By:  Nixon                                            S.B. No. 1843
         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 coverage of eye care services under certain health
 1-2     benefit plans; to civil liability of optometrists; to the
 1-3     regulation of optometry; providing an administrative penalty.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5                ARTICLE 1.  HEALTH BENEFIT PLAN COVERAGE FOR
 1-6                             EYE CARE SERVICES.
 1-7           SECTION 1.01.  Subchapter E, Chapter 21, Insurance Code, is
 1-8     amended by adding Article 21.53X to read as follows:
 1-9           Art. 21.53X.  COVERAGE FOR CERTAIN EYE CARE PROCEDURES
1-10           Sec. 1.  DEFINITIONS.  In this article:
1-11                 (1)  "Enrollee" means an individual enrolled in a
1-12     health benefit plan.
1-13                 (2)  "Eye care provider" means an ophthalmologist or
1-14     optometrist.
1-15                 (3)  "Health benefit plan" means a plan described in
1-16     Section 2(a) of this article.
1-17                 (4)  "Ophthalmologist" means a person licensed as a
1-18     physician by the Texas State Board of Medical Examiners and who
1-19     specializes in ophthalmology.
1-20                 (5)  "Optometrist" means a person licensed as an
1-21     optometrist or therapeutic optometrist by the Texas Optometry
1-22     Board.
 2-1           Sec. 2.  SCOPE OF ARTICLE.  (a)  This article applies only to
 2-2     a health benefit plan that provides benefits for medical or
 2-3     surgical expenses incurred as a result of a health condition,
 2-4     accident, or sickness, including an individual, group, blanket, or
 2-5     franchise insurance policy or insurance agreement, a group hospital
 2-6     service contract, or an individual or group evidence of coverage or
 2-7     similar coverage document that is offered by:
 2-8                       (1)  an insurance company;
 2-9                       (2)  a group hospital service corporation
2-10     operating under Chapter 20 of this code;
2-11                       (3)  a fraternal benefit society operating under
2-12     Chapter 10 of this code;
2-13                       (4)  a stipulated premium insurance company
2-14     operating under Chapter 22 of this code;
2-15                       (5)  a reciprocal exchange operating under
2-16     Chapter 19 of the code;
2-17                       (6)  a health maintenance organization operating
2-18     under the Texas Health Maintenance Organization Act (Chapter 20A,
2-19     Vernon's Texas Insurance Code); and
2-20                       (7)  a multiple employer welfare arrangement that
2-21     holds a certificate of authority under Article 3.95-2 of this code;
2-22     or
2-23                       (8)  an approved nonprofit health corporation
2-24     that holds a certificate of authority issued by the commissioner
2-25     under Article 21.52F of this code.
2-26           (b)  This article does not apply to:
 3-1                 (1)  a plan that provides coverage:
 3-2                       (A)  only for a specified disease or other
 3-3     limited benefit;
 3-4                       (B)  only for accidental death or dismemberment;
 3-5                       (C)  for wages or payments in lieu of wages for a
 3-6     period during which an employee is absent from work because of
 3-7     sickness or injury;
 3-8                       (D)  as a supplement to liability insurance;
 3-9                       (E)  for credit insurance;
3-10                       (F)  only for dental or vision care;
3-11                       (G)  only for hospital expenses; or
3-12                       (H)  only for indemnity for hospital confinement;
3-13                 (2)  a small employer health benefit plan written under
3-14     Chapter 26 of this code.
3-15                 (3)  a Medicare supplemental policy as defined by
3-16     section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss);
3-17                 (4)  workers' compensation insurance coverage;
3-18                 (5)  medical payment insurance coverage issued as part
3-19     of a motor vehicle insurance policy, or
3-20                 (6)  a long-term care policy, including a nursing home
3-21     fixed indemnity policy, unless the commissioner determines that the
3-22     policy provides benefit coverage so comprehensive that the policy
3-23     is a health benefit plan as described by Subsection (a) of this
3-24     section.
3-25           Sec. 3.  ACCESS OF ENROLLEE TO HEALTH CARE.  (a)  Each health
3-26     benefit plan subject to this article shall permit an enrollee who
 4-1     is entitled to coverage under the plan to select, in addition to a
 4-2     primary care physician, an eye care provider to provide health care
 4-3     services relating to the eye that are covered under the health care
 4-4     plan.  This section does not preclude an enrollee from selecting a
 4-5     family physician, internal medicine physician, or other qualified
 4-6     physician to provide that care.
 4-7           (b)  The plan shall include in the classification of persons
 4-8     authorized to be selected as eye care providers under the plan
 4-9     properly credentialed ophthalmologists and properly licensed
4-10     optometrists in numbers sufficient to ensure reasonable access by
4-11     enrollees to an eye care provider.
