77R11761 JMM-F
By Gray, Maxey, Capelo H.B. No. 1877
Substitute the following for H.B. No. 1877:
By Gray C.S.H.B. No. 1877
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of contact lens dispensing.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter A, Chapter 353, Occupations Code, is
1-5 amended by adding Sections 353.005, 353.006, and 353.007 to read as
1-6 follows:
1-7 Sec. 353.005. EXEMPTION FROM OTHER LAWS. A permit holder
1-8 under this chapter who is not licensed under Subtitle B or Chapter
1-9 351 is exempt from the requirements of those laws as long as the
1-10 permit holder is in compliance with this chapter.
1-11 Sec. 353.006. DIGITAL SIGNATURE. (a) In this section,
1-12 "digital signature" means an electronic identifier intended by the
1-13 person using it to have the same force and effect as the use of a
1-14 manual signature.
1-15 (b) A written electronic communication sent from or received
1-16 in this state in connection with a transaction governed by this
1-17 chapter is considered signed if a digital signature is transmitted
1-18 with the communication.
1-19 (c) This section does not preclude any symbol from being
1-20 valid as a signature under other applicable law.
1-21 (d) The use of a digital signature under this chapter is
1-22 subject to criminal laws relating to fraud and computer crimes,
1-23 including Chapters 32 and 33, Penal Code.
1-24 Sec. 353.007. RULEMAKING. (a) The board may adopt rules to
2-1 give effect to the requirements of this chapter.
2-2 (b) The board shall adopt rules governing the prompt release
2-3 or confirmation of a patient's valid prescription.
2-4 SECTION 2. Section 353.051, Occupations Code, is amended to
2-5 read as follows:
2-6 Sec. 353.051. CONTACT LENS DISPENSER. Contact lenses may be
2-7 dispensed only by:
2-8 (1) a physician, optometrist, therapeutic optometrist,
2-9 or pharmacist;
2-10 (2) an employee of a physician, optometrist,
2-11 therapeutic optometrist, or pharmacist who performs contact lens
2-12 dispensing services only under the direct supervision and control
2-13 of the physician, optometrist, therapeutic optometrist, or
2-14 pharmacist; [or]
2-15 (3) an optician who holds a contact lens dispensing
2-16 permit issued under this subchapter; or
2-17 (4) a business entity that holds a contact lens
2-18 dispensing permit issued under this subchapter.
2-19 SECTION 3. Section 353.101, Occupations Code, is amended to
2-20 read as follows:
2-21 Sec. 353.101. PROHIBITED SELLING OR DISPENSING. A person,
2-22 other than the prescribing physician, optometrist, or therapeutic
2-23 optometrist, may not fill a contact lens prescription or sell or
2-24 dispense contact lenses to a consumer in this state unless the
2-25 person:
2-26 (1) receives a valid [an original] contact lens
2-27 prescription; or
3-1 (2) confirms the validity of the prescription as
3-2 required by this chapter [that has not expired and that conforms to
3-3 the requirements of this chapter].
3-4 SECTION 4. Section 353.102, Occupations Code, is amended to
3-5 read as follows:
3-6 Sec. 353.102. ACCURACY REQUIRED. A person who dispenses
3-7 contact lenses under this chapter from a contact lens prescription
3-8 shall fill the prescription accurately [subject to Section
3-9 353.103].
3-10 SECTION 5. Section 353.103, Occupations Code, is amended to
3-11 read as follows:
3-12 Sec. 353.103. [AUTHORIZED MODIFICATION OF] PRESCRIPTION
3-13 RECORDS. (a) A [If a patient presents a contact lens prescription
3-14 to be filled, but requests that fewer than the total number of
3-15 lenses authorized by the prescription be dispensed, the person
3-16 dispensing the lenses shall note on the prescription:]
3-17 [(1) the number of lenses dispensed;]
3-18 [(2) the number of lenses that remain eligible to be
3-19 dispensed under the prescription; and]
3-20 [(3) the name, address, telephone number, and license
3-21 or permit number of the person dispensing the lenses.]
