HBA-JRA H.B. 2335 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2335 By: Maxey Public Health 3/12/1999 Introduced BACKGROUND AND PURPOSE Under current law, a person providing ophthalmic services or products in Texas can be a physician, an optometrist, a person supervised by a physician or optometrist, a person registered under the Opticians' Registry Act, or any other person. The Contact Lens Prescription Act, passed during the 75th Regular Session, requires a person dispensing contact lenses to obtain a contact lens dispensing permit, but there are no licensing requirements for a person other than a physician, an optometrist, a person supervised by a physician or optometrist, or a person registered under the Opticians' Registry Act to provide ophthalmic services or products. H.B. 2335 amends the Opticians' Registry Act to require a person other than a physician, an optometrist, a person supervised by a physician or optometrist, or a person registered under the Optician's Registry Act providing ophthalmic services or products to be registered as either a spectacle dispenser or a contact lens dispenser. Additionally, this bill eliminates the Contact Lens Dispensing Permit Program and mandates the release of spectacle and contact lens prescriptions to patients. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 1 (Sections 7, 8, 12, and 13, Article 4551-1, V.T.C.S. (Opticians' Registry Act)) and that rulemaking authority previously delegated to the Texas Board of Health is modified in SECTION 1 (Sections 8 and 18, Article 4551-1, V.T.C.S. (Opticians' Registry Act)) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 4551-1, V.T.C.S. (Opticians' Registry Act), as follows: Sec. 1. SHORT TITLE. Makes no change. Sec. 2. PURPOSE; CONSTRUCTION. (a) Establishes that the purpose of this Act is to safeguard public health, safety, and welfare by providing for the registration of certain providers of ophthalmic goods and services. Deletes language relating to providing a means for the public to identify providers of ophthalmic dispensing services and products that meet minimum standards of competence and a certification system for dispensing opticians. (b) Establishes that the purpose of this Act is to assure that the consumer can purchase such items from the provider of the consumer's choice by providing for the release of prescriptions for spectacles and contact lenses by the examining physician or optometrist. (c) Makes changes conforming to Section 4 of this Act and nonsubstantive changes. Sec. 3. DEFINITIONS. Adds to the definitions under this section by defining "committee," "contact lens duplication," "contact lens fitting," "directed or approved," "dispensing of opticianry," "disposable contact lenses," "optometrist," "person," "pharmacist," "physician," "registered contact lens dispenser," "registered contact lens duplication establishment," "registered contact lens technician," "registered dispensing optician," "registered ophthalmic assistant," "registered ophthalmic dispenser," "registered optician," "registered optometric assistant," "registered spectacle dispenser," "supervision," and "therapeutic optometrist." Redefines "contact lens dispensing," "contact lens prescription," "spectacle dispensing," and "spectacle prescription." Deletes definitions of "dispensing optician" and "ophthalmic dispenser." Redesignates existing Subdivisions (2), (3), (4) and (7) to (3), (6), (8), and (25), respectively. Makes conforming changes. Sec. 4. PROHIBITED ACTS. (a) Prohibits a person from representing to the public that the person is a "Registered Optician," "Registered Ophthalmic Dispenser," "Registered Contact Lens Technician," "Registered Contact Lens Dispenser," "Registered Ophthalmic Assistant," "Registered Ophthalmic Technician," "Registered Ophthalmic Medical Technologist," or a "Registered Optometric Assistant", among other professional titles, unless the person is appropriately registered with the Texas Board of Health (board) and complies with this Act. (b) Makes conforming and nonsubstantive changes. (c) Makes conforming and nonsubstantive changes. (d) Makes conforming and nonsubstantive changes. (e) Prohibits unregistered persons from engaging in the dispensing of opticianry, spectacle dispensing, contact lens fitting, or contact lens dispensing, unless acting under the supervision of specified registered persons, except as authorized under Section 20 (Application of Act) or 21 (Physician's Prescriptions; Delegation) of this Act or Section 5.17 (Exceptions), Article 4552-5.17, V.T.C.S. (Texas Optometry Act). (f) Prohibits a corporation or business entity from engaging in providing duplicate contact lenses directly to the public without being a registered contact lens duplication establishment unless the work is performed