-5 (Article 4552-5.15, Vernon's Texas Civil Statutes), are amended to
38-6 read as follows:
38-7 (d) No person, firm, or corporation engaged in the business
38-8 of a dispensing optician, other than a licensed optometrist,
38-9 therapeutic optometrist, or physician, shall have, own, or acquire
38-10 any interest in the practice, books, records, files, equipment, or
38-11 materials of a licensed optometrist or therapeutic optometrist, or
38-12 have, own, or acquire any interest in the premises or space
38-13 occupied by a licensed optometrist or therapeutic optometrist for
38-14 the practice of optometry or therapeutic optometry other than a
38-15 lease for a specific term without retention of the present right of
38-16 occupancy on the part of the dispensing optician. In the event an
38-17 optometrist, therapeutic optometrist, or physician who is also
38-18 engaged in the business of a dispensing optician (whether as an
38-19 individual, firm, or corporation) does own an interest in the
38-20 practice, books, records, files, equipment or materials of another
38-21 licensed optometrist or therapeutic optometrist, the optometrist,
38-22 therapeutic optometrist, or physician <he> shall maintain a
38-23 completely separate set of books, records, files, and accounts in
38-24 connection therewith.
38-25 (e) If, after examining a patient, an optometrist or
38-26 therapeutic optometrist believes that lenses are required to
38-27 correct or remedy any defect or abnormal condition of vision, the
39-1 optometrist or therapeutic optometrist shall so inform the patient
39-2 and shall provide the patient with a copy of the patient's
39-3 prescription. The optometrist or therapeutic optometrist shall
39-4 expressly indicate verbally or by other means that the patient has
39-5 two alternatives for the preparation of the lenses according to the
39-6 optometrist's or therapeutic optometrist's prescription: First,
39-7 that the optometrist or therapeutic optometrist will prepare or
39-8 have the lenses prepared according to the prescription; and second,
39-9 that the patient may have the prescription filled by any dispensing
39-10 optician but should return for an optometrical examination of the
39-11 lenses. This subsection does not require an optometrist or
39-12 therapeutic optometrist to provide a prescription to a patient
39-13 before the patient has paid the examination fee.
39-14 SECTION 26. Section 5.17, Texas Optometry Act (Article
39-15 4552-5.17, Vernon's Texas Civil Statutes), is amended to read as
39-16 follows:
39-17 Sec. 5.17. Exceptions. Nothing in this Act shall be
39-18 construed to apply to persons who sell ready-to-wear spectacles and
39-19 eyeglasses as merchandise at retail or officers or agents of the
39-20 United States or the State of Texas, in the discharge of their
39-21 official duties. Nothing in this Act shall prevent, limit, or
39-22 interfere with the right of a physician duly licensed by the Texas
39-23 State Board of Medical Examiners to treat or prescribe for <his>
39-24 patients or to direct or instruct others under the control,
39-25 supervision, or direction of such a physician to aid or minister to
39-26 the needs of <his> patients according to the physician's specific
39-27 directions, instructions or prescriptions; and where such
40-1 directions, instructions, or prescriptions are to be followed,
40-2 performed, or filled outside or away from the physician's office
40-3 such directions, instructions, or prescriptions shall be in
40-4 writing.
40-5 SECTION 27. The Texas Optometry Act (Article 4552-1.01 et
40-6 seq., Vernon's Texas Civil Statutes) is amended by amending Article
40-7 6 and adding Article 7 to read as follows:
40-8 ARTICLE 6. DISCRIMINATION PROHIBITED <MISCELLANEOUS PROVISIONS>
40-9 Sec. 6.01. DISCRIMINATION IN GRANTING OF MEDICAL STAFF
40-10 PRIVILEGES PROHIBITED. (a) A hospital or other health care
40-11 facility licensed, certified, or otherwise accredited by this state
40-12 may appoint an optometrist or therapeutic optometrist to its
40-13 medical staff and may grant active, associate, courtesy,
40-14 consulting, clinical, or other privileges to an optometrist or
40-15 therapeutic optometrist.
40-16 (b) If an optometrist or therapeutic optometrist applies to
40-17 a hospital or other health care facility for medical staff
40-18 privileges under Subsection (a) of this section, the hospital or
40-19 other facility shall act on the application and shall notify the
40-20 applicant in writing of the action. The hospital or facility may
40-21 not deny privileges to an optometrist or therapeutic optometrist
40-22 solely because the applicant is an optometrist or therapeutic
40-23 optometrist and not a physician.
40-24 Sec. 6.02. GOVERNMENTAL DISCRIMINATION PROHIBITED. A
40-25 program supported, in whole or in part, by this state, or a program
40-26 supported or provided by a state agency, or a county, municipality,
40-27 or other political subdivision, may not prohibit any person who is
41-1 entitled under the program to care within the scope of a license
41-2 issued under this Act from selecting an optometrist or therapeutic
41-3 optometrist to provide the care.
41-4 ARTICLE 7. MISCELLANEOUS PROVISIONS
41-5 Sec. 7.01. REFERENCE TO BOARD OF EXAMINERS <ABOLISHED>.
41-6 <The Texas State Board of Examiners in Optometry is abolished. All
41-7 property, equipment, records, files, and papers in the possession
41-8 of that board are transferred to the Texas Optometry Board created
41-9 by this Act.> All references in the statutes to the Texas State
41-10 Board of Examiners in Optometry shall be construed to mean the
41-11 Texas Optometry Board.