3-22 [(b) A notation under Subsection (a) is a permanent
3-23 modification of the prescription. Except as provided by this
3-24 subsection, a contact lens prescription may not be modified.]
3-25 [(c) Subject to Subsection (d), the] person dispensing
3-26 contact [the] lenses shall:
3-27 (1) maintain a copy [photocopy] of the [original
4-1 signed] prescription or confirmation record for each order until
4-2 the fifth anniversary of the date the prescription was filled [, as
4-3 modified, in the person's records as if the copy were the original
4-4 prescription]; [and]
4-5 (2) return any [the] original prescription received by
4-6 the person to the patient; and
4-7 (3) notify the physician, optometrist, or therapeutic
4-8 optometrist, in the manner by which the confirmation was
4-9 accomplished, of the number of each prescribed lens dispensed to
4-10 the patient and the date the lens was dispensed [so that the
4-11 patient may have the additional lenses dispensed elsewhere].
4-12 (b) [(d) When a prescription has been completely filled, the
4-13 person dispensing the lenses shall retain the original prescription
4-14 in the person's records until the fifth anniversary of the date the
4-15 prescription is completely filled.]
4-16 [(e)] The board by rule may permit a contact lens
4-17 prescription required to be maintained under this chapter to be
4-18 scanned into a computer and the original paper prescription
4-19 destroyed.
4-20 SECTION 6. Section 353.104, Occupations Code, is amended to
4-21 read as follows:
4-22 Sec. 353.104. PRESCRIPTION [EMERGENCY] REFILL. (a) If a
4-23 patient orders contact lenses from a person authorized to dispense
4-24 lenses under this chapter, the patient's [needs an emergency refill
4-25 of the patient's contact lens prescription, a] physician,
4-26 optometrist, or therapeutic optometrist shall, on request, promptly
4-27 release or confirm the patient's valid prescription [may telephone
5-1 or fax the prescription] to the [a person] authorized [to dispense]
5-2 contact lens dispenser [lenses under Section 353.051].
5-3 (b) The person filling the prescription shall maintain a
5-4 copy of the prescription or confirmation [fax or telephone] record
5-5 [as if the record were an original signed prescription].
5-6 (c) The prescription or confirmation [fax or telephone]
5-7 record must include the name, address, telephone number, and
5-8 license number, if known, of the physician, optometrist, or
5-9 therapeutic optometrist.
5-10 SECTION 7. Section 353.152, Occupations Code, is amended to
5-11 read as follows:
5-12 Sec. 353.152. REQUIREMENTS FOR CONTACT LENS PRESCRIPTION. A
5-13 contact lens prescription must [be written and must] contain:
5-14 (1) the patient's name;
5-15 (2) the date the prescription was issued;
5-16 (3) the manufacturer of the contact lens to be
5-17 dispensed, if warranted by the patient's ocular health [needed];
5-18 (4) the expiration date of the prescription;
5-19 (5) the [original] signature of, or documentation of
5-20 the oral approval of, the physician, optometrist, or therapeutic
5-21 optometrist;
5-22 (6) if the prescription is for disposable contact
5-23 lenses, the total number of lenses authorized to be issued under
5-24 the prescription and the recommended lens replacement interval;
5-25 (7) if the prescription is issued by an optometrist or
5-26 therapeutic optometrist, specification information required by
5-27 Texas Optometry Board rule; and
6-1 (8) if the prescription is issued by a physician,
6-2 specification information required by Texas State Board of Medical
6-3 Examiners rule.
6-4 SECTION 8. Subchapter D, Chapter 353, Occupations Code, is
6-5 amended by adding Sections 353.1521 and 353.1522 to read as
6-6 follows:
6-7 Sec. 353.1521. PRESCRIPTION CONFIRMATION. (a) If a patient
6-8 presents a contact lens prescription to be filled, the person
6-9 filling the prescription shall:
6-10 (1) contact the prescribing physician, optometrist, or
6-11 therapeutic optometrist, by telephone or in another manner, to
6-12 confirm the validity of the prescription; and
6-13 (2) maintain the prescription record as required by
6-14 Section 353.103.
