ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2752
(By Delegates Angotti, Kominar, Warner, J. Smith, Keener, Stemple
and Perdue)
[Passed April 14, 2001; in effect ninety days from passage.]
AN ACT to amend and reenact sections two, three, three-a, three-b,
four, five, six, seven, eight, nine and ten, article eight,
chapter thirty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
eleven, all relating to the board of optometry; removing
certain fees and providing they be established by legislative
rule; increasing criminal fines; providing for licensure by
endorsement; legislative rules; eliminating phrases no longer
applicable; updating archaic language; and providing for
continuation of the board.
Be it enacted by the Legislature of West Virginia:
That sections two, three, three-a, three-b, four, five, six, seven, eight, nine and ten, article eight, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, and that said article be further
amended by adding thereto a new section, designated section eleven,
all to read as follows:
ARTICLE 8. OPTOMETRISTS.
§30-8-2. Practice of optometry defined.
Any one or any combination of the following practices shall
constitute the practice of optometry:
(a) The examination of the human eye, with or without the use
of drugs, prescribable for the human eye which drugs may be used
for diagnostic or therapeutic purposes, for topical application to
the anterior segment of the human eye and, by any method other than
surgery, to diagnose, treat or refer for consultation or treatment
any abnormal condition of the human eye or its appendages;
(b) The employment without the use of surgery of any
instrument, device, method or diagnostic or therapeutic drug
intended for the purpose of investigating, examining, treating,
diagnosing, improving or correcting any visual defect or abnormal
condition of the human eye or its appendages;
(c) The prescribing, fitting, application, replacement,
duplication or alteration of lenses, prisms, contact lenses, orthoptics, vision training, vision rehabilitation, diagnostic or
therapeutic drugs, or the furnishing or providing of any prosthetic
device, or any other method other than surgery necessary to correct
or relieve any defects or abnormal conditions of the human eye or
its appendages.
(d) Nothing in this section shall be construed to permit an
optometrist to perform surgery, use drugs by injection or to use or
prescribe any drug for other than the specific purposes authorized
by this article.
§30-8-3. Board of optometry; duties; disposition of moneys
collected; compensation and expenses.
There shall be a state board of examiners in optometry, known
as the "West Virginia board of optometry," which shall consist of
five optometrists and two lay members, who shall be appointed by
the governor, by and with the advice and consent of the Senate.
Each optometric member of the board, at the time of his or her
appointment, shall have been a resident and a registered practicing
optometrist of this state for a period of not less than three years
immediately preceding his or her
appointment.
The optometric members of the board in office on the first day
of July, two thousand one, shall, unless sooner removed, continue
to serve until their successors have been appointed and have qualified. On or before the first day of July, two thousand one,
and annually thereafter, as their respective terms expire, the
governor shall appoint their successors so that one year he or she
shall appoint one member and in each of the two succeeding years he
or she
shall appoint two members, each for a term of three years
commencing on the first day of July. Any member shall be eligible
for reappointment.
All fees and other moneys collected by the board pursuant to
the provisions of this article shall be kept in a separate fund and
expended solely for the purpose of this article. The compensation
for the members of the board and all expenses incurred under this
article shall be paid from this special fund. No compensation or
expense incurred under this article shall be a charge against the
general funds of this state.
The board shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
which are not inconsistent with any other provision or section of
this article:
(a) For the proper performance of its duties;
(b) To govern the ethical practice of optometry for the
safety, protection and welfare of the public; and
(c) To provide for examinations, licensure requirements, continuing education requirements, fees, and to further effectuate
the provisions of this article, article one of this chapter, and
any other provisions set forth in state or federal law.
§30-8-3a. Registration of optometric corporations.
When one or more optometrists duly registered to practice
optometry in the state of West Virginia wish to form an optometric
corporation, such optometrist or optometrists shall file a written
application with the board of optometry, on a form prescribed by
the board, and shall furnish proof satisfactory to the board that
the signer is a duly registered optometrist, or if there be more
than one that all the signers of such application are such duly
registered optometrists. A fee as determined by legislative rule
shall accompany each such application, no part of which may be
refundable.
The board shall notify the secretary of state that a
certificate of authorization has been issued to the individual or
individuals signing such application, to form an optometric
corporation.
