By: Nixon S.B. No. 1400
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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;
2-1 (G) the requirements of the:
2-2 (i) open meetings law,
2-3 Chapter 551 [271], Government Code [Acts of the 60th Legislature,
2-4 Regular Session, 1967 (Article 6252-17, Vernon's Texas Civil
2-5 Statutes), and its subsequent amendments];
2-6 (ii) open records law,
2-7 Chapter 552 [424], Government Code [Acts of the 63rd Legislature,
2-8 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
2-9 Statutes), and its subsequent amendments]; and
2-10 (iii) administrative
2-11 procedure law, Chapter 2001, Government Code [Administrative
2-12 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
2-13 Civil Statutes) and its subsequent amendments];
2-14 (H) the requirements of the conflict of interest
2-15 laws and other laws relating to public officials; and
2-16 (I) any applicable ethics policies adopted by
2-17 that state agency or the Texas Ethics Commission.
2-18 SECTION 3. Subsection (d), Section 2.05, Texas Optometry Act
2-19 (Article 4552-2.05, Vernon's Texas Civil Statutes), is amended to
2-20 read as follows:
2-21 (d) The board is subject to [the open meetings law,] Chapter
2-22 551 [271], Government Code [Acts of the 60th Legislature, Regular
2-23 Session, 1967, as amended (Article 6252-17, Vernon's Texas Civil
2-24 Statutes)], and Chapter 2001, Government Code [the Administrative
2-25 Procedure and Texas Register Act, as amended (Article 6252-13a,
2-26 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. Section 3.01, Texas Optometry Act (Article 4552-3.01,
3-13 Vernon's Texas Civil Statutes), is amended to read as follows:
3-14 Section 3.01(a). Must pass examination. Every person
3-15 hereafter desiring to be licensed to practice therapeutic optometry
3-16 in this state shall be required to pass the examination given by
3-17 the Texas Optometry Board. The examination must include
3-18 examination in pharmacology and related pathology.
3-19 (b) The board may waive the requirement for taking all or a
3-20 part of the examination required by this section, if:
3-21 (a) the board is satisfied that the applicant is
3-22 currently licensed and in good standing in another state,
3-23 (b) the board is satisfied that the applicant
3-24 previously passed a substantially equivalent licensing examination
3-25 in another state,
3-26 (c) the applicant has during at least 5 of the 7 years
4-1 immediately preceding the application date been:
4-2 (1) engaged in the active practice of therapeutic
4-3 optometry, or
4-4 (2) engaged in full time teaching at an accredited
4-5 college of optometry or medicine, and
4-6 (d) the applicant does not have any pending or unresolved
4-7 disciplinary actions against applicant's license in any other state
4-8 and has never had his or her optometry license suspended or
4-9 revoked.
4-10 SECTION 6. Subsection (b), Section 3.03B, Texas Optometry
4-11 Act (Article 4552-3.03B, Vernon's Texas Civil Statutes), is amended
4-12 to read as follows:
4-13 (b) Each [Of each] fee increase collected[, $50 shall be
4-14 deposited to the credit of the foundation school fund and $150]
4-15 shall be deposited to the credit of the general revenue fund. This
4-16 subsection applies to the disposition of each fee increase
4-17 regardless of any other provision of law providing for a different
4-18 disposition of funds.
4-19 SECTION 7. Subsection (b), Section 4.04, Texas Optometry Act
4-20 (Article 4552-4.04, Vernon's Texas Civil Statutes), is amended to
4-21 read as follows:
4-22 (b) Any person may begin proceedings under this section by
4-23 filing charges with the board in writing and under oath. If
4-24 charges are filed against a person or if the board proposes to
4-25 refuse a person's application for a license or to suspend or revoke
4-26 a person's license, the person is entitled to a hearing. The State
5-1 Office of Administrative Hearings shall conduct the hearing.
5-2 Except as provided by Subsection (c) of this section, proceedings
5-3 are governed by Chapter 2001, Government Code [the Administrative
5-4 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
5-5 Civil Statutes) and its subsequent amendments].
5-6 SECTION 8. Subsections (i), (j), (n), and (r), Section 4.05,
5-7 Texas Optometry Act (Article 4552-4.05, Vernon's Texas Civil
5-8 Statutes), are amended to read as follows:
5-9 (i) The notice of the board's order given to the person
5-10 under Chapter 2001, Government Code, [the Administrative Procedure
5-11 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
5-12 Statutes) and its subsequent amendments] must include a statement
5-13 of the right of the person to judicial review of the order.
