Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Berlanga H.B. No. 3057
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of [dispensing] opticians; providing a civil
1-3 and criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. SHORT TITLE. This Act may be cited as the
1-6 Opticians Registry Act.
1-7 SECTION 2. PURPOSE; CONSTRUCTION. (a) To safeguard public
1-8 health, safety, and welfare by providing a means by which the
1-9 public can identify providers of ophthalmic [dispensing] services
1-10 and products that meet minimum standards of competence, it is the
1-11 purpose of this Act to provide for a system of voluntary
1-12 registration and certification of [dispensing] opticians.
1-13 (b) This Act is not intended to authorize, and may not be
1-14 construed as authorizing, a dispensing optician to perform any act
1-15 on the optician's own authority that the optician is not otherwise
1-16 authorized to perform, including any act that constitutes the
1-17 practice of medicine or optometry.
1-18 SECTION 3. DEFINITIONS. In this Act:
1-19 (1) "Board" means the Texas Board of Health.
1-20 (2) "Contact lens dispensing" means the fabrication,
1-21 ordering, mechanical adjustment, dispensing, sale, and delivery to
1-22 the consumer of contact lenses prescribed by and dispensed in
1-23 accordance with a prescription from a licensed physician or
1-24 optometrist, together with appropriate instructions for the care
2-1 and handling of the lenses. The term does not include the taking
2-2 of any measurements of the eye or the cornea, or evaluating the
2-3 physical fit of the contact lenses, unless that action is directed
2-4 or approved by a licensed physician.
2-5 (3) "Contact lens fitting" means the taking of
2-6 measurements to determine the size, shape, specification, and type
2-7 of contact lenses needed for proper fit and function; the
2-8 evaluation of the physical fit of contact lenses, the adaptation or
2-9 adjustment of finished contact lenses to the wearer's eyes;
2-10 instructing wearers regarding the safe and satisfactory use of
2-11 contact lenses; and the sale, evaluation, adjustment, repair,
2-12 replacement, or duplication of contact lenses.
2-13 (4) [(3)] "Contact lens prescription" means a written
2-14 specification by a licensed physician or optometrist for
2-15 therapeutic, corrective, or cosmetic contact lenses, that states
2-16 the refractive power of the product and other information as
2-17 required by:
2-18 (A) the physician or the Texas State Board of
2-19 Medical Examiners; or
2-20 (B) the optometrist or the Texas Optometry
2-21 Board.
2-22 (5) "Directed or approved" means directions,
2-23 instructions, orders, or prescriptions from a licensed physician or
2-24 licensed optometrist to a person registered under this Act that are
2-25 of such scope and content and communicated in a form and manner
2-26 that, in the professional judgment of the physician or optometrist,
2-27 best serves the health, safety, and welfare of the consumer.
2-28 Nothing in this Act, nor any other law of this state shall be
2-29 construed as preventing such communication in written form or by
2-30 voice, facsimile, electronic mail, or other electronic device.
3-1 (6) "Registered Contact Lens Technician" means a
3-2 person registered under this Act who performs contact lens fitting,
3-3 as defined in this Act, as directed or approved by a licensed
3-4 physician or licensed optometrist. No person, other than a
3-5 licensed physician or licensed optometrist, shall engage in contact
3-6 lens fitting, as defined in this Act, unless registered under this
3-7 Act as a Registered Contact Lens Technician except as authorized
3-8 under Section 13 or Section 14 of this Act or Section 5.17, Texas
3-9 Optometry Act (Article 4552-5.17, Vernon's Texas Civil Statutes.
3-10 Contact lens fitting, as defined in this Act, does not include the
3-11 diagnosis or treatement of diseases of the eye.
3-12 [(4)] (7) "Council" means the Advisory Council of the
3-13 Opticians Registry.
3-14 [(5)] (8) "Department" means the Texas Department of
3-15 Health.