4-12           (c)  This section does not affect the authority of a health
4-13     benefit plan to establish selection criteria regarding other
4-14     physicians or health care providers who provide services through
4-15     the plan.
4-16     Sec. 4.  DIRECT ACCESS TO SERVICES OF AN EYE CARE PROVIDER.
4-17           (a)  In addition to other benefits authorized by the plan,
4-18     each health benefit plan shall permit an enrollee who designates an
4-19     eye care provider as provided under Section 3 of this article
4-20     direct access to the selected eye care provider without a referral
4-21     by the enrollee's primary care physician or other gatekeeper and
4-22     without the requirement of prior authorization or precertification
4-23     from a health benefit plan.  The eye care provider may provide
4-24     those eye care services that are covered by the health benefit plan
4-25     and are within the scope of practice of the eye care provider.  If
4-26     the eye care provider determines that the enrollee requires the
 5-1     care of a specialist, the eye care provider may refer the enrollee
 5-2     to a specialist approved by the health benefit plan.
 5-3           (b)  This article does not require a health benefit plan to
 5-4     provide routine eye examinations or to provide routine vision
 5-5     correction.  However, if a routine eye examination or routine
 5-6     vision correction is covered under the health benefit plan, then
 5-7     that eye care must be delivered in accordance with this article.
 5-8           (c)  A health benefit plan may not impose a copayment or
 5-9     deductible for direct access to the health care services of an eye
5-10     care provider under this section unless such an additional cost is
5-11     imposed for access to other health care services provided under the
5-12     plan.
5-13           (d)  This section does not affect the authority of a health
5-14     benefit plan to require the designated eye care provider to forward
5-15     information concerning the care of the patient to the primary care
5-16     physician or gatekeeper.  The health benefit plan may not impose
5-17     any penalty, financial or otherwise, on an eye care provider or the
5-18     patient for failure to provide that information if the eye care
5-19     provider has made a reasonable and good-faith effort to provide the
5-20     information to the primary care physician or gatekeeper.
5-21           (e)  A health benefit plan may not sanction or terminate
5-22     primary care physicians as a result of the direct access of
5-23     enrollees to participating eye care providers as provided by this
5-24     section.
5-25           Sec. 5.  NOTICE.  Each health benefit plan shall provide to
5-26     each enrollee in the plan a timely notice, written in clear and
 6-1     accurate language, notifying the enrollee that the enrollees may
 6-2     select an eye care provider for direct access to health care
 6-3     related to the eye that is covered by the health benefit plan.  The
 6-4     notice must also state in clear and accurate language the extent to
 6-5     which the health benefit plan covers routine and nonroutine eye
 6-6     care services.
 6-7           Sec. 6.  DISCRIMINATION PROHIBITED.  A health benefit plan
 6-8     may not:
 6-9                 (1)  discriminate against a health care practitioner
6-10     because the practitioner is an optometrist, therapeutic
6-11     optometrist, or opthalmologist;
6-12                 (2)  fail to include optometrists, therapeutic
6-13     optometrists, and opthalmologists as participating practitioners in
6-14     the health benefit plan;
6-15                 (3)  restrict or discourage a participant from
6-16     obtaining covered vision or medical eye care services or procedures
6-17     covered under the plan from a participating optometrist,
6-18     therapeutic optometrist, or opthalmologist solely because the
6-19     practitioner is an optometrist, therapeutic optometrist, or
6-20     opthalmologist;
6-21                 (4)  fail to include the name of a participating
6-22     optometrist, therapeutic optometrist, or ophthalmologist on a list
6-23     of participating practitioners or fail to give equal prominence to
6-24     the name;
6-25                 (5)  fail to include an optometrist, therapeutic
6-26     optometrist, or ophthalmologist as a participating practitioner in
 7-1     the plan because the optometrist, therapeutic optometrist, or
 7-2     ophthalmologist does not have medical staff privileges at a
 7-3     hospital or a particular hospital; or
 7-4                 (6)  fail to include an optometrist, therapeutic
 7-5     optometrist, or ophthalmologist as a participating practitioner in
 7-6     the plan because the services or procedures provided by the
 7-7     optometrist, therapeutic optometrist, or ophthalmologist may be
 7-8     provided by another type of practitioner.
 7-9           Sec. 7.  RULES.  The commissioner shall adopt rules as
7-10     necessary to implement this article.
7-11           Sec. 8.  ADMINISTRATIVE PENALTY.  An insurance company,
7-12     health maintenance organization, or other entity that operates a
7-13     health benefit plan in violation of this article is subject to an
7-14     administrative penalty as provided by Article 1.10E of this code.
