Pennsylvania Act 1996-130 — OPTOMETRIC PRACTICE AND LICENSURE ACT - OMNIBUS AMENDMENTS

Act text

OPTOMETRIC PRACTICE AND LICENSURE ACT - OMNIBUS AMENDMENTS
                 Act of Oct. 30, 1996, P.L. 721, No. 130              Cl. 63
                             Session of 1996
                               No. 1996-130

     HB 1166

                                  AN ACT

     Amending the act of June 6, 1980 (P.L.197, No.57), entitled "An
        act regulating the licensure and practice of optometry,
        making repeals and providing penalties," further providing
        for definitions and for the powers and duties of the State
        Board of Optometry, including licensure.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Sections 2 and 2.1(a) and (b) of the act of June
     6, 1980 (P.L.197, No.57), known as the Optometric Practice and
     Licensure Act, amended or added May 15, 1986 (P.L.186, No.58),
     are amended to read:
      Section 2.  Definitions.
        The following words and phrases when used in this act shall
     have, unless the context clearly indicates otherwise, the
     meanings given to them in this section:
        "Advisory Committee on Continuing Professional Education."
     An advisory committee established pursuant to section 3 to make
     recommendations to the board relating to continuing professional
     education.
        "Board."  The State Board of Optometry.
        "Examination and diagnosis."  Any examination or diagnostic
     means or method compatible with optometric education and
     professional competence. The term shall encompass the use of
     pharmaceutical agents for diagnostic purposes classified as
     miotics, mydriatics, cycloplegics, topical anesthetics and dyes
     when applied topically to the eye, which pharmaceutical agents
     shall be approved by the Secretary of Health and, subject to the
     rules and regulations of the board, provided however that with
     respect to optometrists licensed before March 1, 1974, only such
     optometrists who have satisfactorily completed a course in
     pharmacology as it applies to optometry, with particular
     emphasis on the topical application of diagnostic pharmaceutical
     agents to the eye, approved by the board shall be permitted to
     use diagnostic pharmaceutical agents topically in the practice
     of optometry.
        "Fitting of contact lenses."  A procedure in which a
     prescribed contact lens is placed upon the eye of a patient and
     the lens-cornea relationship is evaluated with the use of a
     biomicroscope or slit-lamp.
        "Optometrist."  Any person who, following formal and
     recognized training in the art and science of optometry has
     received a doctor of optometry degree from an accredited
     institution and is qualified to seek or has acquired a license
     to practice the profession of optometry. An optometrist shall be
     identified either by "Doctor of Optometry," "O.D.," or "Dr."
     followed by "Optometrist."
        "Practice of optometry."
            (1)  The use of any and all means or methods for the
        examination, diagnosis and [except for drugs or surgery,]
        treatment of conditions of the human visual system and shall
        include the examination for, and adapting and fitting of, any
        and all kinds and types of lenses including contact lenses.
            (2)  The administration and prescription of legend and
        nonlegend drugs as approved by the Secretary of Health for
        treatment of the anterior segment of the eye, the eyelids,
        the lacrimal system and the conjunctiva and the removal of
        superficial foreign bodies from the ocular surface and adnexa
        so long as treatment of diseases or conditions of the visual
        system as authorized under this paragraph shall not continue
        beyond six weeks from the initiation of treatment unless the
        prescribing optometrist documents consultation with a
        licensed physician. As used in this paragraph, the initiation
        of treatment may, but need not, include the prescription or
        administration of pharmaceutical agents for therapeutic
        purposes.
            (3)  The term shall not include:
                (i)  surgery, including, but not limited to, laser
            surgery; the use of lasers for therapeutic purposes; and
            the use of injections in the treatment of ocular disease;
                (ii)  the use of Schedule I and Schedule II
            controlled substances;
                (iii)  the use of beta blockers and the use of
            steroids;
                (iv)  treatment of systemic disease; and
                (v)  the treatment of glaucoma.
        "Treatment."  The use of any and all preventive and
     corrective means and methods[, except for drugs or surgery,] for
     aid to the human visual system and shall include but is not
     limited to the adapting and fitting of any and all kinds and
     types of lenses and devices including contact lenses and the
     provision of vision developmental and perceptual therapy or
     ocular exercise for aid to or enhancement of visual functions.