3-16 [(6)] (9) "Registered Dispensing [o]Optician" [or
3-17 "ophthalmic dispenser"] means a person registered under this Act
3-18 who performs [provides or offers to provide spectacle or contact
3-19 lens] dispensing opticianry [services or products to the public] ,
3-20 as defined in this Act, as directed or approved by a licensed
3-21 physician or licensed optometrist. No person, other than a
3-22 licensed physician or licensed optometrist, shall engage in
3-23 dispensing opticianry, as defined in this Act, unless registered
3-24 under this Act as a Registered Dispensing Optician or under the
3-25 direct supervision of a licensed physician, licensed optometrist,
3-26 or registered dispensing optician, except as authorized under
3-27 Section 13 or Section 14 of this Act or Section 5.17, Texas
3-28 Optometry Act (Article 4552-5.17, Vernon's Texas Civil Statutes.
3-29 Spectacle dispensing, as defined in this Act, does not include the
3-30 diagnosis or treatment of diseases of the eye.
4-1 (10) "Registered Ophthalmic Professional" means a
4-2 person registered under this Act who is ancillary personnel in
4-3 ophthalmology or optometry who assists a licensed physician or
4-4 licensed optometrist.
4-5 (11) "Refractometry" means the determination of the
4-6 refractive status of a person using lenses and instrumentation.
4-7 (12) "Registered Optician" means a person registered
4-8 under this Act who performs refractometry as directed or approved
4-9 by a licensed physician or licensed optometrist. Refractometry
4-10 results may be used by a person registered under this Act in
4-11 determining the refractive powers of an ophthalmic product when
4-12 directed or approved by a licensed physician or licensed
4-13 optometrist. No person, other than a licensed physician or
4-14 licensed optometrist, shall engage in refractometry, as defined in
4-15 this Act, unless registered under this Act as a Registered
4-16 Optician, except as authorized under Section 13 or Section 14 of
4-17 this Act or Section 5.17, Texas Optometry Act (Article 4552-5.17,
4-18 Vernon's Texas Civil Statutes). Nothing in this Act, nor any other
4-19 law of this state shall be construed as preventing transmission of
4-20 refractometry results in written form or by voice, facsimile,
4-21 electronic mail, or other electronic device. Refractometry, as
4-22 defined in this Act, does not include the diagnosis or treatment of
4-23 diseases of the eye.
4-24 [(7)] (13) "Dispensing Opticianry" ["Spectacle
4-25 dispensing"] means the design, verification, fitting, adjustment,
4-26 sale, and delivery to the consumer of [fabricated and finished]
4-27 spectacle lenses, frames or other ophthalmic devices, other than
4-28 contact lenses, [prescribed and dispensed in accordance with a
4-29 prescription from a licensed physician or optometrist]. The term
4-30 includes:
5-1 (A) prescription analysis and interpretation;
5-2 (B) the taking of measurements of the face,
5-3 including interpupillary and vertex distances, to determine the
5-4 size, shape, style, and other specifications of the spectacle
5-5 lenses or frames best suited to the wearer's needs;
5-6 (C) the preparation and delivery of work orders
5-7 to laboratory technicians engaged in grinding lenses and
5-8 fabricating spectacles;
5-9 (D) the verification of the quality of finished
5-10 spectacles lenses;
5-11 (E) the adjustment of spectacles lenses or
5-12 frames to the intended wearer's face; and
5-13 (F) the adjustment, repair, replacement,
5-14 reproduction, or duplication of previously prepared spectacle
5-15 lenses, frames, or other specially fabricated optical devices,
5-16 other than contact lenses.
5-17 (14) [(8)] "Spectacle Prescription" means a written
5-18 specification by a licensed physician or optometrist for
5-19 therapeutic or corrective lenses that states the refractive power
5-20 of the product and other information as required by the physician
5-21 or optometrist.
5-22 SECTION 4. PROHIBITED ACTS. (a) A person may not represent
5-23 himself to the public as a "Registered Dispensing Optician" [or
5-24 "Registered Spectacle Dispenser"] unless the person is
5-25 appropriately registered with the board [as a spectacle dispensing
5-26 optician] and complies with this Act.
5-27 (b) A person may not represent himself to the public as [a
5-28 "Registered Contact Lens Dispenser" or] "Registered Contact Lens
5-29 Technician" unless the person is appropriately registered with the
5-30 board [as a contact lens dispensing optician] and complies with
6-1 this Act.