6-15 (b) On request by the patient or an authorized contact lens
6-16 dispenser acting for the patient, the prescribing physician,
6-17 optometrist, or therapeutic optometrist shall promptly confirm the
6-18 validity of the patient's prescription to a person authorized to
6-19 dispense contact lenses under Section 353.051.
6-20 Sec. 353.1522. DISCRETIONARY DECLARATION THAT PRESCRIPTION
6-21 IS INVALID. (a) A physician, optometrist, or therapeutic
6-22 optometrist may declare that a prescription is invalid if:
6-23 (1) the expiration date of the prescription has
6-24 passed; or
6-25 (2) the patient's record reflects that the total
6-26 number of contact lenses dispensed exceeds by 20 percent the number
6-27 authorized under Section 353.152(6).
7-1 (b) A physician, optometrist, or therapeutic optometrist who
7-2 declares under Subsection (a) that a prescription is invalid must
7-3 make the declaration promptly.
7-4 SECTION 9. Section 353.155, Occupations Code, is amended to
7-5 read as follows:
7-6 Sec. 353.155. EXTENSION OF PRESCRIPTION. (a) A physician,
7-7 optometrist, or therapeutic optometrist may extend the expiration
7-8 date for a contact lens prescription without completing another eye
7-9 examination.
7-10 (b) On request by a patient or an agent of the patient, a
7-11 prescribing physician, optometrist, or therapeutic optometrist
7-12 shall authorize at least once a two-month extension of the
7-13 patient's contact lens prescription.
7-14 (c) The physician, optometrist, or therapeutic optometrist
7-15 may extend the prescription in accordance with Section 353.104.
7-16 SECTION 10. Section 353.156, Occupations Code, is amended to
7-17 read as follows:
7-18 Sec. 353.156. PATIENT ACCESS TO PRESCRIPTION; TIMING. (a)
7-19 A physician, optometrist, or therapeutic optometrist who performs
7-20 an eye examination and fits a patient for contact lenses shall[, on
7-21 request,] prepare and give a contact lens prescription to the
7-22 patient.
7-23 (b) The [If the patient requests the contact lens
7-24 prescription during an initial or annual eye examination, the]
7-25 physician, optometrist, or therapeutic optometrist who issues a
7-26 contact lens prescription shall prepare and give the prescription
7-27 to the patient at the time the physician, optometrist, or
8-1 therapeutic optometrist determines the parameters of the
8-2 prescription. The physician, optometrist, or therapeutic
8-3 optometrist may require a follow-up examination only if warranted
8-4 by the patient's ocular health to determine the parameters of the
8-5 prescription.
8-6 (c) On [receipt of a prescription] request from a patient
8-7 [who did not request or receive an original contact lens
8-8 prescription during an initial or annual eye examination], the
8-9 physician, optometrist, or therapeutic optometrist shall provide
8-10 the patient with the prescription at any time during which the
8-11 prescription is valid. If the patient requests more than one
8-12 prescription while the prescription is valid, the physician,
8-13 optometrist, or therapeutic optometrist shall provide [to deliver]
8-14 the prescription to the patient [or to another person, the
8-15 physician, optometrist, or therapeutic optometrist may charge to
8-16 the patient the cost of delivery].