7-15                 ARTICLE 2.  LIABILITY RELATING TO PROVISION
7-16                           OF OPTOMETRIC SERVICES.
7-17           SECTION 2.01.  Title 4, Civil Practice and Remedies Code, is
7-18     amended by adding Chapter 90 to read as follows:
7-19     CHAPTER 90.  PROVISION OF FREE OPTOMETRIC SERVICES
7-20           Sec. 90.001.  LIABILITY OF OPTOMETRIST.  An optometrist who
7-21     provides health care services is not liable for damages arising
7-22     from an act or omission relating to the provision of the services
7-23     if the services are:
7-24                 (1)  provided without expectation by the optometrist of
7-25     any remuneration and for which the optometrist does not receive any
7-26     remuneration;
 8-1                 (2)  free to the recipient;
 8-2                 (3)  within the optometrist's scope of practice; and
 8-3                 (4)  provided in a manner that does not constitute
 8-4     gross negligence or an intentional tort.
 8-5           Sec. 90.002.  LIABILITY OF PERSON PROVIDING FACILITY FOR
 8-6     OPTOMETRIST.  A person who provides a facility used by an
 8-7     optometrist to provide services described by Section 90.001 is not
 8-8     liable for damages arising from the provision of the services
 8-9     unless those damages arise from an act or omission by the person
8-10     that constitutes gross negligence or an intentional tort.
8-11           SECTION 2.02.  Section 1.03(a)(3), Medical Liability and
8-12     Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
8-13     Civil Statutes), is amended to read as follows:
8-14           (3)  "Health care provider" means any person, partnership,
8-15     professional association, corporation, facility, or institution
8-16     duly licensed or chartered by the State of Texas to provide health
8-17     care as a registered nurse, hospital, dentist, optometrist,
8-18     podiatrist, pharmacist, or nursing home, or an officer, employee,
8-19     or agent thereof acting in the course and scope of his employment.
8-20                     ARTICLE 3.  PRACTICE OF OPTOMETRY.
8-21           SECTION 3.01.  Section 1.02, Texas Optometry Act (Article
8-22     4552-1.02, Vernon's Texas Civil Statutes), is amended by adding
8-23     Subdivision (11) to read as follows:
8-24                       (11)  "Surgery" or "surgical procedure" means a
8-25     cutting operation.
8-26           SECTION 3.02.  Sections 1.03(b) and (d)-(f), Texas Optometry
 9-1     Act (Article 4552-1.03, Vernon's Texas Civil Statutes), are amended
 9-2     to read as follows:
 9-3                 (b)  A therapeutic optometrist may administer and
 9-4     prescribe any appropriate medication, device, or nonsurgical
 9-5     procedure [ophthalmic devices, over the counter oral medications,
 9-6     and topical ocular pharmaceutical agents, other than antiviral
 9-7     agents and antiglaucoma agents,] for the purpose of diagnosing and
 9-8     treating visual defects, abnormal conditions, and diseases of the
 9-9     human vision system, including the eye and adnexa and may remove
9-10     superficial foreign matter and eyelashes from the external eye or
9-11     adnexa.  [If a therapeutic optometrist utilizes topical steroids of
9-12     a strength of one percent concentration to treat a condition and
9-13     the condition has not substantially improved within seven days of
9-14     the initial topical steroid application, the therapeutic
9-15     optometrist shall consult with an opthalmologist and the
9-16     opthalmologist shall then establish the treatment regimen.  If a
9-17     therapeutic optometrist utilizes topical steroids of a strength of
9-18     less than one percent concentration to treat a condition and the
9-19     condition has not substantially improved within 14 days of the
9-20     initial topical steroid application, the therapeutic optometrist
9-21     shall consult with an opthalmologist and the opthalmologist shall
9-22     then establish the treatment regimen.  This subsection does not
9-23     authorize an optometrist to treat glaucoma in a manner that was not
9-24     permitted by law on August 31, 1991.]
9-25           (d)  A therapeutic optometrist may not administer or
9-26     prescribe oral or parenteral medications or treat glaucoma without
 10-1    holding a certificate issued by the board.  To be eligible for a
 10-2    certificate, a therapeutic optometrist must:
 10-3                (1)  complete 24 hours of instruction in a clinical
 10-4    review course approved by the board on pharmacology and the
 10-5    treatment, management, and timely referral for surgical
 10-6    intervention of glaucoma; and
 10-7                (2)  pass an examination approved by the board covering
 10-8    those subjects.
 10-9          (e)  The board by rule shall specify the professional
10-10    designation of a therapeutic optometrist certified under Subsection
10-11    (d) of this section.
