78R7166 JMM-F
By: Capelo H.B. No. 2997
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of contact lens dispensing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 353.002, Occupations Code, is amended by
adding Subdivision (1-a) to read as follows:
(1-a) "Business hours" means the hours between 9 a.m.
and 6 p.m. on every day other than a Sunday or a federal holiday.
SECTION 2. Subchapter A, Chapter 353, Occupations Code, is
amended by adding Sections 353.005, 353.006, and 353.007 to read as
follows:
Sec. 353.005. EXEMPTION FROM OTHER LAWS. A permit holder
under this chapter who is not licensed under Subtitle B or Chapter
351 is exempt from the requirements of those laws as long as the
permit holder is in compliance with this chapter.
Sec. 353.006. DIGITAL SIGNATURE. (a) In this section,
"digital signature" means an electronic identifier intended by the
person using it to have the same force and effect as the use of a
manual signature.
(b) A written electronic communication sent from or
received in this state in connection with a transaction governed by
this chapter is considered signed if a digital signature is
transmitted with the communication.
(c) This section does not preclude any symbol from being
valid as a signature under other applicable law.
(d) The use of a digital signature under this chapter is
subject to criminal laws relating to fraud and computer crimes,
including Chapters 32 and 33, Penal Code.
Sec. 353.007. RULEMAKING. (a) The board may adopt rules to
give effect to the requirements of this chapter.
(b) The board shall adopt rules governing the prompt release
or confirmation of a patient's valid prescription.
SECTION 3. Section 353.051, Occupations Code, is amended to
read as follows:
Sec. 353.051. CONTACT LENS DISPENSER. Contact lenses may
be dispensed only by:
(1) a physician, optometrist, therapeutic
optometrist, or pharmacist;
(2) an employee of a physician, optometrist,
therapeutic optometrist, or pharmacist who performs contact lens
dispensing services only under the direct supervision and control
of the physician, optometrist, therapeutic optometrist, or
pharmacist; [or]
(3) an optician who holds a contact lens dispensing
permit issued under this subchapter; or
(4) a business entity that holds a contact lens
dispensing permit issued under this subchapter.
SECTION 4. Section 353.101, Occupations Code, is amended to
read as follows:
Sec. 353.101. PROHIBITED SELLING OR DISPENSING. A person,
other than the prescribing physician, optometrist, or therapeutic
optometrist, may not fill a contact lens prescription or sell or
dispense contact lenses to a consumer in this state unless the
person:
(1) receives a valid [an original] contact lens
prescription; or
(2) confirms the validity of the prescription as
required by this chapter [that has not expired and that conforms to
the requirements of this chapter].
SECTION 5. Section 353.102, Occupations Code, is amended to
read as follows:
Sec. 353.102. ACCURACY REQUIRED. A person who dispenses
contact lenses under this chapter from a contact lens prescription
shall fill the prescription accurately [subject to Section
353.103].
SECTION 6. Section 353.103, Occupations Code, is amended to
read as follows:
Sec. 353.103. [AUTHORIZED MODIFICATION OF] PRESCRIPTION
RECORDS. (a) A [If a patient presents a contact lens prescription
to be filled, but requests that fewer than the total number of
lenses authorized by the prescription be dispensed, the person
dispensing the lenses shall note on the prescription:
[(1) the number of lenses dispensed;
[(2) the number of lenses that remain eligible to be
dispensed under the prescription; and
[(3) the name, address, telephone number, and license
or permit number of the person dispensing the lenses.
[(b) A notation under Subsection (a) is a permanent
modification of the prescription. Except as provided by this
subsection, a contact lens prescription may not be modified.
[(c) Subject to Subsection (d), the] person dispensing
contact [the] lenses shall:
(1) maintain a copy [photocopy] of the [original
signed] prescription or confirmation record for each order until
the fifth anniversary of the date the prescription was filled[, as
modified, in the person's records as if the copy were the original
prescription]; and
(2) return any [the] original prescription received by
the person to the patient [so that the patient may have the
additional lenses dispensed elsewhere].
(b) [(d) When a prescription has been completely filled,
the person dispensing the lenses shall retain the original
prescription in the person's records until the fifth anniversary of
the date the prescription is completely filled.
[(e)] The board by rule may permit a contact lens
prescription required to be maintained under this chapter to be
scanned into a computer and the original paper prescription
destroyed.