      Section 2.1.  State Board of Optometry.
        (a)  The State Board of Optometry shall consist of [12] 13
     members, all of whom shall be residents of Pennsylvania. [Seven]
     Eight members shall be optometrists who are licensed to practice
     in Pennsylvania and who have been practicing optometry in
     Pennsylvania for at least the five-year period immediately
     preceding their appointment. Three members shall be persons
     representing the public at large, one member shall be the
     Commissioner of Professional and Occupational Affairs and one
     member shall be the Director of the Bureau of Consumer
     Protection in the Office of Attorney General or his designee.
     The professional and public members of the board shall be
     appointed by the Governor with the advice and consent of a
     majority of the members elected to the Senate.
        (b)  [Professional members appointed after the effective date
     of this act as successors to professional members whose terms
     expired prior to the effective date of this act shall serve the
     following terms: one shall serve one year; one shall serve two
     years; two shall serve three years; and the remainder shall
     serve four years. All other] All professional and public members
     shall serve for terms of four years. No member shall be eligible
     for appointment to serve more than two consecutive terms. A
     member may continue to serve for a period not to exceed six
     months following the expiration of his or her term if a
     successor has not been duly appointed and qualified according to
     law. [Any member whose term expired prior to the effective date
     of this act may continue to serve for no more than six months
     following the effective date of this act.]
        * * *
        Section 2.  Section 3(a)(1) and (2) and (b)(1), (3) and (11)
     of the act, amended May 15, 1986 (P.L.186, No.58), are amended
     and subsection (a) is amended by adding paragraphs to read:
      Section 3.  Powers and duties of the board.
        (a)  The board shall have the following duties:
            (1)  To meet at least [six] four times annually at a
        place within the Commonwealth determined by the board for the
        transaction of its business.
            (2)  To prescribe the subjects to be tested, authorize
        written and practical portions of the examination and
        contract with a professional testing organization for
        examinations of qualified applicants for licensure at least
        twice annually at such times and places as designated by the
        board. All written, oral and practical examinations shall be
        prepared and administered by a qualified and approved
        professional testing organization in accordance with section
        812.1 of the act of April 9, 1929 (P.L.177, No.175), known as
        "The Administrative Code of 1929[," except that neither the
        oral nor the practical examination shall be subject to
        section 812.1 until such examination is available from a
        testing organization.]."
            (2.1)  To determine, in accordance with optometric
        education, training, professional competence and skill, the
        means and methods for the examination, diagnosis and
        treatment of conditions of the visual system.
            (2.2)  To establish and approve a course, including an
        examination, with respect to the prescription and
        administration of pharmaceutical agents for therapeutic
        purposes as defined in this act.
            (2.3)  To require optometrists who prescribe and
        administer pharmaceutical agents for therapeutic purposes to
        be certified by the board.
            (2.4)  To notify biennially the State Board of Pharmacy
        of the names of optometrists who have been certified in
        accordance with section 4.1 with respect to the prescription
        and administration of pharmaceutical agents for therapeutic
        purposes.
            (2.5)  To require every licensee to insure liability by
        purchasing and maintaining professional liability insurance
        coverage in accordance with the following provisions:
                (i)  Beginning with the first license renewal period
            at least two years after the effective date of this
            paragraph or upon first making application for licensure,
            whichever occurs earlier, a licensee shall obtain and
            maintain, to the satisfaction of the board, professional
            liability insurance coverage in the minimum amount of
            $200,000 per occurrence and $600,000 per annual
            aggregate. The professional liability insurance coverage
            shall remain in effect as long as the licensee maintains
            a current license.
                (ii)  A licensee shall notify the board within 30
            days of the licensee's failure to be covered by the
            required insurance. Failure to notify the board shall be
            actionable under section 7 or 8. Further, the license to
            practice shall automatically be suspended upon failure to
            be covered by the required insurance and shall not be
            restored until submission to the board of satisfactory
            evidence that the licensee has the required professional
            liability insurance coverage.