When the secretary of state receives notification from the
board of optometry that an individual or individuals, duly
registered to practice optometry in the state of West Virginia have
been issued a certificate of authorization, he or she
shall attach such authorization to the agreement of incorporation and upon
compliance by the corporation with the applicable provisions of
chapter thirty-one of this code, shall notify the incorporators
that such corporation, through a duly registered optometrist or
optometrists, may engage in the practice of optometry.
§30-8-3b. Practice of optometry by optometric corporations;
limitations; optometrist-patient relationship not
affected; biennial registration; penalty;
severability.
(a) An optometric corporation may practice optometry only
through an individual optometrist or optometrists duly registered
to practice optometry in the state of West Virginia, but such
optometrist or optometrists may be employees rather than
shareholders of such corporation, and nothing herein contained
shall be construed to require a license or other legal
authorization of any individual employed by such corporation to
perform services for which no license or other legal authorization
is otherwise required. Nothing contained in sections three-a and
ten and this section of this article is meant or intended to change
in any way the rights, duties, privileges, responsibilities and
liabilities incident to the optometrist-patient relationship nor is
it meant or intended to change in any way the personal character of the optometrist- patient relationship. A corporation holding such
certificate of authorization shall register biennially, on or
before the thirtieth day of June, on a form prescribed by the board
of optometry and shall pay a biennial registration fee as
determined by legislative rule.
(b) An optometric corporation holding a certificate of
authorization shall cease to engage in the practice of optometry
upon being notified by the board of optometry that any of its
shareholders is no longer a duly registered optometrist in this
state, or when any shares of such corporation have been sold or
disposed of to a person who is not a duly registered optometrist:
Provided, That the personal representative of a deceased
shareholder shall have a period, not to exceed twelve months from
the date of such shareholder's death, to dispose of such shares;
but nothing contained herein shall be construed as affecting the
existence of such corporation or its right to continue to operate
for all lawful purposes other than the practice of optometry.
(c) No corporation shall practice optometry, or any of its
branches, or hold itself out as being capable of doing so, without
a certificate from the board, or after its certificate has been
revoked, or if suspended, during the term of such suspension. A
certificate signed by the secretary of the board of optometry to which is affixed the official seal of the board to the effect that
it appears from the records of the board that no such certificate
to practice optometry or any of its branches in the state has been
issued to any such corporation specified therein or that such
certificate has been revoked or suspended shall be admissible in
evidence in all courts of this state and shall be prima facie
evidence of the facts stated therein.
(d) Any officer, shareholder or employee of such corporation
who participates in a violation of any provision of this section
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one thousand dollars nor more than
five thousand dollars.
§30-8-4. Registration prerequisite to practice of optometry;
exceptions.
No person shall practice or offer to practice optometry in
this state without first applying for and obtaining a certificate
of registration for such purpose from the West Virginia board of
optometry; but the following persons, firms and corporations are
exempt from the operation of this article, except as hereinafter
provided:
(a) Persons authorized under the laws of this state to
practice medicine and surgery or osteopathy;
(b) Persons, firms and corporations who sell eyeglasses or
spectacles in a store, shop or other permanently established place
of business on prescriptions from persons authorized under the laws
of this state to practice either optometry or medicine and surgery;
(c) Persons, firms and corporations who manufacture or deal in
eyeglasses or spectacles in a store, shop or other permanently
established place of business, and who neither practice nor attempt
to practice optometry.
§30-8-5. Qualifications of applicant for registration;
examination; duties of board as to examinations and
certifications; education necessary for use of
pharmaceutical agents.
(a) An applicant for registration shall present satisfactory
evidence that he or she
is at least twenty-one years of age, of
good moral character and has graduated from a school or college of
optometry accepted by said board. No school or college of
optometry shall be accepted by the West Virginia board of optometry
unless at first it has been accredited by a regional or
professional accreditation organization which is recognized by the
national commission on accreditation or the United States
commission of education. Each applicant shall submit to and be
examined in all phases of optometry as is provided by a school or college of optometry.
