Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By: Wohlgemuth H.B. No. 3261
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of optometry.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (i), Section 2.02, Texas Optometry Act
1-5 (Article 4552-2.02, Vernon's Texas Civil Statutes), is amended to
1-6 read as follows:
1-7 (i) A person may not serve more than two complete terms on
1-8 the board. Time served on the board prior to September 1, 1996
1-9 [1981], shall not count toward this limitation.
1-10 SECTION 2. Subdivision (2), Subsection (k), Section 2.02,
1-11 Texas Optometry Act (Article 4552-2.02, Vernon's Texas Civil
1-12 Statutes), is amended to read as follows:
1-13 (2) A training program established under this section
1-14 shall provide information to a participant regarding:
1-15 (A) the enabling legislation that created the
1-16 board to which the member is appointed;
1-17 (B) the programs operated by the agency;
1-18 (C) the role and functions of the agency;
1-19 (D) the rules of the agency with an emphasis on
1-20 the rules that relate to disciplinary and investigatory authority;
1-21 (E) the current budget for the agency;
1-22 (F) the results of the most recent formal audit
1-23 of the agency;
1-24 (G) the requirements of the:
2-1 (i) open meetings law, Chapter 551 [271],
2-2 Government Code [Acts of the 60th Legislature, Regular Session,
2-3 1967 (Article 6252-17, Vernon's Texas Civil Statutes), and its
2-4 subsequent amendments];
2-5 (ii) open records law, Chapter 552 [424],
2-6 Government Code [Acts of the 63rd Legislature, Regular Session,
2-7 1973 (Article 6252-17a, Vernon's Texas Civil Statutes), and its
2-8 subsequent amendments]; and
2-9 (iii) administrative procedure law,
2-10 Chapter 2001, Government Code [Administrative Procedure and Texas
2-11 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
2-12 its subsequent amendments];
2-13 (H) the requirements of the conflict of interest
2-14 laws and other laws relating to public officials; and
2-15 (I) any applicable ethics policies adopted by
2-16 that state agency or the Texas Ethics Commission.
2-17 SECTION 3. Subsection (d), Section 2.05, Texas Optometry Act
2-18 (Article 4552-2.05, Vernon's Texas Civil Statutes), is amended to
2-19 read as follows:
2-20 (d) The board is subject to [the open meetings law,] Chapter
2-21 551 [271], Government Code [Acts of the 60th Legislature, Regular
2-22 Session, 1967, as amended (Article 6252-17, Vernon's Texas Civil
2-23 Statutes)], and Chapter 2001, Government Code [the Administrative
2-24 Procedure and Texas Register Act, as amended (Article 6252-13a,
2-25 Vernon's Texas Civil Statutes)].
2-26 SECTION 4. Subsection (b), Section 2.14, Texas Optometry Act
2-27 (Article 4552-2.14, Vernon's Texas Civil Statutes), is amended to
2-28 read as follows:
2-29 (b) If the appropriate standing committees of both houses of
2-30 the legislature acting under Section 2001.032 [5(g)], Government
3-1 Code [Administrative Procedure and Texas Register Act, as amended
3-2 (Article 6252-13a, Vernon's Texas Civil Statutes)], transmit to the
3-3 board statements opposing adoption of a rule under that section
3-4 [subsection], the rule may not take effect or, if the rule has
3-5 already taken effect, the rule is repealed effective on the date
3-6 the board receives the committee's statements.
3-7 SECTION 5. Subsection (b), Section 3.03B, Texas Optometry
3-8 Act (Article 4552-3.03B, Vernon's Texas Civil Statutes), is amended
3-9 to read as follows:
3-10 (b) Each [Of each] fee increase collected[, $50 shall be
3-11 deposited to the credit of the foundation school fund and $150]
3-12 shall be deposited to the credit of the general revenue fund. This
3-13 subsection applies to the disposition of each fee increase
3-14 regardless of any other provision of law providing for a different
3-15 disposition of funds.
