By:  Madla                                   S.B. No. 1242

         97S0740/1                           

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the regulation of the practice of optometry.

 1-2           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-3           SECTION 1.  Subsection (i), Section 2.02, Texas Optometry Act

 1-4     (Article 4552-2.02, Vernon's Texas Civil Statutes), is amended to

 1-5     read as follows:

 1-6           (i)  A person may not serve more than two complete terms on

 1-7     the board.  Time served on the board prior to September 1, 1996

 1-8     [1981], shall not count toward this limitation.

 1-9           SECTION 2.  Subdivision (2), Subsection (k), Section 2.02,

1-10     Texas Optometry Act (Article 4552-2.02, Vernon's Texas Civil

1-11     Statutes), is amended to read as follows:

1-12                 (2)  A training program established under this section

1-13     shall provide information to a participant regarding:

1-14                       (A)  the enabling legislation that created the

1-15     board to which the member is appointed;

1-16                       (B)  the programs operated by the agency;

1-17                       (C)  the role and functions of the agency;

1-18                       (D)  the rules of the agency with an emphasis on

1-19     the rules that relate to disciplinary and investigatory authority;

1-20                       (E)  the current budget for the agency;

1-21                       (F)  the results of the most recent formal audit

1-22     of the agency;

1-23                       (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)].

 3-1           SECTION 4.  Subsection (b), Section 2.14, Texas Optometry Act

 3-2     (Article 4552-2.14, Vernon's Texas Civil Statutes), is amended to

 3-3     read as follows:

 3-4           (b)  If the appropriate standing committees of both houses of

 3-5     the legislature acting under Section 2001.032 [5(g)], Government

 3-6     Code [Administrative Procedure and Texas Register Act, as amended

 3-7     (Article 6252-13a, Vernon's Texas Civil Statutes)], transmit to the

 3-8     board statements opposing adoption of a rule under that section

 3-9     [subsection], the rule may not take effect or, if the rule has

3-10     already taken effect, the rule is repealed effective on the date

3-11     the board receives the committee's statements.

3-12           SECTION 5.  Subsection (b), Section 3.03B, Texas Optometry

3-13     Act (Article 4552-3.03B, Vernon's Texas Civil Statutes), is amended

3-14     to read as follows:

3-15           (b)  Each [Of each] fee increase collected[, $50 shall be

3-16     deposited to the credit of the foundation school fund and $150]

3-17     shall be deposited to the credit of the general revenue fund. This

3-18     subsection applies to the disposition of each fee increase

3-19     regardless of any other provision of law providing for a different

3-20     disposition of funds.

3-21           SECTION 6.  Subsection (b), Section 4.04, Texas Optometry Act

3-22     (Article 4552-4.04, Vernon's Texas Civil Statutes), is amended to

3-23     read as follows:

3-24           (b)  Any person may begin proceedings under this section by

3-25     filing charges with the board in writing and under oath.  If

 4-1     charges are filed against a person or if the board proposes to

 4-2     refuse a person's application for a license or to suspend or revoke

 4-3     a person's license, the person is entitled to a hearing.  The State

 4-4     Office of Administrative Hearings shall conduct the hearing.

 4-5     Except as provided by Subsection (c) of this section, proceedings

 4-6     are governed by Chapter 2001, Government Code [the Administrative

 4-7     Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas

 4-8     Civil Statutes) and its subsequent amendments].

 4-9           SECTION 7.  Subsections (i), (j), (n), and (r), Section 4.05,

4-10     Texas Optometry Act (Article 4552-4.05, Vernon's Texas Civil

4-11     Statutes), are amended to read as follows:

4-12           (i)  The notice of the board's order given to the person

4-13     under Chapter 2001, Government Code, [the Administrative Procedure

4-14     and Texas Register Act (Article 6252-13a, Vernon's Texas Civil

4-15     Statutes) and its subsequent amendments] must include a statement

4-16     of the right of the person to judicial review of the order.