by or under the supervision of specified registered persons. (g) Prohibits a contact lens prescription from containing and a physician, optometrist, or therapeutic optometrist from requiring a patient to sign a form or notice that waives or disclaims the liability of the physician, optometrist, or therapeutic optometrist for the accuracy of the eye examination or of the contact lens prescription provided. (h) Provides that a physician, optometrist, or therapeutic optometrist is not liable for later use of a contact lens prescription by a patient if the physician, optometrist, or therapeutic optometrist does not reexamine the patient and the patient is no longer a proper candidate for the contact lens or lenses prescribed. Sec. 5. MANDATORY RELEASE OF CONTACT LENS PRESCRIPTION. (a) Requires each physician, optometrist, or therapeutic optometrist who performs an eye examination and fits a patient for contact lenses to, on request, prepare and give a contact lens prescription to the patient for no additional charge. Authorizes a physician, optometrist, or therapeutic optometrist to exclude categories of contact lenses for clinical reasons. (b) Requires a physician, optometrist, or therapeutic optometrist to prepare and give the contact lens prescription to the patient when the parameters of the prescription are determined if a patient requests a contact lens prescription during an initial or annual examination. (c) Authorizes the patient to request the patient's contact lens prescription at any time during which the prescription is valid and requires the physician, optometrist, or therapeutic optometrist to provide the patient with the prescription. Authorizes the physician, optometrist, or therapeutic optometrist to charge the cost of delivery to the patient if the patient requests that the prescription be delivered. (d) Authorizes a physician, optometrist, or therapeutic optometrist to refuse to give a contact lens prescription to a patient if it would damage or potentially harm the patient's ocular health; the patient has not met certain financial obligations to the physician, optometrist, or therapeutic optometrist; or if the request is made more than a year after the patient's last eye examination. (e) Provides that Subsection (d) of this section does not prohibit a physician, optometrist, or therapeutic optometrist from giving a patient the patient's contact lens prescription. (f) Prohibits a physician, optometrist, or therapeutic optometrist from requiring a patient to purchase contact lenses or other ophthalmic goods from any specific ophthalmic dispenser as a condition for an examination, a contact lens fitting, or a contact lens prescription. (g) Prohibits a physician, optometrist, or therapeutic optometrist from issuing a contact lens prescription that expires less than a year after determination of the patient's prescription parameters unless a shorter prescription period is warranted by the patient's ocular health or by potential harm to the patient's ocular health. Authorizes a physician, optometrist, or therapeutic optometrist to extend the expiration date without completing another eye examination. (h) Provides that a physician, optometrist, or therapeutic optometrist must give the patient a verbal explanation and maintain a written explanation of the reason in the patient's record if a physician, optometrist, or therapeutic optometrist refuses to give the patient the patient's contact lens prescription for a reason permitted under Subsection (d) of this section or writes a prescription for a period of less than one year. Sec. 6. MANDATORY RELEASE OF SPECTACLE PRESCRIPTION. (a) Prohibits a physician, optometrist, or therapeutic optometrist from failing to provide to a patient a copy of the patient's prescription immediately after completing an eye examination; requiring the patient to agree to purchase any ophthalmic goods from the physician, optometrist, or therapeutic optometrist as a condition for receiving an eye examination; charging a patient a fee in addition to the examination fee as a condition for releasing a prescription to the patient; or placing on a prescription, requiring a patient to sign, or delivering to a patient a form or notice that waives or disclaims the liability of the physician, optometrist, or therapeutic optometrist for the accuracy of the eye examination or ophthalmic goods and services dispensed by another seller. (b) Authorizes a physician, optometrist, or therapeutic optometrist to refuse to give a patient a copy of the patient's prescription until the patient has paid for an eye examination only if immediate payment would have been required had no ophthalmic goods been required. (c) Authorizes a physician, optometrist, or therapeutic optometrist to charge an additional fee for verifying