By Maxey H.B. No. 2394
76R7904 SMH-F
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. Section 2.02(i), Texas Optometry Act (Article
1-5 4552-2.02, Vernon's Texas Civil Statutes), is amended to read as
1-6 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, 1998
1-9 [1981], shall not count toward this limitation.
1-10 SECTION 2. Article 3, Texas Optometry Act (Article 4552-3.01
1-11 et seq., Vernon's Texas Civil Statutes), is amended by adding
1-12 Section 3.085 to read as follows:
1-13 Sec. 3.085. LICENSE WITHOUT EXAMINATION. The board may
1-14 issue a license to practice therapeutic optometry without requiring
1-15 the applicant to pass all or part of the examination required by
1-16 Section 3.01 of this Act if:
1-17 (1) the applicant is licensed in good standing as a
1-18 therapeutic optometrist in another state, the District of Columbia,
1-19 or a territory of the United States;
1-20 (2) the applicant has passed an examination that is
1-21 substantially equivalent to the examination required by Section
1-22 3.01 of this Act;
1-23 (3) during at least five of the seven years preceding
1-24 the application date, the applicant has been:
2-1 (A) actively engaged in the practice of
2-2 therapeutic optometry; or
2-3 (B) engaged in full-time teaching at an
2-4 accredited college of optometry or medicine;
2-5 (4) there are no pending disciplinary actions against
2-6 the applicant in the state, district, or territory in which the
2-7 applicant is licensed; and
2-8 (5) the applicant's license has never been suspended
2-9 or revoked.
2-10 SECTION 3. Section 4.07, Texas Optometry Act (Article
2-11 4552-4.07, Vernon's Texas Civil Statutes), is amended by adding
2-12 Subsections (d)-(g) to read as follows:
2-13 (d) Except as provided by Subsections (e) and (f) of this
2-14 section, a complaint or investigation concerning a license holder
2-15 and all information and materials compiled by the board in
2-16 connection with the complaint or investigation are:
2-17 (1) confidential and privileged; and
2-18 (2) not subject to:
2-19 (A) disclosure under Chapter 552, Government
2-20 Code; or
2-21 (B) disclosure, discovery, subpoena, or other
2-22 means of legal compulsion for release of information to any person.
2-23 (e) Notwithstanding Subsection (d) of this section, the
2-24 board may disclose the number of complaints in each category filed
2-25 with the board regarding a license holder and the disciplinary
2-26 action taken by the board against a license holder.
2-27 (f) A complaint or investigation described by Subsection (d)
3-1 of this section and all information and materials compiled by the
3-2 board in connection with the complaint or investigation may be
3-3 disclosed to:
3-4 (1) the board and its employees or agents involved in
3-5 license holder discipline;
3-6 (2) a party to a disciplinary action against the
3-7 license holder or that party's designated representative; or
3-8 (3) a law enforcement or other governmental agency, if
3-9 the disclosure is required or permitted by law.
3-10 (g) Unless good cause for delay is shown to the presiding
3-11 officer at the hearing, the board shall provide the license holder
3-12 with access to all information that the board intends to offer into
3-13 evidence at the hearing not later than the 30th day after the date
3-14 the board receives a written request from a license holder who is
3-15 entitled to a hearing under this Act or from the license holder's
3-16 attorney of record.
3-17 SECTION 4. Section 5.06, Texas Optometry Act (Article
3-18 4552-5.06, Vernon's Texas Civil Statutes), is amended to read as
3-19 follows:
3-20 Sec. 5.06. SPECTACLES AS PREMIUMS. It shall be unlawful for
3-21 any person in this state to give, or cause to be given, deliver, or
3-22 cause to be delivered, in any manner whatsoever, any contact
3-23 lenses, spectacles, or eyeglasses, separate or together, as a prize
3-24 or premium, or as an inducement to sell any [book, paper, magazine
3-25 or any work of literature or art, or any] item of merchandise
3-26 whatsoever.