                (iii)  The board shall accept from licensees as
            satisfactory evidence of insurance coverage, pursuant to
            this paragraph, proof of any or all of the following:
            self-insurance, personally purchased professional
            liability insurance, professional liability insurance
            coverage provided by the licensee's employer or any
            similar type of coverage.
                (iv)  The board, after consultation with the
            Insurance Commissioner, shall establish standards and
            procedures by regulation for self-insurance under this
            paragraph.
            * * *
        (b)  The board shall have the following powers:
            (1)  To grant, refuse, revoke, limit or suspend any
        license to practice optometry in this Commonwealth pursuant
        to the provisions of this act.
            * * *
            (3)  To obtain injunctions from a court of competent
        [jurisdiction against persons practicing optometry in
        violation of this act when such practice constitutes a threat
        to the health and welfare of the public; provided that the
        board or its designated hearing examiner shall conduct a
        hearing as otherwise required by this section within 30 days
        of the injunction date. The chairperson of the board shall
        exercise this power whenever the board is not in session.]
        jurisdiction upon petition of the commissioner or the board.
        In any proceeding under this section, it shall not be
        necessary to show that any person is individually injured by
        the actions complained of. If the court finds that the
        respondent has violated this subsection, it shall enjoin him
        from so practicing or holding himself out as an optometrist
        until he has been duly licensed or certified. Procedure in
        such cases shall be the same as in any other injunctive suit.
            * * *
            (11)  In consultation with [the Council on Optometric
        Education or its successor] a national accrediting body
        recognized by the United States Department of Education and
        the appropriate regional accrediting body recognized by the
        United States Department of Education, to approve those
        optometric educational institutions in the United States and
        Canada which are accredited for the purposes of this act.
            * * *
        Section 3.  Section 4 of the act is amended to read:
      Section 4.  [Requirements for examination.] General
                    qualifications for licensure.
        (a)  A person holding a Doctor of Optometry degree from an
     accredited optometric educational institution in the United
     States or Canada, who furnishes the board with evidence that he
     is at least 21 years of age, has completed the educational
     requirements prescribed by the board and is of good moral
     character, is not addicted in the use of alcohol or narcotics or
     other habit-forming drugs and who pays the appropriate fee may
     apply to the board for examination for licensure.
        (b)  The board may establish further requirements to be met
     by optometric graduates from unaccredited schools or colleges of
     optometry before granting such graduates the right to take an
     examination.
        (c)  An applicant who knowingly makes a false statement of
     fact in an application for examination shall be deemed to have
     violated this act and shall be subject to the penalties set
     forth herein.
        (d)  The board shall not issue a license to an applicant who
     has been convicted of a felony under the act of April 14, 1972
     (P.L.233, No.64), known as "The Controlled Substance, Drug,
     Device and Cosmetic Act," or of an offense under the laws of
     another jurisdiction which, if committed in this Commonwealth,
     would be a felony under "The Controlled Substance, Drug, Device
     and Cosmetic Act," unless:
            (1)  at least ten years have elapsed from the date of
        conviction;
            (2)  the applicant satisfactorily demonstrates to the
        board that he has made significant progress in personal
        rehabilitation since the conviction such that licensure of
        the applicant should not be expected to create a substantial
        risk of harm to the health and safety of his patients or the
        public or a substantial risk of further criminal violations;
        and
            (3)  the applicant otherwise satisfies the requirements
        of this act.
        Section 4.  The act is amended by adding a section to read:
      Section 4.1.  Certification to prescribe and administer
                    pharmaceutical agents for therapeutic purposes.