ophthalmic goods dispensed by another seller at the time the verification is performed. (d) Provides that a physician, optometrist, or therapeutic optometrist is not liable for ophthalmic goods or services dispensed by another seller. Sec. 7. REGULATION OF PERSONS FILLING CONTACT LENS PRESCRIPTIONS. (a) Prohibits a person or entity from filling a contact lens prescription or selling, delivering, or dispensing contact lenses in this state except as provided by this Act. (b) Prohibits a person, other than the prescribing physician, optometrist, or therapeutic optometrist, from selling, delivering, or dispensing contact lenses to a patient or other consumer in this state except as provided by this Act. (c) Authorizes certain registered persons to sell, deliver, or dispense corrective, cosmetic, or therapeutic contact lenses. (d) Prohibits the modification of a contact lens prescription except as provided by this Act. (e) Provides that an instruction by a physician to fit contact lenses or other language indicating contact lenses have been prescribed is considered direction or approval for the fitting of contact lenses by a registered contact lens technician. Requires a registered contact lens technician to prepare and give to the patient a copy of the contact lens specification upon request. Authorizes a registered contact lens technician to refuse to give the patient a copy of the specification until the patient has paid for the contact lens fitting services. (f) Requires a person who dispenses contact lenses from a contact lens prescription to fill the prescription accurately without modification and prohibits the person from filling an expired prescription. (g) Sets forth the recordkeeping requirements for filling a written contact lens prescription with fewer than the total number of lenses authorized. (h) Authorizes a physician, optometrist, or therapeutic optometrist to telephone or fax a contact lens prescription to a person authorized to fill contact lenses if a patient needs an emergency refill of a contact lens prescription. Sets forth the recordkeeping requirements for an emergency prescription refill. (i) Requires a physician, optometrist, or therapeutic optometrist to authorize a two-month extension of a patient's contact lens prescription at least once on request by the patient. Authorizes the extension to be made in accordance with the provisions for emergency refills in Subsection (h) of this section. (j) Authorizes the board to adopt rules that permit a contact lens prescription required to be maintained under this Act to be scanned into a computer and the original paper prescription destroyed. Sec. 8. New title: DUTIES OF BOARD; ADVISORY COMMITTEE. Redesignated from existing Section 5. (a) Requires the board to adopt substantive and procedural rules relating to the circumstances requiring immediate referral of a patient to a physician, optometrist, or therapeutic optometrist, and the preparation of informational materials regarding routine examinations for the early diagnosis of ocular disease. Makes conforming changes. (b) Requires the board to prepare and provide to the public and appropriate state agencies information regarding the release of contact lens prescriptions. Authorizes the board to adopt rules as necessary to implement this subsection. (c) Makes no change. (d) Requires the board to appoint a nine-member advisory committee to be known as the Opticians' Registry Advisory Committee (committee). Requires the members to be appointed from the different geographical areas of the state. (e) Sets forth the composition of the committee. (f) Requires the committee to annually elect a presiding officer and assistant presiding officer. (g) Provides that a committee member is not entitled to compensation, but is entitled to a per diem and a transportation allowance. (h) Provides that members serve staggered terms of six years until the expiration date of the term to which the member was appointed or until the member's successor has qualified. Prohibits a member from serving more than two consecutive terms. Sec. 9. POWERS AND DUTIES OF DEPARTMENT. Redesignated from existing Section 6. Sec. 10. EXAMINATIONS. Redesignated from existing Section 7. Makes conforming changes. Sec. 11. New title: CERTIFICATE OF REGISTRATION AS A REGISTERED DISPENSING OPTICIAN OR REGISTERED CONTACT LENS TECHNICIAN. Redesignated from existing Section 8. Makes conforming changes. Sec. 12. CERTIFICATE OF REGISTRATION AS A REGISTERED SPECTACLE DISPENSER OR REGISTERED CONTACT LENS DISPENSER. (a) Provides that a person must be registered under this Act as a registered spectacle dispenser before dispensing spectacles in this state, unless the person is physician, optometrist, therapeutic optometrist, or a registered dispensing optician. (b) Provides