6-2 (c) A person may not represent himself to the public as
6-3 "Registered Optician" unless the person is appropriately registered
6-4 with the board and complies with this Act.
6-5 (d) A person may not represent himself to the public as a
6-6 "Registered Ophthalmic Professional" unless the person is
6-7 appropriately registered with the board and complies with this Act.
6-8 (e) [(c)] A person registered under this Act may not
6-9 dispense contact lenses except from a contact lens prescription
6-10 that specifies that the prescription is for contact lenses or[.
6-11 Except] as authorized under Section 13 or Section 14 of this Act or
6-12 Section 5.17, Texas Optometry Act (Article 4552-5.17, Vernon's
6-13 Texas Civil Statutes)[,]. A [a] person registered under this Act
6-14 as a [contact lens dispenser] Registered Contact Lens Technician
6-15 may not [dispense contact lenses from the prescription of an
6-16 optometrist or physician in any manner that adjusts or alters the
6-17 specific, written instructions of the prescribing optometrist or
6-18 physician, and may not measure the patient's eyes or cornea or
6-19 evaluate the physical fit of contact lenses by any means unless
6-20 that action is directed or approved by a licensed physician.
6-21 Violation of this subsection constitutes the practice of medicine
6-22 or optometry without a license and is subject to the appropriate
6-23 penalties.] fit contact lenses, as defined in this Act, unless that
6-24 action is directed or approved by a licensed physician or licensed
6-25 optometrist. Contact lens fitting as defined in this Act does not
6-26 include the diagnosis or treatment of diseases of the eye.
6-27 (f) [(d)] A person appropriately [properly] registered under
6-28 this Act may represent himself to the public as a "Registered
6-29 Optician," "Registered Dispensing Optician," [a "Registered
6-30 Spectacle Dispenser,"] "Registered Contact Lens Technician," or
7-1 "Registered Ophthalmic Professional."[,"or a "Registered Contact
7-2 Lens Dispenser."] The person may not use abbreviations or other
7-3 letters to represent that the person is registered under this Act.
7-4 SECTION 5. DUTIES OF BOARD; ADVISORY COUNCIL. (a) The
7-5 board shall adopt procedural rules to implement the registration
7-6 procedures under this Act. The board also may adopt substantive and
7-7 procedural rules relating to:
7-8 (1) the minimum requirements for the registration of
7-9 opticians, dispensing opticians, contact lens technicians, and
7-10 ophthalmic professionals;
7-11 (2) the probation, suspension, denial, or revocation
7-12 of a registration;
7-13 (3) the setting of fees under this Act; and
7-14 (4) the adoption of forms required by this Act.
7-15 (5) the adoption of rules regarding circumstances
7-16 requiring immediate referral of a patient to a licensed physician
7-17 or licensed therapeutic optometrist.
7-18 (6) the preparation of informational materials to be
7-19 available to consumers from persons registered under this Act
7-20 regarding the advisability of routine examination of the eyes by a
7-21 licensed physician or therapeutic optometrist for the purpose of
7-22 early diagnosis of diseases relating to the eye or diseases
7-23 diagnosed by medical examination of the eye.
7-24 (b) The board may not adopt substantive rules relating to
7-25 this Act other than substantive rules described by Subsection (a)
7-26 of this section.
7-27 (c) The board shall appoint a nine-member advisory council
7-28 to be known as the Advisory Council of the Opticians Registry to
7-29 advise the board on matters relating to implementation of this Act.
7-30 The members shall be appointed from different geographical areas to
8-1 ensure representation of urban and rural interests.
8-2 (d) The board shall appoint members of the council as
8-3 follows:
8-4 (1) [Three] Four must be [opticians eligible for
8-5 registration under this Act, one of whom is eligible only as a
8-6 contact lens dispensing optician, one of whom is eligible only as a
8-7 spectacle dispensing optician, and one of whom is eligible for
8-8 registration in either category] registered under this Act;
8-9 (2) [two] one must be a physician[s] licensed and
8-10 practicing in this state whose practice is limited to
8-11 ophthalmology;
8-12 (3) [two] one must be an optometrist[s] licensed and
8-13 practicing in this state; and
8-14 (4) [two] three must be consumers who do not have, and
8-15 whose spouses do not have, a direct or indirect interest in any
8-16 health care related business or trade association.
