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.