41-12 Sec. 7.02 <6.02>. Severability. If any provision, section
41-13 or clause of this Act or application thereof to any person or
41-14 circumstances is held invalid, such invalidity shall not affect
41-15 other provisions or applications thereof which can be given effect
41-16 without the invalid provision, section or clause, and to this end
41-17 the provisions of this Act are declared to be severable.
41-18 <Sec. 6.03. REPEALER. Chapter 10, Title 71, Revised Civil
41-19 Statutes of Texas, 1925, as amended, and Chapter 5, Title 12, Penal
41-20 Code of Texas, 1925, as amended, and all other laws and parts of
41-21 laws in conflict with this Act are hereby repealed.>
41-22 <Sec. 6.04. EFFECTIVE DATE. This Act takes effect September
41-23 1, 1969.>
41-24 <Sec. 6.05. EMERGENCY. The fact that the practice of
41-25 optometry has become one of the important health professions and it
41-26 is in the interest of the people of Texas that the practice of
41-27 optometry and that optometrists, in keeping with the traditions of
42-1 the other health professions, be properly regulated, and the
42-2 further fact that existing laws have proved ineffective in securing
42-3 the underlying purposes and objectives of this Act, create an
42-4 emergency of the greatest importance to the visual health and
42-5 welfare of the people of Texas and an imperative public necessity
42-6 requiring that the Constitutional Rule that bills be read on three
42-7 several days in each House be suspended, and such Rule is hereby
42-8 suspended; and this Act shall take effect and be in force from and
42-9 after its passage, and it is so enacted.>
42-10 SECTION 28. Subchapter E, Chapter 21, Insurance Code, is
42-11 amended by adding Article 21.52D to read as follows:
42-12 Art. 21.52D. USE OF OPTOMETRISTS BY MANAGED CARE PLAN. (a)
42-13 In this article, "managed care plan" means a health maintenance
42-14 organization, a preferred provider organization, or another
42-15 organization that provides health care benefits to participants and
42-16 that encourages participants to use health care practitioners
42-17 designated by the plan.
42-18 (b) A managed care plan that provides benefits for vision or
42-19 medical eye care services or procedures that are within the scope
42-20 of the license of an optometrist or therapeutic optometrist may
42-21 not:
42-22 (1) fail to include optometrists and participating
42-23 optometrists as participating practitioners in the plan in
42-24 sufficient numbers to meet demand;
42-25 (2) restrict or discourage a participant from
42-26 obtaining covered vision or medical eye care services or procedures
42-27 from a participating optometrist or therapeutic optometrist solely
43-1 because the practitioner is an optometrist or therapeutic
43-2 optometrist; or
43-3 (3) fail to include the name of a participating
43-4 optometrist or therapeutic optometrist on a list of participating
43-5 practitioners or fail to give equal prominence to the name.
43-6 (c) A managed care plan may not discriminate against an
43-7 optometrist or therapeutic optometrist solely because:
43-8 (1) the optometrist or therapeutic optometrist does
43-9 not have medical staff privileges at a hospital or at a particular
43-10 hospital; or
43-11 (2) the services or procedures provided by the
43-12 optometrist or therapeutic optometrist may be provided by another
43-13 type of practitioner.
43-14 (d) This article does not require a managed care plan to
43-15 provide vision or medical eye care services or procedures.
43-16 SECTION 29. Sections 5.02 and 5.03, Texas Optometry Act
43-17 (Articles 4552-5.02 and 4552-5.03, Vernon's Texas Civil Statutes),
43-18 are repealed.
43-19 SECTION 30. The changes in law made by this Act to the
43-20 requirements for membership on the Texas Optometry Board apply only
43-21 to an appointment made on or after the effective date of this Act
43-22 and do not affect the entitlement of a member serving on the board
43-23 on the effective date of this Act to continue to hold office for
43-24 the remainder of the term for which the person was appointed.
43-25 SECTION 31. On and after January 1, 1994, the State Office
43-26 of Administrative Hearings shall assume responsibility for hearings
43-27 held with respect to each contested case arising under the Texas
44-1 Optometry Act (Article 4552-1.01, et seq., Vernon's Texas Civil
44-2 Statutes). The Texas Optometry Board and the chief administrative
44-3 law judge of the State Office of Administrative Hearings may agree
44-4 to transfer contested cases pending before the board to the State
44-5 Office of Administrative Hearings before January 1, 1994.
44-6 SECTION 32. The Texas Optometry Board shall adopt rules
44-7 required by this Act not later than December 31, 1993.
44-8 SECTION 33. Section 21.52D, Insurance Code, as added by this
44-9 Act, applies only to a managed care plan that is delivered, issued
44-10 for delivery, or renewed on or after January 1, 1994. A managed
44-11 care plan that is delivered, issued for delivery, or renewed before
44-12 January 1, 1994, is governed by the law as it existed immediately
44-13 before the effective date of this Act, and that law is continued in
44-14 effect for that purpose.
44-15 SECTION 34. This Act takes effect September 1, 1993.
44-16 SECTION 35. The importance of this legislation and the
44-17 crowded condition of the calendars in both houses create an
44-18 emergency and an imperative public necessity that the
44-19 constitutional rule requiring bills to be read on three several
44-20 days in each house be suspended, and this rule is hereby suspended.