8-17 (e) The council shall annually elect a chairman and
8-18 vice-chairman.
8-19 (f) A council member is not entitled to compensation for
8-20 service on the council, but is entitled to the per diem and
8-21 transportation allowance for state officials set in the General
8-22 Appropriations Act for each day that the member engages in the
8-23 business of the council.
8-24 (g) Members are appointed for staggered terms of six years,
8-25 with three terms beginning March 1 of each odd-numbered year.
8-26 Members shall serve until expiration of the term to which they have
8-27 been appointed or until their successors have qualified. A member
8-28 may not serve more than two consecutive terms.
8-29 SECTION 6. POWERS AND DUTIES OF DEPARTMENT. (a) The
8-30 department shall administer this Act.
9-1 (b) The department shall investigate persons engaging in
9-2 practices that violate this Act, and shall investigate all
9-3 complaints filed with the department against persons registered
9-4 under this Act.
9-5 (c) The department may employ administrative and clerical
9-6 staff as necessary to carry out this Act.
9-7 SECTION 7. EXAMINATIONS. (a) The department shall
9-8 administer a written qualifying [spectacle] dispensing optician
9-9 examination and a written qualifying contact lens technician
9-10 [dispensing] examination at least once a year to applicants for
9-11 registration. The qualifying examinations shall be professionally
9-12 constructed and validated and objectively administered and scored.
9-13 (b) If a person fails to pass a qualifying examination, the
9-14 person may reapply to take a subsequent examination. An applicant
9-15 who fails two successive examinations may not reapply until the
9-16 applicant completes any remedial work required by the department.
9-17 SECTION 8. CERTIFICATE OF REGISTRATION. (a) On application
9-18 and payment of a registration fee, the department shall issue a
9-19 certificate of registration to each applicant who:
9-20 (1) presents evidence satisfactory to the department
9-21 that the applicant has successfully completed the number of
9-22 classroom hours required by the board; and
9-23 (2) passes the appropriate examination required under
9-24 Section 7 of this Act.
9-25 (b) The board may not require more than 30 classroom hours
9-26 of training as a prerequisite to registration as a "Registered
9-27 Dispensing Optician," "Registered Contact Lens Technician," or
9-28 "Registered Ophthalmic Professional." The board shall require no
9-29 less than 100 classroom hours of training as a prerequisite to
9-30 registration as a "Registered Optician."
10-1 (c) A person may qualify and be registered as a dispensing
10-2 optician [contact lens dispenser], [as a] contact lens technician
10-3 [spectacle dispenser] or, ophthalmic professional. A person may
10-4 qualify and be registered under more than one category. [or as both
10-5 a dispensing contact lens dispenser and a spectacle dispenser.] In
10-6 addition to other qualifications set by the board, a person must
10-7 also be registered under this Act as a dispensing optician, contact
10-8 lens technician, or ophthalmic professional to qualify as a
10-9 "Registered Optician."
10-10 (d) A person issued a certificate by the department shall
10-11 display the certificate in an appropriate public manner as
10-12 specified by board rule.
10-13 (e) A certificate of registration is the property of the
10-14 department and must be surrendered on demand.
10-15 SECTION 9. RENEWAL OF REGISTRATION. (a) A certificate of
10-16 registration issued under this Act is valid for one year from the
10-17 date of issuance. To renew the registration, the registrant must
10-18 submit an application for renewal in the manner prescribed by the
10-19 board. The application must be accompanied by a renewal fee and
10-20 evidence that the applicant has successfully completed the
10-21 continuing education courses required by board rule. The board may
10-22 not require more than 10 classroom hours of continuing education
10-23 courses per year.
10-24 (b) The department shall adopt a system under which
10-25 registrations expire and are renewed on various dates of the year.
10-26 (c) A person registered under this Act who does not renew
10-27 the registration by the expiration date may renew the registration
10-28 not later than the 180th day after the expiration date by paying a
10-29 late registration fee as prescribed by the board.