4-17           (j)  Within 30 days after the date the board's order is final

4-18     as provided by Subchapter F, Chapter 2001, Government Code [Section

4-19     16(c), Administrative Procedure and Texas Register Act (Article

4-20     6252-13a, Vernon's Texas Civil Statutes), and its subsequent

4-21     amendments], the person shall:

4-22                 (1)  pay the amount of the penalty;

4-23                 (2)  pay the amount of the penalty and file a petition

4-24     for judicial review contesting the occurrence of the violation, the

4-25     amount of the penalty, or both the occurrence of the violation and

 5-1     the amount of the penalty; or

 5-2                 (3)  without paying the amount of the penalty, file a

 5-3     petition for judicial review contesting the occurrence of the

 5-4     violation, the amount of the penalty, or both the occurrence of the

 5-5     violation and the amount of the penalty.

 5-6           (n)  Judicial review of the order of the board:

 5-7                 (1)  is instituted by filing a petition as provided by

 5-8     Subchapter G, Chapter 2001, Government Code [Section 19,

 5-9     Administrative Procedure and Texas Register Act (Article 6252-13a,

5-10     Vernon's Texas Civil Statutes), and its subsequent amendments]; and

5-11                 (2)  is under the substantial evidence rule.

5-12           (r)  All proceedings under this section are subject to

5-13     Chapter 2001, Government Code [the Administrative Procedure and

5-14     Texas Register Act (Article 6252-13a, Vernon's Texas Civil

5-15     Statutes) and its subsequent amendments].

5-16           SECTION 8.  Section 4.06, Texas Optometry Act (Article

5-17     4552-4.06, Vernon's Texas Civil Statutes), is amended by adding

5-18     Subsection (e) to read as follows:

5-19           (e)  All complaints and investigation files are confidential

5-20     and shall not be disclosed, except as provided for by this section.

5-21     On a determination by the investigation-enforcement committee that

5-22     sufficient cause exists to warrant holding an informal conference

5-23     or offering a licensee the opportunity to show compliance with all

5-24     requirements for the retention of a license as provided by Section

5-25     2001.054(c), Government Code, all information regarding the

 6-1     complaint and its disposition shall be disclosed upon request under

 6-2     Chapter 552, Government Code. Nothing in this subsection shall

 6-3     prevent the board from furnishing any information regarding a

 6-4     licensee to criminal law enforcement authorities of this state,

 6-5     another state, or the United States.

 6-6           SECTION 9.  Subsection (a), Section 4.09, Texas Optometry Act

 6-7     (Article 4552-4.09, Vernon's Texas Civil Statutes), is amended to

 6-8     read as follows:

 6-9           (a)  The board by rule shall adopt procedures governing:

6-10                 (1)  informal disposition of a contested case under

6-11     Section 2001.056 [13(e)], Government Code [Administrative Procedure

6-12     and Texas Register Act (Article 6252-13a, Vernon's Texas Civil

6-13     Statutes), and its subsequent amendments]; and

6-14                 (2)  informal proceedings held in compliance with

6-15     Section 2001.054 [18(c)], Government Code [Administrative Procedure

6-16     and Texas Register Act (Article 6252-13a, Vernon's Texas Civil

6-17     Statutes), and its subsequent amendments].

6-18           SECTION 10.  Section 5.06, Texas Optometry Act (Article

6-19     4552-5.06, Vernon's Texas Civil Statutes), is amended to read as

6-20     follows:

6-21           Sec. 5.06.  SPECTACLES AS PREMIUMS.  It shall be unlawful for

6-22     any person in this state to give, or cause to be given, deliver, or

6-23     cause to be delivered, in any manner whatsoever, any contact

6-24     lenses, spectacles, or eyeglasses, separate or together, as a prize

6-25     or premium, or as an inducement to sell [any book, paper, magazine

 7-1     or any work of literature or art, or] any item of merchandise

 7-2     whatsoever.