3-16 SECTION 6. Subsection (b), Section 4.04, Texas Optometry Act
3-17 (Article 4552-4.04, Vernon's Texas Civil Statutes), is amended to
3-18 read as follows:
3-19 (b) Any person may begin proceedings under this section by
3-20 filing charges with the board in writing and under oath. If
3-21 charges are filed against a person or if the board proposes to
3-22 refuse a person's application for a license or to suspend or revoke
3-23 a person's license, the person is entitled to a hearing. The State
3-24 Office of Administrative Hearings shall conduct the hearing.
3-25 Except as provided by Subsection (c) of this section, proceedings
3-26 are governed by Chapter 2001, Government Code [the Administrative
3-27 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
3-28 Civil Statutes) and its subsequent amendments].
3-29 SECTION 7. Subsections (i), (j), (n), and (r), Section 4.05,
3-30 Texas Optometry Act (Article 4552-4.05, Vernon's Texas Civil
4-1 Statutes), are amended to read as follows:
4-2 (i) The notice of the board's order given to the person
4-3 under Chapter 2001, Government Code, [the Administrative Procedure
4-4 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
4-5 Statutes) and its subsequent amendments] must include a statement
4-6 of the right of the person to judicial review of the order.
4-7 (j) Within 30 days after the date the board's order is final
4-8 as provided by Subchapter F, Chapter 2001, Government Code [Section
4-9 16(c), Administrative Procedure and Texas Register Act (Article
4-10 6252-13a, Vernon's Texas Civil Statutes), and its subsequent
4-11 amendments], the person shall:
4-12 (1) pay the amount of the penalty;
4-13 (2) pay the amount of the penalty and file a petition
4-14 for judicial review contesting the occurrence of the violation, the
4-15 amount of the penalty, or both the occurrence of the violation and
4-16 the amount of the penalty; or
4-17 (3) without paying the amount of the penalty, file a
4-18 petition for judicial review contesting the occurrence of the
4-19 violation, the amount of the penalty, or both the occurrence of the
4-20 violation and the amount of the penalty.
4-21 (n) Judicial review of the order of the board:
4-22 (1) is instituted by filing a petition as provided by
4-23 Subchapter G, Chapter 2001, Government Code [Section 19,
4-24 Administrative Procedure and Texas Register Act (Article 6252-13a,
4-25 Vernon's Texas Civil Statutes), and its subsequent amendments]; and
4-26 (2) is under the substantial evidence rule.
4-27 (r) All proceedings under this section are subject to
4-28 Chapter 2001, Government Code [the Administrative Procedure and
4-29 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
4-30 Statutes) and its subsequent amendments].
5-1 SECTION 8. Section 4.06, Texas Optometry Act (Article
5-2 4552-4.06, Vernon's Texas Civil Statutes), is amended by adding
5-3 Subsection (e) to read as follows:
5-4 (e) All complaints and investigation files are confidential
5-5 and shall not be disclosed, except as provided for by this section.
5-6 On a determination by the investigation-enforcement committee that
5-7 sufficient cause exists to warrant holding an informal conference
5-8 or offering a licensee the opportunity to show compliance with all
5-9 requirements for the retention of a license as provided by Section
5-10 2001.054(c), Government Code, all information regarding the
5-11 complaint and its disposition shall be disclosed upon request under
5-12 Chapter 552, Government Code. Nothing in this subsection shall
5-13 prevent the board from furnishing any information regarding a
5-14 licensee to criminal law enforcement authorities of this state,
5-15 another state, or the United States.
5-16 SECTION 9. Subsection (a), Section 4.09, Texas Optometry Act
5-17 (Article 4552-4.09, Vernon's Texas Civil Statutes), is amended to
5-18 read as follows:
5-19 (a) The board by rule shall adopt procedures governing:
5-20 (1) informal disposition of a contested case under
5-21 Section 2001.056 [13(e)], Government Code [Administrative Procedure
5-22 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
5-23 Statutes), and its subsequent amendments]; and
5-24 (2) informal proceedings held in compliance with
5-25 Section 2001.054 [18(c)], Government Code [Administrative Procedure
5-26 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
5-27 Statutes), and its subsequent amendments].