SECTION 7. Section 353.104, Occupations Code, is amended to
read as follows:
Sec. 353.104. PRESCRIPTION [EMERGENCY] REFILL. (a) If a
patient orders contact lenses from a person authorized to dispense
lenses under this chapter, the patient's [needs an emergency refill
of the patient's contact lens prescription, a] physician,
optometrist, or therapeutic optometrist shall, on request, release
or confirm the patient's valid prescription [may telephone or fax
the prescription] to the [a person] authorized [to dispense]
contact lens dispenser within eight business hours [lenses under
Section 353.051].
(b) The person filling the prescription shall maintain a
copy of the prescription or confirmation [fax or telephone] record
[as if the record were an original signed prescription].
(c) The prescription or confirmation [fax or telephone]
record must include the name, address, telephone number, and
license number, if known, of the physician, optometrist, or
therapeutic optometrist.
SECTION 8. Section 353.152, Occupations Code, is amended to
read as follows:
Sec. 353.152. REQUIREMENTS FOR CONTACT LENS PRESCRIPTION.
A contact lens prescription must [be written and must] contain:
(1) the patient's name;
(2) the date the prescription was issued;
(3) the manufacturer of the contact lens to be
dispensed, if warranted by the patient's ocular health [needed];
(4) the expiration date of the prescription;
(5) the [original] signature of, or documentation of
the oral approval of, the physician, optometrist, or therapeutic
optometrist;
(6) [if the prescription is for disposable contact
lenses, the total number of lenses authorized to be issued under the
prescription and the recommended lens replacement interval;
[(7)] if the prescription is issued by an optometrist
or therapeutic optometrist, specification information required by
Texas Optometry Board rule; and
(7) [(8)] if the prescription is issued by a
physician, specification information required by Texas State Board
of Medical Examiners rule.
SECTION 9. Subchapter D, Chapter 353, Occupations Code, is
amended by adding Sections 353.1521 and 353.1522 to read as
follows:
Sec. 353.1521. PRESCRIPTION CONFIRMATION. (a) If a
patient presents a contact lens prescription to be filled, the
person filling the prescription shall:
(1) contact the prescribing physician, optometrist,
or therapeutic optometrist, by telephone or in another manner, to
confirm the validity of the prescription; and
(2) maintain the prescription record as required by
Section 353.103.
(b) On request by the patient or an authorized contact lens
dispenser acting for the patient, the prescribing physician,
optometrist, or therapeutic optometrist shall confirm the validity
of the patient's prescription to a person authorized to dispense
contact lenses under Section 353.051 within eight business hours.
(c) The prescription is considered confirmed for purposes
of Subsection (b) on the occurrence of one of the following:
(1) the person filling the prescription receives a
copy of the original prescription;
(2) the person issuing the prescription or that
person's agent confirms the prescription by communicating with the
person filling the prescription; or
(3) the person issuing the prescription fails to
communicate with the person filling the prescription within eight
business hours.
Sec. 353.1522. DISCRETIONARY DECLARATION THAT PRESCRIPTION
IS INVALID. (a) A physician, optometrist, or therapeutic
optometrist may declare that a prescription is invalid if the
expiration date of the prescription has passed.
(b) A physician, optometrist, or therapeutic optometrist
who declares under Subsection (a) that a prescription is invalid
must make the declaration promptly.
SECTION 10. Section 353.155, Occupations Code, is amended
to read as follows:
Sec. 353.155. EXTENSION OF PRESCRIPTION. (a) A physician,
optometrist, or therapeutic optometrist may extend the expiration
date for a contact lens prescription without completing another eye
examination.
(b) On request by a patient or an agent of the patient, a
prescribing physician, optometrist, or therapeutic optometrist
shall authorize at least once a two-month extension of the
patient's contact lens prescription.
(c) The physician, optometrist, or therapeutic optometrist
may extend the prescription in accordance with Section 353.104.
SECTION 11. Section 353.156, Occupations Code, is amended
to read as follows:
Sec. 353.156. PATIENT ACCESS TO PRESCRIPTION; TIMING. (a)
A physician, optometrist, or therapeutic optometrist who performs
an eye examination and fits a patient for contact lenses shall[, on
request,] prepare and give a contact lens prescription to the
patient.