10-30 (d) The registration of a person who fails to meet the
11-1 renewal requirements under this section is void until the person
11-2 submits a new application, pays the appropriate fees, and meets the
11-3 current requirements for registration.
11-4 SECTION 10. ENFORCEMENT; PENALTY. (a) The board, the
11-5 attorney general, or the district or county attorney for the county
11-6 in which an alleged violation of the Act occurs, on the verified
11-7 complaint of any person, shall enforce this Act and rules adopted
11-8 under this Act by appropriate administrative proceedings or
11-9 appropriate judicial proceedings in a court of competent
11-10 jurisdiction.
11-11 (b) A person commits an offense if the person violates this
11-12 Act. An offense under this Act is a Class B misdemeanor.
11-13 (c) The attorney general or an attorney representing the
11-14 state may sue in a court of competent jurisdiction to enjoin or
11-15 restrain a person from violating this Act or a rule adopted under
11-16 this Act.
11-17 (d) In addition to granting injunctive relief or any other
11-18 remedy provided by law, a court may impose a civil penalty for a
11-19 violation of this Act or a rule adopted under this Act.
11-20 SECTION 11. FEES; FUND. (a) The board by rule shall
11-21 prescribe fees in the amounts necessary to administer this Act, not
11-22 to exceed:
11-23 (1) $50 for an initial application for a registration;
11-24 (2) $20 for the issuance of a certificate of
11-25 registration;
11-26 (3) $30 for the annual renewal certificate of
11-27 registration; and
11-28 (4) $20 for issuance of a duplicate certificate of
11-29 registration or renewal certificate of registration.
11-30 (b) The board shall deposit all amounts received under this
12-1 Act in the state treasury to the credit of a special fund known as
12-2 the optician registry fund. Money in that fund is hereby
12-3 appropriated to the Department to be used by the Texas Department
12-4 of Health for the administration of this Act.
12-5 SECTION 12. DENIAL, SUSPENSION, REVOCATION, AND PROBATION.
12-6 (a) The department may refuse to issue a certificate of
12-7 registration to an applicant, suspend or revoke a certificate of
12-8 registration, or place on probation an individual who is registered
12-9 under this Act if the individual:
12-10 (1) obtains a certificate by means of fraud,
12-11 misrepresentation, or concealment of material facts;
12-12 (2) sells, barters, or offers to sell or barter a
12-13 certificate of registration;
12-14 (3) violates a lawful rule adopted by the board;
12-15 (4) violates Section 4 of this Act; or
12-16 (5) practices medicine or optometry without a license.
12-17 (b) A person whose application of registration is denied,
12-18 suspended, or revoked is entitled to a hearing before the
12-19 department if the person submits a written request for a hearing to
12-20 the department. A hearing is governed by department rules for a
12-21 contested hearing and by the Administrative Procedure and Texas
12-22 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
12-23 SECTION 13. APPLICATION OF THIS ACT. (a) This Act does not
12-24 prevent, limit, or restrict a person licensed in this state under
12-25 any other law from engaging in the profession or occupation for
12-26 which the person is licensed, and does not require such a person to
12-27 be registered under this Act.
12-28 (b) This Act does not prevent, limit, or restrict a person
12-29 licensed in this state from performing the duties of employment
12-30 required by the licensed person and does not require the employee
13-1 to be registered under this Act.
13-2 (c) This Act does not prevent, limit, or restrict an
13-3 individual, firm, or corporation from employing a person registered
13-4 under this Act or from engaging in spectacle dispensing or the
13-5 functions of contact lens dispensing through a person registered
13-6 under this Act who is employed at the location at which the
13-7 dispensing occurs.
13-8 (d) This Act does not prevent, limit, or restrict an
13-9 individual, firm, or corporation from employing a person as an
13-10 assistant, trainee, or apprentice to engage in spectacle
13-11 dispensing.
13-12 (e) This Act does not prevent, limit, or restrict an
13-13 individual, firm, or corporation from employing a person as an
13-14 assistant, trainee, or apprentice to engage in contact lens
13-15 dispensing or to provide instruction in the care and handling of
13-16 contact lenses.