        (a)  In addition to its other powers and duties under this
     act, the board shall have the power and duty to certify
     qualified licensees to prescribe and administer pharmaceutical
     agents for therapeutic purposes as defined in this amendatory
     act. To obtain such certification, a licensee shall submit an
     application to the board on a form provided by the board showing
     to the satisfaction of the board that the licensee has either:
            (1)  graduated from an accredited school of optometry and
        as a condition for graduation has successfully completed a
        minimum of 100 hours in the prescription and administration
        of pharmaceutical agents for therapeutic purposes and has
        passed a licensure examination to practice optometry, which
        examination included the prescription and administration of
        pharmaceutical agents for therapeutic purposes; or
            (2)  completed a board-approved course of a minimum of
        100 hours in the prescription and administration of
        pharmaceutical agents for therapeutic purposes and has passed
        an examination on the prescription and administration of
        pharmaceutical agents for therapeutic purposes, which
        examination was prepared and administered by a qualified and
        approved professional testing organization in accordance with
        section 812.1 of the act of April 9, 1929 (P.L.177, No.175),
        known as "The Administrative Code of 1929."
        (b)  In order to maintain such authority, the licensee shall,
     as part of the continuing education required for renewal of a
     license under this act, complete such additional study in the
     prescription and administration of pharmaceutical agents for
     therapeutic purposes.
        Section 5.  Sections 5, 6(c) and (h) and 7 heading, (a)
     introductory paragraph and (7), (b)(2) and (d) of the act,
     amended or added May 15, 1986 (P.L.186, No.58), are amended to
     read:
      Section 5.  Renewal of license.
        (a)  A person licensed by the board shall apply for renewal
     of such license by such methods as the board shall determine by
     regulation, provided that such renewal period shall not exceed
     two years.
        (b)  Beginning with the year [1982] 1998, a license shall not
     be renewed by the board unless the optometrist applying for
     renewal submits proof to the board that during the two calendar
     years immediately preceding his application he has
     satisfactorily completed a minimum of [24] 30 hours of
     continuing professional optometric education approved by the
     board[.] so long as a licensee who is certified in accordance
     with section 4.1 shall be required to complete a minimum of 30
     hours, at least six of which concern the prescription and
     administration of pharmaceutical agents for therapeutic
     purposes. No credit shall be given for any course in office
     management or practice building.
        (c)  Any licensee of this Commonwealth who is also licensed
     to practice optometry in any other state, territory or country
     shall report this information to the board on the biennial
     renewal application. Any disciplinary action taken in other
     states shall be reported to the board on the biennial renewal
     application or within 90 days of final disposition, whichever is
     sooner. Multiple licensure shall be noted on the licensee's
     record by the board, and such state, territory or country shall
     be notified by the board of any disciplinary action taken
     against said licensee in this Commonwealth.
        (d)  An optometrist who requests in writing to place his
     license on inactive status may reactivate his license after
     paying the required fees and showing proof of meeting the
     continuing education requirement for the biennial renewal period
     immediately preceding such request for reactivation. An
     optometrist who seeks to renew an inactive license shall file
     with the board an affidavit affirming that he has not practiced
     optometry in this Commonwealth during such period his license
     was inactive.
      Section 6.  Exemptions and exceptions.
        * * *
        (c)  The board may, upon written application and payment of
     the regular examination fee, issue a license without an
     examination[, other than clinical,] to any applicant who:
            (1)  is at least 21 years of age; and
            (2)  (i)  has passed a standard examination in optometry
            in any other state or all parts of the examination given
            by the National Board of Examiners in Optometry, provided
            that the standards of the other state or the National
            Board are equal to or exceed the standards of this
            Commonwealth; or
                (ii)  is licensed in another state and has practiced
            in that state for a minimum of four years immediately
            preceding application.
        * * *
        (h)  Nothing in this act shall prohibit any individual from
     fitting an appropriate contact lens for a specific intended
     wearer and the complete assisting of such wearer in the use of
     the contact lens [if the following conditions are met], provided
     that:
            (1)  The individual who fits the contact lens [has]
        successfully passed the examination administered by the
        National Contact Lens Examiners as of [the effective date of
        this act] July 14, 1986, and is currently certified by the
        National Contact Lens Examiners.
            (2)  The fitting is based on prescription of a licensed
        physician or optometrist.
            (3)  The wearer is informed, in writing, to return to the
        prescribing physician or optometrist for periodic evaluation
        during the fit, at intervals not to exceed three months or
        whenever the fitter feels professional judgment is needed.