that a person must be registered under this Act as a registered contact lens dispenser before dispensing contact lenses in this state, unless the person is physician, optometrist, therapeutic optometrist, pharmacist, or a registered contact lens technician. (c) Requires TDH to issue a certificate of registration under this section to an applicant who agrees to federal laws and regulations regarding the sale, delivery, or dispensing of spectacles or contact lenses, has not had a registration revoked for cause in the previous two years, provides TDH with the trade names and addresses of all locations in which the applicant intends to conduct business and any other information TDH requires, and pays a registration fee. (d) Prohibits TDH from requiring an applicant for renewal of a certificate of registration to provide more information than is required for issuance of an original certificate. (e) Prohibits the board from requiring more than 10 classroom hours of training as a prerequisite to registration. (f) Authorizes a person to qualify and be registered in more than one category. (g) Requires a person issued a certificate of registration by TDH to display it as specified by board rule. (h) Provides that a certificate of registration is the property of TDH and must be surrendered on demand. Sec. 13. CERTIFICATE OF REGISTRATION AS A REGISTERED OPHTHALMIC ASSISTANT, REGISTERED OPHTHALMIC TECHNICIAN, REGISTERED OPHTHALMIC MEDICAL TECHNOLOGIST, OR REGISTERED OPTOMETRIC ASSISTANT. Requires TDH to issue a certificate of registration as a registered ophthalmic assistant, registered ophthalmic technician, registered ophthalmic medical technologist, or registered optometric assistant to each applicant who presents evidence satisfactory to TDH that the person has qualified for registration. Prohibits the board from requiring more than 30 classroom hours of training as a prerequisite to registration. Authorizes a person to qualify and be registered in more than one category. Requires a person issued a certificate of registration by TDH to display it as specified by board rule. Provides that a certificate of registration is the property of TDH and must be surrendered on demand. Sec. 14. CERTIFICATE OF REGISTRATION AS A REGISTERED CONTACT LENS DUPLICATION ESTABLISHMENT. (a) Provides that a corporation or other business entity must be registered under this Act as a registered contact lens duplication establishment at each location at which the service is provided before providing contact lens duplication directly to the public. (b) Requires TDH to issue a certificate of registration under this section to an applicant who agrees to federal laws and regulations regarding the sale, delivery, or dispensing of contact lenses, has not had a registration revoked for cause in the previous two years, provides TDH with the trade names and addresses of all locations in which the applicant intends to conduct business and any other information TDH requires, and pays a registration fee. (c) Prohibits TDH from requiring an applicant for renewal of a certificate of registration to provide more information than is required for issuance of an original certificate. Sec. 15. RENEWAL OF REGISTRATION. Prohibits the board from requiring classroom hours of continuing education to renew a certificate of registration as a contact lens duplication establishment. Redesignated from existing Section 9. Sec. 16. ENFORCEMENT; PENALTY. Provides that TDH is responsible for enforcing this Act with regard to a violation of this Act by a person registered under this Act. Provides that the Texas State Board of Medical Examiners is responsible for enforcing this Act with regard to a violation of this Act by a physician and that such a violation is considered a violation of Article 4495b, V.T.C.S. (Medical Practice Act). Provides that the Texas Optometry Board is responsible for enforcing this Act with regard to a violation of this Act by an optometrist or a therapeutic optometrist and that such a violation is considered a violation of Article 4452-1.01 et seq., V.T.C.S. (Texas Optometry Act). Provides that the Texas State Board of Pharmacy is responsible for enforcing this Act with regard to a violation of this Act by a pharmacist and that such a violation is considered a violation of Article 4542a-1, V.T.C.S. (Texas Pharmacy Act). Redesignated from existing Section 10. Makes conforming changes. Sec. 17. ADMINISTRATIVE PENALTY. Provides that each prescription filled in violation of this Act is considered a separate violation. Redesignated from existing Section 10A. Sec. 18. FEES; FUND. Deletes the maximum amounts for fees the board, by rule, is required to prescribe to administer this Act. Redesignated from existing Section 11. Sec. 19. DENIAL, SUSPENSION, REVOCATION, AND