5-14 (j) Within 30 days after the date the board's order is final
5-15 as provided by Subchapter F, Chapter 2001, Government Code [Section
5-16 16(c), Administrative Procedure and Texas Register Act (Article
5-17 6252-13a, Vernon's Texas Civil Statutes), and its subsequent
5-18 amendments], the person shall:
5-19 (1) pay the amount of the penalty;
5-20 (2) pay the amount of the penalty and file a petition
5-21 for judicial review contesting the occurrence of the violation, the
5-22 amount of the penalty, or both the occurrence of the violation and
5-23 the amount of the penalty; or
5-24 (3) without paying the amount of the penalty, file a
5-25 petition for judicial review contesting the occurrence of the
5-26 violation, the amount of the penalty, or both the occurrence of the
6-1 violation and the amount of the penalty.
6-2 (n) Judicial review of the order of the board:
6-3 (1) is instituted by filing a petition as provided by
6-4 Subchapter G, Chapter 2001, Government Code [Section 19,
6-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
6-6 Vernon's Texas Civil Statutes), and its subsequent amendments]; and
6-7 (2) is under the substantial evidence rule.
6-8 (r) All proceedings under this section are subject to
6-9 Chapter 2001, Government Code [the Administrative Procedure and
6-10 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-11 Statutes) and its subsequent amendments].
6-12 SECTION 9. Subsection (a), Section 4.09, Texas Optometry Act
6-13 (Article 4552-4.09, Vernon's Texas Civil Statutes), is amended to
6-14 read as follows:
6-15 (a) The board by rule shall adopt procedures governing:
6-16 (1) informal disposition of a contested case under
6-17 Section 2001.056 [13(e)], Government Code [Administrative Procedure
6-18 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-19 Statutes), and its subsequent amendments]; and
6-20 (2) informal proceedings held in compliance with
6-21 Section 2001.054 [18(c)], Government Code [Administrative Procedure
6-22 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-23 Statutes), and its subsequent amendments].
6-24 SECTION 10. Section 5.06, Texas Optometry Act (Article
6-25 4552-5.06, Vernon's Texas Civil Statutes), is amended to read as
6-26 follows:
7-1 Sec. 5.06 Spectacles as premiums. It shall be unlawful for
7-2 any person in this state to give, or cause to be given, deliver, or
7-3 cause to be delivered, in any manner whatsoever, any contact
7-4 lenses, spectacles, or eyeglasses, separate or together, as a prize
7-5 or premium, or as an inducement to sell [any book, paper, magazine
7-6 or any work of literature or art, or] any item of merchandise
7-7 whatsoever.
7-8 SECTION 11. Subsection (b), Section 5.11, Texas Optometry
7-9 Act (Article 4552-5.11, Vernon's Texas Civil Statutes), is amended
7-10 to read as follows:
7-11 (b) For purposes of this section "controlling or attempting
7-12 to control the professional judgment, the manner of practice, or
7-13 the practice of an optometrist or therapeutic optometrist" shall
7-14 include but not be limited to:
7-15 (1) setting or attempting to influence the
7-16 professional fees of an optometrist or therapeutic optometrist;
7-17 (2) setting or attempting to influence the office
7-18 hours of an optometrist or therapeutic optometrist;
7-19 (3) restricting or attempting to restrict an
7-20 optometrist's or therapeutic optometrist's freedom to see patients
7-21 on an appointment basis;
7-22 (4) terminating or threatening to terminate any lease,
7-23 agreement, or other relationship in an effort to control the
7-24 professional judgment, manner of practice, or practice of an
7-25 optometrist or therapeutic optometrist;
7-26 (5) providing, hiring, or sharing employees or
8-1 business services or similar items to or with an optometrist or
8-2 therapeutic optometrist; [or]
8-3 (6) making or guaranteeing a loan to an optometrist or
8-4 therapeutic optometrist in excess of the value of the collateral
8-5 securing the loan;
8-6 (7) setting or attempting to set the minimum number of
8-7 patients an optometrist or therapeutic optometrist is to see or the
8-8 number of types of diagnostic procedures an optometrist or
8-9 therapeutic optometrist is to perform; or
8-10 (8) requiring or attempting to require that a person
8-11 other than the optometrist or therapeutic optometrist have computer
8-12 access or other automatic access to patient records, names, or
8-13 information.
8-14 SECTION 12. Subsections (a) and (c), Section 5.12, Texas
8-15 Optometry Act (Article 4552-5.12, Vernon's Texas Civil Statutes),
8-16 are amended to read as follows:
8-17 (a) In [order to ensure an adequate examination of a patient
8-18 for whom an optometrist or therapeutic optometrist signs or causes
8-19 to be signed a prescription for an ophthalmic lens, in] the initial
8-20 examination of a [the] patient, if the optometrist or therapeutic
8-21 optometrist determines that the patient requires a prescription for
8-22 an ophthalmic lens, the optometrist or therapeutic optometrist
8-23 shall make and record, if possible, the following findings of the
8-24 condition of the patient:
8-25 (1) Case History (ocular, physical, occupational, and
8-26 other pertinent information).