3-27 SECTION 5. Section 5.11(b), Texas Optometry Act (Article
4-1 4552-5.11, Vernon's Texas Civil Statutes), is amended to read as
4-2 follows:
4-3 (b) For purposes of this section "controlling or attempting
4-4 to control the professional judgment, the manner of practice, or
4-5 the practice of an optometrist or therapeutic optometrist" shall
4-6 include but not be limited to:
4-7 (1) setting or attempting to influence the
4-8 professional fees of an optometrist or therapeutic optometrist;
4-9 (2) setting or attempting to influence the office
4-10 hours of an optometrist or therapeutic optometrist;
4-11 (3) restricting or attempting to restrict an
4-12 optometrist's or therapeutic optometrist's freedom to see patients
4-13 on an appointment basis;
4-14 (4) terminating or threatening to terminate any lease,
4-15 agreement, or other relationship in an effort to control the
4-16 professional judgment, manner of practice, or practice of an
4-17 optometrist or therapeutic optometrist;
4-18 (5) providing, hiring, or sharing employees or
4-19 business services or similar items to or with an optometrist or
4-20 therapeutic optometrist; [or]
4-21 (6) making or guaranteeing a loan to an optometrist or
4-22 therapeutic optometrist in excess of the value of the collateral
4-23 securing the loan;
4-24 (7) setting or attempting to set the minimum number of
4-25 patients an optometrist or therapeutic optometrist may see or the
4-26 number of types of diagnostic procedures an optometrist or
4-27 therapeutic optometrist may perform; or
5-1 (8) requiring or attempting to require that a person
5-2 other than an optometrist or therapeutic optometrist have computer
5-3 access or other automatic access to patient records, patient names,
5-4 or other information relating to patients.
5-5 SECTION 6. Sections 5.12(a) and (c), Texas Optometry Act
5-6 (Article 4552-5.12, Vernon's Texas Civil Statutes), are amended to
5-7 read as follows:
5-8 (a) An [In order to ensure an adequate examination of a
5-9 patient for whom an] optometrist or therapeutic optometrist who
5-10 determines [signs or causes to be signed a prescription for an
5-11 ophthalmic lens,] in the initial examination of a [the] patient
5-12 that the patient requires a prescription for an ophthalmic lens
5-13 [the optometrist or therapeutic optometrist] shall make and record,
5-14 if possible, the following findings of the condition of the
5-15 patient:
5-16 (1) Case History (ocular, physical, occupational and
5-17 other pertinent information).
5-18 (2) Visual acuity.
5-19 (3) Biomicroscopy examination (lids, cornea, sclera,
5-20 etc.).
5-21 (4) Internal ophthalmoscopic examination (media,
5-22 fundus, etc.).
5-23 (5) Static retinoscopy, O.D., O.S., or autorefractor.
5-24 (6) Subjective findings, far point and near point.
5-25 (7) Assessment of binocular function.
5-26 (8) Amplitude or range of accommodation.
5-27 (9) Tonometry.
6-1 (10) Angle of vision, to right and to left.
6-2 (c) The willful or repeated failure or refusal of an
6-3 optometrist or therapeutic optometrist to comply with any of the
6-4 foregoing requirements shall be considered by the board to
6-5 constitute prima facie evidence that the optometrist or therapeutic
6-6 optometrist is unfit or incompetent by reason of negligence within
6-7 the meaning of Section 4.04(a)(2) [4.04(a)(3)] of this Act[,] and
6-8 shall be sufficient ground for the filing of charges to cancel,
6-9 revoke, or suspend the license. The charges shall state the
6-10 specific instances in which it is alleged that this section [the
6-11 rule] was not complied with. At a hearing pursuant to the filing
6-12 of such charges, the person charged shall have the burden of
6-13 establishing that compliance with this section [the rule] in each
6-14 instance in which proof is adduced that it was not complied with
6-15 was not necessary to a proper examination of the patient in that
6-16 particular case.