13-17 (f) This Act does not prohibit the Texas State Board of
13-18 Medical Examiners, the Texas Optometry Board, the attorney general,
13-19 or any other person authorized by law, from bringing appropriate
13-20 actions to enforce the statutes of this state relating to the
13-21 practice of medicine without a license or the practice of optometry
13-22 without a license.
13-23 (g) This Act does not require either, that a person be
13-24 registered under this Act in order to engage in the sale or
13-25 dispensing of contact lenses, or that a person who works in a
13-26 wholesale laboratory that fabricates contact lenses be registered
13-27 as a contact lens dispenser. For purposes of this subsection,
13-28 "wholesale laboratory" means a contact lens manufacturing facility
13-29 that does not sell its finished product directly to the public.
13-30 SECTION 14. PHYSICIAN'S PRESCRIPTIONS; DELEGATION.
14-1 (a) Neither this Act nor any other law of this state relating to
14-2 persons registered under this Act [dispensing opticians] shall
14-3 prevent[s], limit[s], or restrict[s] a licensed physician from
14-4 treating or prescribing for [the physician's] patients or directing
14-5 [or instructing others under the physician's control or
14-6 supervision] persons registered under this Act to [from] aid[ing]
14-7 or minister[ing] to the needs of those patients according to the
14-8 physician's [specific] directions, orders, instructions, or
14-9 prescriptions.
14-10 (b) If a physician's directions, instructions, orders, or
14-11 prescriptions are directed to [be followed, performed, carried out,
14-12 or filled by] a person registered under this Act that is
14-13 [dispensing optician] separate from and independent of a
14-14 physician's office, the directions, instructions, orders, or
14-15 prescriptions must[:]
14-16 [(1) be written;]
14-17 [(2)] be of a scope and content and be communicated
14-18 [to the dispensing optician] in a form and manner that, in the
14-19 professional judgment of the physician, best serves the health,
14-20 safety, and welfare of the physician's patients. [; and]
14-21 [(3) be in a form and detail consistent with the
14-22 particular dispensing optician's skill and knowledge.]
14-23 [(c) A person registered under this Act as a contact lens
14-24 dispenser may take measurements of the eye or cornea and may
14-25 evaluate the physical fit of lenses for a particular patient of a
14-26 licensed physician if the physician has delegated those
14-27 responsibilities with regard to that specific patient in writing to
14-28 the dispensing optician in accordance with this section and Section
14-29 5.17, Texas Optometry Act (Article 4552-5.17, Vernon's Texas Civil
14-30 Statutes).]
15-1 [SECTION 15. INITIAL APPOINTMENTS. The term of an initial
15-2 Appointee to the council shall be determined by lot as follows:
15-3 three members are appointed for terms expiring March 1, 1993; three
15-4 members are appointed for terms expiring March 1, 1995; and three
15-5 members are appointed for terms expiring March 1, 1997.]
15-6 [SECTION 16. EFFECTIVE DATE; TRANSITION. (a) Except as
15-7 provided by Subsection (b) of this section, this Act takes effect
15-8 September 1, 1991.]
15-9 [(b) Sections 4 and 10 of this Act take effect September 1,
15-10 1992, and a person subject to regulation under this Act is not
15-11 required to be registered until September 1, 1992.]
15-12 [(c) The department shall prorate initial registration fees
15-13 so that a registered person pays only for the part of the year that
15-14 occurs up to the expiration date of the registration.]
15-15 [(d) A person who has been actively engaged in spectacle
15-16 dispensing or contact lens dispensing for a period of three years
15-17 preceding the effective date of this Act is entitled to a
15-18 certificate of registration without examination if the person:]
15-19 [(1) applies to the department for registration not
15-20 later than August 31, 1992; and]
15-21 [(2) pays the registration fee set by the department.]
15-22 SECTION 15 [17]. EMERGENCY. The importance of this
15-23 legislation and the crowded condition of the calendars in both
15-24 houses create an emergency and an imperative public necessity that
15-25 the constitutional rule requiring bills to be read on three several
15-26 days in each house be suspended, and this rule is hereby suspended.