 7-3           SECTION 11.  Subsection (b), Section 5.11, Texas Optometry

 7-4     Act (Article 4552-5.11, Vernon's Texas Civil Statutes), is amended

 7-5     to read as follows:

 7-6           (b)  For purposes of this section "controlling or attempting

 7-7     to control the professional judgment, the manner of practice, or

 7-8     the practice of an optometrist or therapeutic optometrist" shall

 7-9     include but not be limited to:

7-10                 (1)  setting or attempting to influence the

7-11     professional fees of an optometrist or therapeutic optometrist;

7-12                 (2)  setting or attempting to influence the office

7-13     hours of an optometrist or therapeutic optometrist;

7-14                 (3)  restricting or attempting to restrict an

7-15     optometrist's or therapeutic optometrist's freedom to see patients

7-16     on an appointment basis;

7-17                 (4)  terminating or threatening to terminate any lease,

7-18     agreement, or other relationship in an effort to control the

7-19     professional judgment, manner of practice, or practice of an

7-20     optometrist or therapeutic optometrist;

7-21                 (5)  providing, hiring, or sharing employees or

7-22     business services or similar items to or with an optometrist or

7-23     therapeutic optometrist; [or]

7-24                 (6)  making or guaranteeing a loan to an optometrist or

7-25     therapeutic optometrist in excess of the value of the collateral

 8-1     securing the loan;

 8-2                 (7)  setting or attempting to set the minimum number of

 8-3     patients an optometrist or therapeutic optometrist is to see or the

 8-4     number of types of diagnostic procedures an optometrist or

 8-5     therapeutic optometrist is to perform; or

 8-6                 (8)  requiring or attempting to require that a person

 8-7     other than the optometrist or therapeutic optometrist have computer

 8-8     access or other automatic access to patient records, names, or

 8-9     information.

8-10           SECTION 12.  Subsections (a) and (c), Section 5.12, Texas

8-11     Optometry Act (Article 4552-5.12, Vernon's Texas Civil Statutes),

8-12     are amended to read as follows:

8-13           (a)  In [order to ensure an adequate examination of a patient

8-14     for whom an optometrist or therapeutic optometrist signs or causes

8-15     to be signed a prescription for an ophthalmic lens, in] the initial

8-16     examination of a [the] patient, if the optometrist or therapeutic

8-17     optometrist determines that the patient requires a prescription for

8-18     an ophthalmic lens, the optometrist or therapeutic optometrist

8-19     shall make and record, if possible, the following findings of the

8-20     condition of the patient:

8-21                 (1)  Case History (ocular, physical, occupational, and

8-22     other pertinent information).

8-23                 (2)  Visual acuity.

8-24                 (3)  Biomicroscopy examination (lids, cornea, sclera,

8-25     etc.).

 9-1                 (4)  Internal ophthalmoscopic examination (media,

 9-2     fundus, etc.).

 9-3                 (5)  Static retinoscopy, O.D., O.S., or autorefractor.

 9-4                 (6)  Subjective findings, far point and near point.

 9-5                 (7)  Assessment of binocular function.

 9-6                 (8)  Amplitude or range of accommodation.

 9-7                 (9)  Tonometry.

 9-8                 (10)  Angle of vision, to right and to left.

 9-9           (c)  The willful or repeated failure or refusal of an

9-10     optometrist or therapeutic optometrist to comply with any of the

9-11     foregoing requirements shall be considered by the board to

9-12     constitute prima facie evidence that the optometrist or therapeutic

9-13     optometrist is unfit or incompetent by reason of negligence within

9-14     the meaning of Section 4.04(a)(2) [4.04(a)(3)] of this Act[,] and

9-15     shall be sufficient ground for the filing of charges to cancel,

9-16     revoke, or suspend the license.  The charges shall state the

9-17     specific instances in which it is alleged that this section [the

9-18     rule] was not complied with.  At a hearing pursuant to the filing

9-19     of such charges, the person charged shall have the burden of

9-20     establishing that compliance with this section [the rule] in each

9-21     instance in which proof is adduced that it was not complied with

9-22     was not necessary to a proper examination of the patient in that

9-23     particular case.

