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.