5-28 SECTION 10. Section 5.06, Texas Optometry Act (Article
5-29 4552-5.06, Vernon's Texas Civil Statutes), is amended to read as
5-30 follows:
6-1 Sec. 5.06. SPECTACLES AS PREMIUMS. It shall be unlawful for
6-2 any person in this state to give, or cause to be given, deliver, or
6-3 cause to be delivered, in any manner whatsoever, any contact
6-4 lenses, spectacles, or eyeglasses, separate or together, as a prize
6-5 or premium, or as an inducement to sell [any book, paper, magazine
6-6 or any work of literature or art, or] any item of merchandise
6-7 whatsoever.
6-8 SECTION 11. Subsection (b), Section 5.11, Texas Optometry
6-9 Act (Article 4552-5.11, Vernon's Texas Civil Statutes), is amended
6-10 to read as follows:
6-11 (b) For purposes of this section "controlling or attempting
6-12 to control the professional judgment, the manner of practice, or
6-13 the practice of an optometrist or therapeutic optometrist" shall
6-14 include but not be limited to:
6-15 (1) setting or attempting to influence the
6-16 professional fees of an optometrist or therapeutic optometrist;
6-17 (2) setting or attempting to influence the office
6-18 hours of an optometrist or therapeutic optometrist;
6-19 (3) restricting or attempting to restrict an
6-20 optometrist's or therapeutic optometrist's freedom to see patients
6-21 on an appointment basis;
6-22 (4) terminating or threatening to terminate any lease,
6-23 agreement, or other relationship in an effort to control the
6-24 professional judgment, manner of practice, or practice of an
6-25 optometrist or therapeutic optometrist;
6-26 (5) providing, hiring, or sharing employees or
6-27 business services or similar items to or with an optometrist or
6-28 therapeutic optometrist; [or]
6-29 (6) making or guaranteeing a loan to an optometrist or
6-30 therapeutic optometrist in excess of the value of the collateral
7-1 securing the loan;
7-2 (7) setting or attempting to set the minimum number of
7-3 patients an optometrist or therapeutic optometrist is to see or the
7-4 number of types of diagnostic procedures an optometrist or
7-5 therapeutic optometrist is to perform; or
7-6 (8) requiring or attempting to require that a person
7-7 other than the optometrist or therapeutic optometrist have computer
7-8 access or other automatic access to patient records, names, or
7-9 information.
7-10 SECTION 12. Subsections (a) and (c), Section 5.12, Texas
7-11 Optometry Act (Article 4552-5.12, Vernon's Texas Civil Statutes),
7-12 are amended to read as follows:
7-13 (a) In [order to ensure an adequate examination of a patient
7-14 for whom an optometrist or therapeutic optometrist signs or causes
7-15 to be signed a prescription for an ophthalmic lens, in] the initial
7-16 examination of a [the] patient, if the optometrist or therapeutic
7-17 optometrist determines that the patient requires a prescription for
7-18 an ophthalmic lens, the optometrist or therapeutic optometrist
7-19 shall make and record, if possible, the following findings of the
7-20 condition of the patient:
7-21 (1) Case History (ocular, physical, occupational, and
7-22 other pertinent information).
7-23 (2) Visual acuity.
7-24 (3) Biomicroscopy examination (lids, cornea, sclera,
7-25 etc.).
7-26 (4) Internal ophthalmoscopic examination (media,
7-27 fundus, etc.).
7-28 (5) Static retinoscopy, O.D., O.S., or autorefractor.
7-29 (6) Subjective findings, far point and near point.
7-30 (7) Assessment of binocular function.
8-1 (8) Amplitude or range of accommodation.
8-2 (9) Tonometry.
8-3 (10) Angle of vision, to right and to left.
8-4 (c) The willful or repeated failure or refusal of an
8-5 optometrist or therapeutic optometrist to comply with any of the
8-6 foregoing requirements shall be considered by the board to
8-7 constitute prima facie evidence that the optometrist or therapeutic
8-8 optometrist is unfit or incompetent by reason of negligence within
8-9 the meaning of Section 4.04(a)(2) [4.04(a)(3)] of this Act[,] and
8-10 shall be sufficient ground for the filing of charges to cancel,
8-11 revoke, or suspend the license. The charges shall state the
8-12 specific instances in which it is alleged that this section [the
8-13 rule] was not complied with. At a hearing pursuant to the filing
8-14 of such charges, the person charged shall have the burden of
8-15 establishing that compliance with this section [the rule] in each
8-16 instance in which proof is adduced that it was not complied with
8-17 was not necessary to a proper examination of the patient in that
8-18 particular case.