6-17 SECTION 7. Sections 5.13(b), (c), and (j), Texas Optometry
6-18 Act (Article 4552-5.13, Vernon's Texas Civil Statutes), are amended
6-19 to read as follows:
6-20 (b) No optometrist or therapeutic optometrist shall divide,
6-21 share, split, or allocate, either directly or indirectly, any fee
6-22 for optometric or therapeutic optometric services or materials with
6-23 any lay person, firm or corporation, provided that this section
6-24 [rule] shall not be interpreted to prevent an optometrist or
6-25 therapeutic optometrist from paying an employee in the regular
6-26 course of employment, and provided further, that it shall not be
6-27 construed as a violation of this Act for any optometrist or
7-1 therapeutic optometrist to lease space from an establishment, or to
7-2 pay for franchise fees or other services, on a percentage or gross
7-3 receipts basis, or to sell, transfer or assign accounts receivable.
7-4 The provisions of this section authorizing payment based upon a
7-5 percentage of gross receipts shall not be construed as authorizing
7-6 any activity which is prohibited under Section 5.11 of this Act.
7-7 (c) No optometrist or therapeutic optometrist shall divide,
7-8 share, split, or allocate, either directly or indirectly, any fee
7-9 for optometric or therapeutic optometric services or materials with
7-10 another optometrist or[,] therapeutic optometrist[,] or with a
7-11 physician except upon a division of service or responsibility,
7-12 provided that this section [rule] shall not be interpreted to
7-13 prevent partnerships for the practice of optometry or therapeutic
7-14 optometry. This Act does not prohibit an optometrist or
7-15 therapeutic optometrist from being employed on a salary, with or
7-16 without bonus arrangements, by a licensed optometrist, therapeutic
7-17 optometrist, or physician, regardless of the amount of supervision
7-18 exerted by the employing optometrist, therapeutic optometrist, or
7-19 physician over the office in which the employed optometrist or
7-20 therapeutic optometrist works, provided such bonus arrangements, if
7-21 any, shall not be based in whole or in part on the business or
7-22 income of any optical company.
7-23 (j) The willful or repeated failure or refusal of an
7-24 optometrist or therapeutic optometrist to comply with any of the
7-25 provisions of this section shall be considered by the board to
7-26 constitute prima facie evidence that such optometrist or
7-27 therapeutic optometrist is guilty of violation of this Act, and
8-1 shall be sufficient ground for the filing of charges to cancel,
8-2 revoke, or suspend a license. The charges shall state the specific
8-3 instance or instances in which it is alleged that this section [the
8-4 rule] was not complied with. Alternatively, or in addition to the
8-5 above, it shall be the duty of the board to institute and prosecute
8-6 an action in a court of competent jurisdiction to restrain or
8-7 enjoin the violation of any of the provisions of this section
8-8 [preceding rules].
8-9 SECTION 8. Section 5.14(a), Texas Optometry Act (Article
8-10 4552-5.14, Vernon's Texas Civil Statutes), is amended to read as
8-11 follows:
8-12 (a) In order to safeguard the visual welfare of the public
8-13 and the doctor-patient relationship, fix professional
8-14 responsibility, establish standards of professional surroundings,
8-15 more nearly secure to the patient the optometrist's or therapeutic
8-16 optometrist's undivided loyalty and service, and carry out the
8-17 prohibitions of this Act against placing an optometric or
8-18 therapeutic optometric license in the service or at the disposal of
8-19 unlicensed persons, the provisions of this section are applicable
8-20 to any optometrist or therapeutic optometrist who leases space from
8-21 or [and] practices optometry or therapeutic optometry on the
8-22 premises of a mercantile establishment.
8-23 SECTION 9. This Act takes effect September 1, 1999.
8-24 SECTION 10. The importance of this legislation and the
8-25 crowded condition of the calendars in both houses create an
8-26 emergency and an imperative public necessity that the
8-27 constitutional rule requiring bills to be read on three several
9-1 days in each house be suspended, and this rule is hereby suspended.