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.