8-17 SECTION 11. Sections 353.157(b) and (c), Occupations Code,
8-18 are amended to read as follows:
8-19 (b) Notwithstanding Section 353.156, a physician,
8-20 optometrist, or therapeutic optometrist may refuse to give a
8-21 contact lens prescription to a patient only if:
8-22 (1) the patient's ocular health presents a
8-23 contraindication for contact lenses;
8-24 (2) refusal is warranted due to potential harm to the
8-25 patient's ocular health;
8-26 (3) the patient has a medical condition indicating
8-27 that:
9-1 (A) the patient's ocular health would be damaged
9-2 if the prescription were released to the patient; or
9-3 (B) further monitoring of the patient is needed;
9-4 (4) the patient has not paid for the examination and
9-5 fitting or has not paid other financial obligations to the
9-6 physician, optometrist, or therapeutic optometrist if the patient
9-7 would have been required to make an immediate or similar payment if
9-8 the examination revealed that ophthalmic goods were not required,
9-9 unless the unpaid amount is due to a pending or disputed insurance
9-10 claim; or
9-11 (5) the prescription has expired [the request is made
9-12 after the first anniversary of the date of the patient's last eye
9-13 examination].
9-14 (c) A [If a] physician, optometrist, or therapeutic
9-15 optometrist who refuses to release or confirm a [give a patient
9-16 the] patient's contact lens prescription shall [for a reason
9-17 permitted under Subsection (b), the physician, optometrist, or
9-18 therapeutic optometrist must:]
9-19 [(1)] give the patient or an authorized contact lens
9-20 dispenser acting for the patient a written [verbal] explanation of
9-21 the reason for the refusal [action at the time of the action; and]
9-22 [(2) maintain in the patient's records a written
9-23 explanation of the reason].
9-24 SECTION 12. Section 353.158, Occupations Code, is amended to
9-25 read as follows:
9-26 Sec. 353.158. PROHIBITED ACTION BY PHYSICIAN, OPTOMETRIST,
9-27 OR THERAPEUTIC OPTOMETRIST. A physician, optometrist, or
10-1 therapeutic optometrist may not:
10-2 (1) charge a patient a fee in addition to the
10-3 examination fee and fitting fee as a condition for giving a contact
10-4 lens prescription to the patient; [or]
10-5 (2) condition the availability to a patient of an eye
10-6 examination, a fitting for contact lenses, the issuance of a
10-7 contact lens prescription, or a combination of those services on a
10-8 requirement that the patient agree to purchase contact lenses or
10-9 other ophthalmic goods from the physician, optometrist, or
10-10 therapeutic optometrist or from a specific ophthalmic dispenser;
10-11 (3) fill a prescription that the physician,
10-12 optometrist, or therapeutic optometrist has refused to release to a
10-13 patient, unless the refusal is based on the patient's ocular health
10-14 as permitted under Section 353.156(b) or Section 353.157(b)(1),
10-15 (2), or (3); or
10-16 (4) fail to respond promptly to a request by the
10-17 patient or an authorized contact lens dispenser acting for the
10-18 patient to release or confirm the patient's contact lens
10-19 prescription.
10-20 SECTION 13. Section 353.204(b), Occupations Code, is amended
10-21 to read as follows:
10-22 (b) Except as otherwise provided by this section, the board
10-23 has the exclusive responsibility [is responsible] for enforcing
10-24 this chapter and for enforcing Subtitle B and Chapter 351 with
10-25 respect to any alleged violation by a business entity that holds a
10-26 permit under Section 353.052.
10-27 SECTION 14. Subchapter E, Chapter 353, Occupations Code, is
11-1 amended by adding Section 353.2041 to read as follows:
11-2 Sec. 353.2041. DEFENSE TO ENFORCEMENT OR OTHER ACTION. It is
11-3 a defense to any action against a permit holder under this chapter
11-4 that the permit holder was prevented from complying with a
11-5 provision of this chapter as a result of the refusal by a
11-6 physician, optometrist, or therapeutic optometrist, in violation of
11-7 this chapter, to promptly release or confirm a prescription.
11-8 SECTION 15. (a) This Act takes effect September 1, 2001.
11-9 (b) A change in law made by this Act with respect to the
11-10 requirements applicable to the release or confirmation of a contact
11-11 lens prescription applies only to a request for release or
11-12 confirmation made on or after the effective date of this Act.
11-13 (c) The Texas Board of Health shall adopt rules under
11-14 Section 353.007(b), Occupations Code, as added by this Act, not
11-15 later than January 1, 2002.