9-24           SECTION 13.  Subsections (b), (c), and (j), Section 5.13,

9-25     Texas Optometry Act (Article 4552-5.13, Vernon's Texas Civil

 10-1    Statutes), are amended to read as follows:

 10-2          (b)  No optometrist or therapeutic optometrist shall divide,

 10-3    share, split, or allocate, either directly or indirectly, any fee

 10-4    for optometric or therapeutic optometric services or materials with

 10-5    any lay person, firm, or corporation, provided that this section

 10-6    [rule] shall not be interpreted to prevent an optometrist or

 10-7    therapeutic optometrist from paying an employee in the regular

 10-8    course of employment, and provided further, that it shall not be

 10-9    construed as a violation of this Act for any optometrist or

10-10    therapeutic optometrist to lease space from an establishment, or to

10-11    pay for franchise fees or other services, on a percentage or gross

10-12    receipts basis, or to sell, transfer, or assign accounts

10-13    receivable.  The provisions of this section authorizing payment

10-14    based upon a percentage of gross receipts shall not be construed as

10-15    authorizing any activity which is prohibited under Section 5.11 of

10-16    this Act.

10-17          (c)  No optometrist or therapeutic optometrist shall divide,

10-18    share, split, or allocate, either directly or indirectly, any fee

10-19    for optometric or therapeutic optometric services or materials with

10-20    another optometrist, therapeutic optometrist, or with a physician

10-21    except upon a division of service or responsibility provided that

10-22    this section [rule] shall not be interpreted to prevent

10-23    partnerships for the practice of optometry or therapeutic

10-24    optometry.  This Act does not prohibit an optometrist or

10-25    therapeutic optometrist from being employed on a salary, with or

 11-1    without bonus arrangements, by a licensed optometrist, therapeutic

 11-2    optometrist, or physician, regardless of the amount of supervision

 11-3    exerted by the employing optometrist, therapeutic optometrist, or

 11-4    physician over the office in which the employed optometrist or

 11-5    therapeutic optometrist works, provided such bonus arrangements, if

 11-6    any, shall not be based in whole or in part on the business or

 11-7    income of any optical company.

 11-8          (j)  The willful or repeated failure or refusal of an

 11-9    optometrist or therapeutic optometrist to comply with any of the

11-10    provisions of this section shall be considered by the board to

11-11    constitute prima facie evidence that such optometrist or

11-12    therapeutic optometrist is guilty of violation of this Act[,] and

11-13    shall be sufficient ground for the filing of charges to cancel,

11-14    revoke, or suspend a license.  The charges shall state the specific

11-15    instance or instances in which it is alleged that this section [the

11-16    rule] was not complied with.  Alternatively, or in addition to the

11-17    above, it shall be the duty of the board to institute and prosecute

11-18    an action in a court of competent jurisdiction to restrain or

11-19    enjoin the violation of any of the provisions of this section

11-20    [preceding rules].

11-21          SECTION 14.  Subsection (a), Section 5.14, Texas Optometry

11-22    Act (Article 4552-5.14, Vernon's Texas Civil Statutes), is amended

11-23    to read as follows:

11-24          (a)  In order to safeguard the visual welfare of the public

11-25    and the doctor-patient relationship, fix professional

 12-1    responsibility, establish standards of professional surroundings,

 12-2    more nearly secure to the patient the optometrist's or therapeutic

 12-3    optometrist's undivided loyalty and service, and carry out the

 12-4    prohibitions of this Act against placing an optometric or

 12-5    therapeutic optometric license in the service or at the disposal of

 12-6    unlicensed persons, the provisions of this section are applicable

 12-7    to any optometrist or therapeutic optometrist who leases space from

 12-8    or [and] practices optometry or therapeutic optometry on the

 12-9    premises of a mercantile establishment.

12-10          SECTION 15.  This Act takes effect September 1, 1997.

12-11          SECTION 16.  The importance of this legislation and the

12-12    crowded condition of the calendars in both houses create an

12-13    emergency and an imperative public necessity that the

12-14    constitutional rule requiring bills to be read on three several

12-15    days in each house be suspended, and this rule is hereby suspended.