PROBATION. Provides that a hearing on an application that is denied, suspended, or revoked is governed by department rules for a contested hearing and Chapter 2001 (Administrative Procedure Act), Government Code, rather than Article 6252 13a, V.T.C.S. (Administrative Procedure and Texas Register Act). Redesignated from existing Section 12. Sec. 20. APPLICATION OF ACT. Provides that an employee of a physician, optometrist, therapeutic optometrist, or pharmacist is not required to be registered under this Act if the employee performs contact lens dispensing services under the direct supervision and control of the physician, optometrist, therapeutic optometrist, or pharmacist. Provides that this Act does not prevent an unregistered person from selling ready-to-wear spectacles or eyeglasses as merchandise at retail or prevent an unregistered person from making simple repairs to spectacles. Redesignated from existing Section 13. Makes conforming changes. Sec. 21. PHYSICIAN'S PRESCRIPTIONS; DELEGATION. Provides that an instruction by a physician to fit for contacts or other language indicating contact lenses is considered direction or approval for the fitting of contact lenses by a registered contact lens technician. Redesignated from existing Section 14. Makes conforming and nonsubstantive changes. SECTION 2. Amends Section 5.17(d), Article 4552-5.17, V.T.C.S. (Texas Optometry Act), to make conforming changes. SECTION 3. Amends Section 5.21(e), Article 4552-5.21, V.T.C.S. (Texas Optometry Act), to provide that this section does not affect the right of a patient under Article 4551-1, V.T.C.S. (Optician's Registry Act) , rather than the Texas Contact Lens Prescription Act, to have access to the patient's contact lens prescription. SECTION 4. Repealer: Article 4552-A, V.T.C.S. (Texas Contact Lens Prescription Act). SECTION 5. (a) Effective date: September 1, 1999. (b) Requires TDH to issue a person registered as a spectacle dispenser immediately before the effective date of this Act under Article 4551-1, V.T.C.S. (Opticians' Registry Act), a certificate of registration as a registered dispensing optician with the same registration number and expiration date as the person's previous certificate of registration. (c) Entitles a person who has been actively engaged in the dispensing of opticianry as defined by Article 4551-1, V.T.C.S. (Opticians' Registry Act), as amended by this Act, since September 1, 1997, to a certificate of registration as a registered dispensing optician without examination if the person applies to TDH before August 31, 2000, and pays the registration fee. (d) Entitles a person who immediately before the effective date of this Act was actively engaged in spectacle dispensing as defined by Article 4551-1, V.T.C.S. (Opticians' Registry Act), as amended by this Act, to a certificate of registration as a registered spectacle dispenser if the person applies to TDH before August 31, 2000, and pays the registration fee. (e) Requires TDH to issue to a person registered as a registered contact lens dispenser immediately before the effective date of this Act under Article 4551-1, V.T.C.S. (Opticians' Registry Act), a certificate of registration as a registered contact lens technician with the same registration number and expiration date as the person's previous certificate of registration. (f) Entitles a person who has been actively engaged in the contact lens fitting as defined by Article 4551-1, V.T.C.S. (Opticians' Registry Act), as amended by this Act, since September 1, 1995, to a certificate of registration as a registered contact lens technician without examination if the person applies to TDH before August 31, 2000, and pays the registration fee. (g) Requires TDH to issue to a person holding a contact lens dispensing permit under Article 4552-A, V.T.C.S. (Texas Contact Lens Prescription Act), immediately before the effective date of this Act a certificate of registration as a registered contact lens dispenser with the same expiration date as the permit. (h) Entitles a person who immediately before the effective date of this Act was actively engaged in contact lens dispensing as defined by Article 4551-1, V.T.C.S. (Opticians' Registry Act), to a certificate of registration as a registered contact lens dispenser if the person applies to TDH before August 31, 2000, and pays the registration fee. (i) Requires TDH to appoint the initial members of the Opticians' Registry Advisory Committee as soon possible on or after the effective date of this Act. Requires the terms of the initial members of the committee to be determined by lot, with the terms of three members expiring February 28, 2001, the terms of three members expiring February 28, 2003, and the terms of three members expiring February 28, 2005. SECTION 6. Emergency clause.