(b) The [If the patient requests the contact lens
prescription during an initial or annual eye examination, the]
physician, optometrist, or therapeutic optometrist who issues a
contact lens prescription shall prepare and give the prescription
to the patient at the time the physician, optometrist, or
therapeutic optometrist determines the parameters of the
prescription. The physician, optometrist, or therapeutic
optometrist may require a follow-up examination only if warranted
by the patient's ocular health to determine the parameters of the
prescription.
(c) On [receipt of a prescription] request from a patient or
the patient's representative [who did not request or receive an
original contact lens prescription during an initial or annual eye
examination], the physician, optometrist, or therapeutic
optometrist shall provide the patient with the prescription at any
time during which the prescription is valid. If the patient
requests more than one prescription while the prescription is
valid, the physician, optometrist, or therapeutic optometrist
shall provide [to deliver] the prescription to the patient [or to
another person, the physician, optometrist, or therapeutic
optometrist may charge to the patient the cost of delivery].
SECTION 12. Sections 353.157(b) and (c), Occupations Code,
are amended to read as follows:
(b) Notwithstanding Section 353.156, a physician,
optometrist, or therapeutic optometrist may refuse to give a
contact lens prescription to a patient only if the prescription has
expired[:
[(1) the patient's ocular health presents a
contraindication for contact lenses;
[(2) refusal is warranted due to potential harm to the
patient's ocular health;
[(3) the patient has a medical condition indicating
that:
[(A) the patient's ocular health would be damaged
if the prescription were released to the patient; or
[(B) further monitoring of the patient is needed;
[(4) the patient has not paid for the examination and
fitting or has not paid other financial obligations to the
physician, optometrist, or therapeutic optometrist if the patient
would have been required to make an immediate or similar payment if
the examination revealed that ophthalmic goods were not required;
or
[(5) the request is made after the first anniversary
of the date of the patient's last eye examination].
(c) A [If a] physician, optometrist, or therapeutic
optometrist who refuses to release or confirm a [give a patient the]
patient's contact lens prescription shall [for a reason permitted
under Subsection (b), the physician, optometrist, or therapeutic
optometrist must:
[(1)] give the patient or an authorized contact lens
dispenser acting for the patient a written [verbal] explanation of
the reason for the refusal [action at the time of the action; and
[(2) maintain in the patient's records a written
explanation of the reason].
SECTION 13. Section 353.158, Occupations Code, is amended
to read as follows:
Sec. 353.158. PROHIBITED ACTION BY PHYSICIAN, OPTOMETRIST,
OR THERAPEUTIC OPTOMETRIST. A physician, optometrist, or
therapeutic optometrist may not:
(1) charge a patient a fee in addition to the
examination fee and fitting fee as a condition for giving a contact
lens prescription to the patient; [or]
(2) condition the availability to a patient of an eye
examination, a fitting for contact lenses, the issuance of a
contact lens prescription, or a combination of those services on a
requirement that the patient agree to purchase contact lenses or
other ophthalmic goods from the physician, optometrist, or
therapeutic optometrist or from a specific ophthalmic dispenser;
(3) fill a prescription that the physician,
optometrist, or therapeutic optometrist has refused to release to a
patient, unless the refusal is based on the patient's ocular health
as permitted under Section 353.156(b); or
(4) fail to respond within eight business hours to a
request by the patient or an authorized contact lens dispenser
acting for the patient to release or confirm the patient's contact
lens prescription.
SECTION 14. Section 353.204(b), Occupations Code, is
amended to read as follows:
(b) Except as otherwise provided by this section, the board
has the exclusive responsibility [is responsible] for enforcing
this chapter and for enforcing Subtitle B and Chapter 351 with
respect to any alleged violation by a business entity that holds a
permit under Section 353.052.
SECTION 15. Subchapter E, Chapter 353, Occupations Code, is
amended by adding Section 353.2041 to read as follows:
Sec. 353.2041. DEFENSE TO ENFORCEMENT OR OTHER ACTION. It
is a defense to any action against a permit holder under this
chapter that the permit holder was prevented from complying with a
provision of this chapter as a result of the refusal by a physician,
optometrist, or therapeutic optometrist, in violation of this
chapter, to promptly release or confirm a prescription.
SECTION 16. (a) This Act takes effect September 1, 2003.
(b) A change in law made by this Act with respect to the
requirements applicable to the release or confirmation of a contact
lens prescription applies only to a request for release or
confirmation made on or after the effective date of this Act.
(c) The Texas Board of Health shall adopt rules under
Section 353.007(b), Occupations Code, as added by this Act, not
later than January 1, 2004.