HBA-MPM H.B. 2394 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2394 By: Maxey Public Health 3/19/1999 Introduced BACKGROUND AND PURPOSE Currently, the Texas Optometry Act regulates the practice of optometry in Texas. H.B. 2394 amends this Act to update statutory references to the recodification of the Open Meetings Act, the Open Records Act, and the Administrative Procedures Act. Furthermore, this bill revises dated references throughout the Act, and makes substantive changes in the Act with respect to the following: _the time limit that individuals may serve on the optometry board; _the prevention of optical companies from controlling the practice of optometrists regarding the number of patients the optometrist sees, and the diagnostic procedures performed by the optometrist (such companies are also prohibited from requiring direct access to the optometrist's computer records); and _licensure by endorsement. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2.02(i), Article 4552-2.02, V.T.C.S. (Texas Optometry Act), to prohibit the time a person serves on the Texas Optometry Board (board) prior to September 1, 1998, rather than 1981, from counting toward the two complete-term limitations placed on board members. SECTION 2. Amends Article 3, Article 4552-3.01 et seq., V.T.C.S. (Texas Optometry Act), by adding Section 3.085, as follows: Sec. 3.085. LICENSE WITHOUT EXAMINATION. Authorizes the board to issue a license to practice therapeutic optometry without requiring the applicant to pass all or part of the examination required by Section 3.01 of this Act if: _the applicant is licensed in good standing as a therapeutic optometrist in another state, the District of Columbia, or a territory of the United States; _the applicant has passed an examination that is substantially equivalent to the examination required by Section 3.01 of this Act; _during at least five of the seven years preceding the application date, the applicant has been actively engaged in the practice of therapeutic optometry or engaged in full-time teaching at an accredited college of optometry or medicine; _there are no pending disciplinary actions against the applicant in the state, district, or territory in which the applicant is licensed; and _the applicant's license has never been suspended or revoked. SECTION 3. Amends Section 4.07, Article 4552-4.07, V.T.C.S. (Texas Optometry Act), by adding Subsections (d)-(g), as follows: (d) Provides that a complaint or investigation concerning a license holder and all information and materials compiled by the board in connection with the complaint or investigation, except as provided by Subsections (e) and (f) of this section, are confidential and privileged and not subject to disclosure under Chapter 552 (Public Information), Government Code, or to disclosure, discovery, subpoena, or other means of legal compulsion for release of information to any person. (e) Authorizes the board, notwithstanding Subsection (d) of this section, to disclose the number of complaints in each category filed with the board regarding a license holder and the disciplinary action taken by the board against a license holder. (f) Provides that a complaint or investigation described by Subsection (d) of this section and all information and materials compiled by the board in connection with the complaint or investigation may be disclosed to the board and its employees or agents involved in license holder discipline; a party to a disciplinary action against the license holder or that party's designated representative; or a law enforcement or other governmental agency, if the disclosure is required or permitted by law. (g) Requires the board to provide the license holder with access to all information it intends to offer into evidence at a hearing no later than the 30th day it receives a written request from a license holder who is entitled to a hearing under this Act or from the license holder's attorney of record, unless good cause for delay is shown to the presiding officer at the hearing. SECTION 4. Amends Section 5.06, Article 4552-5.06, V.T.C.S. (Texas Optometry Act), to include contact lenses among other items that it is unlawful for any person in this state to give, or cause to be given, deliver, or cause to be delivered, in any manner whatsoever, as a prize or premium, or as an inducement to sell any item of merchandise whatsoever. Deletes book, paper, magazine, or any work of literature or art from the merchandise listed. Makes nonsubstantive changes. SECTION 5. Amends Section 5.11(b), Article 4552-5.11, V.T.C.S. (Texas Optometry Act), to include the following actions defined as "controlling or attempting to control the professional judgment, the manner of practice, or the practice or an optometrist or therapeutic optometrist" for purposes of this section: _setting or attempting to set the minimum number of patients an optometrist or therapeutic optometrist may see or the number of types of diagnostic procedures an optometrist or therapeutic optometrist may perform; or _requiring or attempting to require that a person other than an optometrist or therapeutic optometrist have computer access or other automatic access to patient records, patient names, or other information relating to patients. Makes conforming changes. SECTION 6. Amends Sections 5.12(a) and (c), Article 4552-5.12, V.T.C.S. (Texas Optometry Act), as follows: (a) Requires an optometrist or therapeutic optometrist to make and record certain findings in the initial examination of a patient, if the optometrist determines that the patient requires a prescription for an opthalmic lens, rather than if the optometrist or therapeutic optometrist signs or causes to be signed a prescription for an opthalmic lens. Makes nonsubstantive changes. (c) Requires the willful or repeated failure or refusal of an optometrist or therapeutic optometrist to comply with any of the foregoing requirements to be considered by the board to constitute prima facie evidence that the optometrist or therapeutic optometrist is unfit or incompetent by reason of negligence within the meaning of Section 4.04(a)(2), rather than 4.04(a)(3), of this Act, and to be sufficient ground for the filing of charges to cancel, revoke, or suspend a license. Specifies that charges stated against a person, or the person's attempts to establish compliance, are in reference to this section, rather than this rule. Section 4.04(a)(2) (Basic Competence) states that in order to ensure an adequate examination of a patient for whom an optometrist or therapeutic optometrist signs or causes to be signed a prescription for an ophthalmic lens, in the initial examination of the patient the optometrist or therapeutic optometrist shall make and record findings of the patient's visual acuity. Makes conforming and nonsubstantive changes. SECTION 7. Amends Sections 5.13(b), (c), and (j), Article 4552-5.13, V.T.C.S. (Texas Optometry Act), as follows: (b) Makes a conforming change. (c) Makes conforming and nonsubstantive changes. (j) Makes conforming changes. SECTION 8. Amends Section 5.14(a), Article 4552-5.14, V.T.C.S. (Texas Optometry Act), to make provisions of this section applicable to any optometrist or therapeutic optometrist who leases space from, or, rather than and, practices optometry or therapeutic optometry on the premises of a mercantile establishment. SECTION 9. Effective date: September 1, 1999. SECTION 10. Emergency clause.