            (4)  The individual who [has] passed the examination
        administered by the National Contact Lens Examiners as of
        [the effective date of this act submits] July 14, 1986,
        submitted evidence of such successful examination to the
        board [within 60 days] by September 12, 1986.
            (5)  The board shall compile and publish a list of [such]
        individuals who meet the requirements of this subsection and
        shall enforce the provisions of this subsection.
        * * *
      Section 7.  [Refusal, revocation or suspension of license.]
                    Reasons for refusal, suspension, revocation or
                    other corrective actions; powers of board and
                    actions authorized.
        (a)  The board shall have the power to refuse, revoke, limit
     or suspend a license or take other corrective action authorized
     hereunder against an optometrist licensed to practice optometry
     in this Commonwealth for any or all of the following reasons:
            * * *
            (7)  [Inability to practice optometry with reasonable
        skill and safety to patients by reason of incompetence,
        illness, drunkenness, excessive use of drugs, narcotics,
        chemicals or other type of material, or as a result of any
        mental or physical condition.] Being unable to practice the
        profession with reasonable skill and safety to patients by
        reason of illness, addiction to drugs or alcohol, having been
        convicted of a felonious act prohibited under the act of
        April 14, 1972 (P.L.233, No.64), known as "The Controlled
        Substance, Drug, Device and Cosmetic Act," or convicted of a
        felony relating to a controlled substance in a court of law
        of the United States or any other state, territory,
        possession or country, or if he or she is or shall become
        mentally incompetent. An applicant's statement on the
        application declaring the absence of a conviction shall be
        deemed satisfactory evidence of the absence of a conviction
        unless the board has some evidence to the contrary. In
        enforcing this paragraph, the board shall, upon probable
        cause, have authority to compel a practitioner to submit to a
        mental or physical examination by a physician or a
        psychologist approved by the board. Failure of a practitioner
        to submit to such an examination when directed by the board,
        unless such failure is due to circumstances beyond his or her
        control, shall constitute an admission of the allegations
        against him or her, consequent upon which a default and final
        order may be entered without the taking of testimony or
        presentation of evidence. A practitioner affected under this
        paragraph shall at reasonable intervals be afforded an
        opportunity to demonstrate that he or she can resume a
        competent practice of his or her profession with reasonable
        skill and safety to patients.
            * * *
        (b)  When the board finds that the license of a person may be
     refused, revoked or suspended the board may:
            * * *
            (2)  Administer a public [or private] reprimand.
            * * *
        (d)  A person may complain of a violation of the provisions
     of this act or the rules and regulations of the board by filing
     a written complaint with [the secretary of] the board. The board
     shall decide either to dismiss the case, issue an injunction, or
     hold a hearing in accordance with the general rules of
     administrative practice and procedure. If the person filing the
     complaint is a member of the board, he shall disqualify himself
     from participating as a member of the board in all procedures
     related to the complaint which he filed.
        * * *
        Section 6.  The act is amended by adding a section to read:
      Section 7.1.  Impaired professionals.
        (a)  The board, with the approval of the Commissioner of
     Professional and Occupational Affairs, shall appoint and fix the
     compensation of a professional consultant who is a licensee of
     the board, or such other professional as the board may
     determine, with education and experience in the identification,
     treatment and rehabilitation of persons with physical or mental
     impairments. Such consultant shall be accountable to the board
     and treatment programs, such as alcohol and drug treatment
     programs licensed by the Department of Health, psychological
     counseling and impaired professional support groups, which are
     approved by the board and which provide services to licensees
     under this act.
        (b)  The board may defer and ultimately dismiss any of the
     types of corrective action set forth in this act for an impaired
     professional so long as the professional is progressing
     satisfactorily in an approved treatment program, provided that
     the provisions of this subsection shall not apply to a
     professional convicted of a felonious act prohibited under the
     act of April 14, 1972 (P.L.233, No.64), known as "The Controlled
     Substance, Drug, Device and Cosmetic Act," or convicted of a
     felony relating to a controlled substance in a court of law of
     the United States or any other state, territory or country. An
     approved program provider shall, upon request, disclose to the
     consultant such information in its possession regarding an
     impaired professional in treatment which the program provider is
     not prohibited from disclosing by an act of this Commonwealth,
     another state or the United States. Such requirement of
     disclosure by an approved program provider shall apply in the
     case of impaired professionals who are the subject of a board
     investigation or disciplinary proceeding and impaired
     professionals who voluntarily enter a treatment program other
     than under the provisions of this section but fail to complete
     the program successfully or to adhere to an aftercare plan
     developed by the program provider.