9-1 (2) Visual acuity.
9-2 (3) Biomicroscopy examination (lids, cornea, sclera,
9-3 etc.).
9-4 (4) Internal ophthalmoscopic examination (media,
9-5 fundus, etc.).
9-6 (5) Static retinoscopy, O.D., O.S., or auto refractor.
9-7 (6) Subjective findings, far point and near point.
9-8 (7) Assessment of binocular function.
9-9 (8) Amplitude or range of accommodation.
9-10 (9) Tonometry.
9-11 (10) Angle of vision, to right and to left.
9-12 (c) The willful or repeated failure or refusal of an
9-13 optometrist or therapeutic optometrist to comply with any of the
9-14 foregoing requirements shall be considered by the board to
9-15 constitute prima facie evidence that the optometrist or therapeutic
9-16 optometrist is unfit or incompetent by reason of negligence within
9-17 the meaning of Section 4.04(a)(2) [4.04(a)(3)] of this Act[,] and
9-18 shall be sufficient ground for the filing of charges to cancel,
9-19 revoke, or suspend the license. The charges shall state the
9-20 specific instances in which it is alleged that this section [the
9-21 rule] was not complied with. At a hearing pursuant to the filing
9-22 of such charges, the person charged shall have the burden of
9-23 establishing that compliance with this section [the rule] in each
9-24 instance in which proof is adduced that it was not complied with
9-25 was not necessary to a proper examination of the patient in that
9-26 particular case.
10-1 SECTION 13. Subsections (b), (c), and (j), Section 5.13,
10-2 Texas Optometry Act (Article 4552-5.13, Vernon's Texas Civil
10-3 Statutes), are amended to read as follows:
10-4 (b) No optometrist or therapeutic optometrist shall divide,
10-5 share, split, or allocate, either directly or indirectly, any fee
10-6 for optometric or therapeutic optometric services or materials with
10-7 any lay person, firm, or corporation, provided that this section
10-8 [rule] shall not be interpreted to prevent an optometrist or
10-9 therapeutic optometrist from paying an employee in the regular
10-10 course of employment, and provided further, that it shall not be
10-11 construed as a violation of this Act for any optometrist or
10-12 therapeutic optometrist to lease space from an establishment, or to
10-13 pay for franchise fees or other services, on a percentage or gross
10-14 receipts basis, or to sell, transfer, or assign accounts
10-15 receivable. The provisions of this section authorizing payment
10-16 based upon a percentage of gross receipts shall not be construed as
10-17 authorizing any activity which is prohibited under Section 5.11 of
10-18 this Act.
10-19 (c) No optometrist or therapeutic optometrist shall divide,
10-20 share, split, or allocate, either directly or indirectly, any fee
10-21 for optometric or therapeutic optometric services or materials with
10-22 another optometrist, therapeutic optometrist, or with a physician
10-23 except upon a division of service or responsibility provided that
10-24 this section [rule] shall not be interpreted to prevent
10-25 partnerships for the practice of optometry or therapeutic
10-26 optometry. This Act does not prohibit an optometrist or
11-1 therapeutic optometrist from being employed on a salary, with or
11-2 without bonus arrangements, by a licensed optometrist, therapeutic
11-3 optometrist, or physician, regardless of the amount of supervision
11-4 exerted by the employing optometrist, therapeutic optometrist, or
11-5 physician over the office in which the employed optometrist or
11-6 therapeutic optometrist works, provided such bonus arrangements, if
11-7 any, shall not be based in whole or in part on the business or
11-8 income of any optical company.
11-9 (j) The willful or repeated failure or refusal of an
11-10 optometrist or therapeutic optometrist to comply with any of the
11-11 provisions of this section shall be considered by the board to
11-12 constitute prima facie evidence that such optometrist or
11-13 therapeutic optometrist is guilty of violation of this Act[,] and
11-14 shall be sufficient ground for the filing of charges to cancel,
11-15 revoke, or suspend a license. The charges shall state the specific
11-16 instance or instances in which it is alleged that this section [the
11-17 rule] was not complied with. Alternatively, or in addition to the
11-18 above, it shall be the duty of the board to institute and prosecute
11-19 an action in a court of competent jurisdiction to restrain or
11-20 enjoin the violation of any of the provisions of this section
11-21 [preceding rules].
11-22 SECTION 14. Subsection (a), Section 5.14, Texas Optometry
11-23 Act (Article 4552-5.14, Vernon's Texas Civil Statutes), is amended
11-24 to read as follows:
11-25 (a) In order to safeguard the visual welfare of the public
11-26 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, 1999.
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.