10-12          (f)  The board shall adopt rules setting forth the specific
10-13    classifications of pharmaceutical agents therapeutic optometrists
10-14    may use in the practice of therapeutic optometry.  Use by a
10-15    therapeutic optometrist of pharmaceutical agents not authorized by
10-16    the board or otherwise authorized by law shall constitute a
10-17    violation of this Act.
10-18          [(c)  A five member technical advisory committee is created
10-19    to assist the board in determining the specific pharmaceutical
10-20    agents which may be used in the practice of therapeutic optometry.
10-21    Appointments to the committee shall be for two year terms, and no
10-22    member may serve more than two consecutive terms.]
10-23          [(f)  The members of the technical advisory committee shall
10-24    be appointed as follows:  one must be an optometrist or therapeutic
10-25    optometrist licensed and practicing in this state, appointed by the
10-26    Texas Optometry Board; one must be a physician licensed and
 11-1    practicing in this state whose practice is limited to opthalmology,
 11-2    appointed by the Texas State Board of Medical Examiners; one must
 11-3    be a pharmacist licensed and practicing pharmacy in this state,
 11-4    appointed by the Texas State Board of Pharmacy; one must be a
 11-5    faculty member at a state medical institution of higher education
 11-6    with expertise in pharmacology, appointed by the Texas State Board
 11-7    of Medical Examiners; and one must be a faculty member of a college
 11-8    of optometry at a state institution of higher education, appointed
 11-9    by the Texas Optometry Board.]
11-10          SECTION 3.03.  Section 3.01, Texas Optometry Act (Article
11-11    4552-3.01, Vernon's Texas Civil Statutes), is amended to read as
11-12    follows:
11-13          SECTION 3.01  MUST PASS EXAMINATION; EXCEPTION.  (a)  Every
11-14    person hereafter desiring to be licensed to practice therapeutic
11-15    optometry in this state shall be required to pass the examination
11-16    given by the Texas Optometry Board.  The examination must include
11-17    examination in pharmacology and related pathology.
11-18          (b)  The board may issue a license to practice therapeutic
11-19    optometry without requiring the application to pass all or part of
11-20    the examination required by Subsection (a) of this section if:
11-21                (1)  the applicant presents evidence satisfactory to
11-22    the board that the applicant is licensed in good standing as a
11-23    therapeutic optometrist in another state, the District of Columbia,
11-24    or a territory of the United States;
11-25                (2)  the applicant presents evidence satisfactory to
11-26    the board that the applicant has passed an examination that is
 12-1    substantially equivalent to the examination required by Subsection
 12-2    (a) of this section;
 12-3                (3)  during at least five of the seven years preceding
 12-4    the application date, the applicant has been:
 12-5                      (A)  actively engaged in the practice of
 12-6    therapeutic optometry, or
 12-7                      (B)  engaged in full-time teaching at an
 12-8    accredited college of optometry or medicine; and
 12-9                (4)  there are no pending disciplinary actions against
12-10    the applicant in a state, district, or territory in which the
12-11    applicant is licensed and the applicant's license has never been
12-12    suspended or revoked.
12-13          ARTICLE 4.  TRANSITION; EFFECTIVE DATE; EMERGENCY
12-14          SECTION 4.01.  Article 21.53X, Insurance Code, as added by
12-15    this Act, applies only to an insurance policy, contract, or
12-16    evidence of coverage delivered, issued for delivery, or renewed on
12-17    or after January 1, 2000.  A policy, contract, or evidence of
12-18    coverage delivered, issued for delivery, or renewed before
12-19    January 1, 2000, is governed by the law as it existed immediately
12-20    before the effective date of this Act, and that law is continued in
12-21    effect for that purpose.
12-22          SECTION 4.02.  Chapter 90, Civil Practices and Remedies Code,
12-23    as added by Section 5 of this Act, and the Medical Liability and
12-24    Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
12-25    Civil Statutes), as amended by this Act, apply only to the
12-26    provision of health care services on or after that date.  The
 13-1    provision of health care services before the effective date of this
 13-2    Act is governed by the law applicable to the provision of those
 13-3    services immediately before the effective date of this Act, and
 13-4    that law is continued in effect for that purpose.
 13-5          (c) All other sections of this Act take effect September 1,
 13-6    1999.
 13-7          SECTION 4.03.  This Act takes effect September 1, 1999.
 13-8          SECTION 4.04.  The importance of this legislation and the
 13-9    crowded condition of the calendars in both houses create an
13-10    emergency and an imperative public necessity that the
13-11    constitutional rule requiring bills to be read on three several
13-12    days in each house be suspended, and this rule is hereby suspended.