        (c)  An impaired professional who enrolls in an approved
     treatment program shall enter into an agreement with the board
     under which the professional's license shall be suspended or
     revoked, but enforcement of that suspension or revocation may be
     stayed for the length of time the professional remains in the
     program and makes satisfactory progress, complies with the terms
     of the agreement and adheres to any limitations on his practice
     imposed by the board to protect the public. Failure to enter
     into such an agreement shall disqualify the professional from
     the impaired professional program and shall activate an
     immediate investigation and disciplinary proceeding by the
     board.
        (d)  If, in the opinion of the consultant after consultation
     with the provider, an impaired professional who is enrolled in
     an approved treatment program has not progressed satisfactorily,
     the consultant shall disclose to the board all information in
     his possession regarding said professional, and the board shall
     institute proceedings to determine if the stay of the
     enforcement of the suspension or revocation of the impaired
     professional's license shall be vacated.
        (e)  An approved program provider who makes disclosure
     pursuant to this section shall not be subject to civil liability
     for such disclosure or its consequences.
        (f)  Any hospital or health care facility, peer or colleague
     who has substantial evidence that a professional has an active
     addictive disease for which the professional is not receiving
     treatment, is diverting a controlled substance or is mentally or
     physically incompetent to carry out the duties of his or her
     license shall make or cause to be made a report to the board,
     provided that any person or facility which acts in a treatment
     capacity to an impaired professional in an approved treatment
     program is exempt from the mandatory reporting requirements of
     this subsection. Any person or facility that reports pursuant to
     this section in good faith and without malice shall be immune
     from any civil or criminal liability arising from such report.
     Failure to provide such report within a reasonable time from
     receipt of knowledge of impairment shall subject the person or
     facility to a fine not to exceed $1,000. The board shall levy
     this penalty only after affording the accused party the
     opportunity for a hearing as provided in 2 Pa.C.S. (relating to
     administrative law and procedure).
        Section 7.  Section 9 of the act, amended May 15, 1986
     (P.L.186, No.58), is amended to read:
      Section 9.  Fees and other moneys.
        (a)  The board shall have the power to fix or change fees for
     initial licensure, examination, biennial license renewal,
     verification of licensure or grades to other jurisdictions,
     initial and renewal certified copies of licenses, and biennial
     renewal of branch offices.
        (b)  Moneys collected under the provisions of this act shall
     be paid into [a designated account] the Professional Licensure
     Augmentation Account and disbursed according to law.
        (c)  All fees required under this act shall be fixed by the
     board by regulation and shall be subject to the act of June 25,
     1982 (P.L.633, No.181), known as the "Regulatory Review Act." If
     the revenues raised by fees, fines and civil penalties imposed
     pursuant to this act are not sufficient to meet expenditures
     over a two-year period, the board shall increase those fees by
     regulation so that the projected revenues will meet or exceed
     projected expenditures.
        (d)  If the Bureau of Professional and Occupational Affairs
     determines that the fees established by the board under
     subsection (c) are inadequate to meet the minimum enforcement
     efforts required by this act, then the bureau, after
     consultation with the board and subject to the "Regulatory
     Review Act," shall increase the fees by regulation in an amount
     that adequate revenues are raised to meet the required
     enforcement effort.
        [(e)  The fees established under this act shall be sufficient
     to enable the board to secure such investigatory and prosecutory
     staff as is necessary to pursue appropriate legal action against
     those persons engaged in the practice of optometry in
     Pennsylvania without being licensed as required by this act and
     against any person who violates any other provision of this
     act.]
        Section 8.  This act shall take effect immediately.

     APPROVED--The 30th day of October, A. D. 1996.

     THOMAS J. RIDGE