8-19 SECTION 13. Subsections (b), (c), and (j), Section 5.13,
8-20 Texas Optometry Act (Article 4552-5.13, Vernon's Texas Civil
8-21 Statutes), are amended to read as follows:
8-22 (b) No optometrist or therapeutic optometrist shall divide,
8-23 share, split, or allocate, either directly or indirectly, any fee
8-24 for optometric or therapeutic optometric services or materials with
8-25 any lay person, firm, or corporation, provided that this section
8-26 [rule] shall not be interpreted to prevent an optometrist or
8-27 therapeutic optometrist from paying an employee in the regular
8-28 course of employment, and provided further, that it shall not be
8-29 construed as a violation of this Act for any optometrist or
8-30 therapeutic optometrist to lease space from an establishment, or to
9-1 pay for franchise fees or other services, on a percentage or gross
9-2 receipts basis, or to sell, transfer, or assign accounts
9-3 receivable. The provisions of this section authorizing payment
9-4 based upon a percentage of gross receipts shall not be construed as
9-5 authorizing any activity which is prohibited under Section 5.11 of
9-6 this Act.
9-7 (c) No optometrist or therapeutic optometrist shall divide,
9-8 share, split, or allocate, either directly or indirectly, any fee
9-9 for optometric or therapeutic optometric services or materials with
9-10 another optometrist, therapeutic optometrist, or with a physician
9-11 except upon a division of service or responsibility provided that
9-12 this section [rule] shall not be interpreted to prevent
9-13 partnerships for the practice of optometry or therapeutic
9-14 optometry. This Act does not prohibit an optometrist or
9-15 therapeutic optometrist from being employed on a salary, with or
9-16 without bonus arrangements, by a licensed optometrist, therapeutic
9-17 optometrist, or physician, regardless of the amount of supervision
9-18 exerted by the employing optometrist, therapeutic optometrist, or
9-19 physician over the office in which the employed optometrist or
9-20 therapeutic optometrist works, provided such bonus arrangements, if
9-21 any, shall not be based in whole or in part on the business or
9-22 income of any optical company.
9-23 (j) The willful or repeated failure or refusal of an
9-24 optometrist or therapeutic optometrist to comply with any of the
9-25 provisions of this section shall be considered by the board to
9-26 constitute prima facie evidence that such optometrist or
9-27 therapeutic optometrist is guilty of violation of this Act[,] and
9-28 shall be sufficient ground for the filing of charges to cancel,
9-29 revoke, or suspend a license. The charges shall state the specific
9-30 instance or instances in which it is alleged that this section [the
10-1 rule] was not complied with. Alternatively, or in addition to the
10-2 above, it shall be the duty of the board to institute and prosecute
10-3 an action in a court of competent jurisdiction to restrain or
10-4 enjoin the violation of any of the provisions of this section
10-5 [preceding rules].
10-6 SECTION 14. Subsection (a), Section 5.14, Texas Optometry
10-7 Act (Article 4552-5.14, Vernon's Texas Civil Statutes), is amended
10-8 to read as follows:
10-9 (a) In order to safeguard the visual welfare of the public
10-10 and the doctor-patient relationship, fix professional
10-11 responsibility, establish standards of professional surroundings,
10-12 more nearly secure to the patient the optometrist's or therapeutic
10-13 optometrist's undivided loyalty and service, and carry out the
10-14 prohibitions of this Act against placing an optometric or
10-15 therapeutic optometric license in the service or at the disposal of
10-16 unlicensed persons, the provisions of this section are applicable
10-17 to any optometrist or therapeutic optometrist who leases space from
10-18 or [and] practices optometry or therapeutic optometry on the
10-19 premises of a mercantile establishment.
10-20 SECTION 15. This Act takes effect September 1, 1997.
10-21 SECTION 16. The importance of this legislation and the
10-22 crowded condition of the calendars in both houses create an
10-23 emergency and an imperative public necessity that the
10-24 constitutional rule requiring bills to be read on three several
10-25 days in each house be suspended, and this rule is hereby suspended.