(b) The West Virginia board of optometry shall be responsible
to determine the educational training received by the applicant
from the schools and colleges of optometry, the educational
qualifications of each applicant and the administering of the
examination and certification of each applicant commensurate with
his or her
education. No optometrist shall be registered or
certified to practice optometry in the state of West Virginia in
any area that is beyond the scope of his or her
educational
training as determined by the West Virginia board of optometry:
Provided, That any optometrist presently registered in the state of
West Virginia and who desires to employ the use of pharmaceutical
agents must submit to the West Virginia board of optometry evidence
of satisfactory completion of all necessary educational
requirements as made mandatory by the West Virginia board of
optometry: Provided, however, That the West Virginia board of
optometry shall provide for continuing educational requirements to
be completed from time to time by all optometrists desiring to
employ the use of pharmaceutical agents.
(c) The board may propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code, to provide for licensure by endorsement for applicants licensed by
other states whose licensure requirements are equivalent to those
of this state, and who meet the requirements as set forth in this
article and in the legislative rules of the board.
§30-8-6. Certificate of registration or exemption shall be
displayed.
Every person practicing optometry shall display his or her
certificate of registration in a conspicuous place in the principal
office wherein he or she
practices optometry and, whenever
required, shall exhibit such certificate to the board of examiners
or its authorized representatives.
§30-8-7. Biennial renewal of registration; restoration of expired
certificate.
Every registered optometrist who desires to continue in active
practice or service shall, biennially, on or before the first day
of August, of that year, renew his or her
certificate of
registration and pay a biennial renewal fee as determined by
legislative rule. Every certificate of registration which has not
been renewed shall expire on the first day of August of that year.
A registered optometrist whose certificate of registration has
expired for three years or less may have the same restored only
upon payment of all required renewal and late fees for each lapsed year, and submit proof of accumulated continuing education hours
for each year that has lapsed.
§30-8-8. Refusal to issue, suspension or revocation of
certificate; false and deceptive advertising.
The board may either refuse to issue, or may refuse to renew,
or may suspend or revoke any certificate of registration for any
one, or any combination, of the following causes: Violation of a
rule or regulation governing the ethical practice of optometry
promulgated by the board under the authority granted by this
article; conviction of a felony, as shown by a certified copy of
the record of the court wherein such conviction was had; the
obtaining of, or the attempt to obtain, a certificate of
registration, or practice in the profession of optometry, or money,
or any other thing of value, by fraudulent misrepresentation; gross
malpractice; continued practice by a person knowingly having an
infectious disease; alcohol or substance abuse; advertising,
practicing, or attempting to practice under a name other than one's
own; advertising by means of knowingly false or deceptive
statements. All advertising, whether by means of newspapers, or in
any manner, whatsoever, of the following statements, or statements
of similar import, that are "false and deceptive" within the
meaning of this law, shall be prohibited. False and deceptive advertising shall include, but not be limited to the following:
(a) Advertising "free examination of eyes," or words of similar
import and meaning; (b) advertising frames or mountings for
glasses, contact lenses, or other optical devices which does not
accurately describe the same in all its component parts.
§30-8-9. Offenses; penalties; jurisdiction of magistrates.
Each of the following shall constitute a misdemeanor
punishable, upon conviction, for the first offense, by a fine of
not less than one thousand nor more than five thousand dollars and,
upon conviction for a second or subsequent offense, by a fine of
not less than five thousand nor more than ten thousand dollars, or
by imprisonment for not less than thirty nor more than ninety days,
or by both such fine and imprisonment, at the discretion of the
court: The practice of, or an attempt to practice, optometry,
without a certificate of registration as a registered optometrist,
except as hereinbefore provided; permitting any person in one's
employ, supervision or control, to practice optometry, unless such
person has a certificate of registration as a registered
optometrist in the state of West Virginia when such certificate is
required by this article; the obtaining of, or an attempt to
obtain, a certificate of registration, or practice in the
profession, or money, or anything of value, by fraudulent misrepresentation; the making of any willfully false oath or
affirmation, whenever an oath or affirmation is required by this
article; the violation of the provisions of section six of this
article.
§30-8-10. Unlawful practice of optometry by or for a corporation,
etc.; practice in connection with commercial or
mercantile establishment; penalties; injunctions.
Except as provided in sections three-a and three-b of this
article, no corporation or voluntary association shall practice, or
assume to practice, or in any manner hold itself out to the public
as being entitled to practice the profession of optometry, or
advertise the title of optometrist in such manner as to convey the
impression to the public that it is entitled to practice optometry,
or furnish optometric advice and services, or advertise that,
either alone or together with or by or through any person, whether
a duly registered and licensed optometrist or not, it has, owns,
conducts or maintains an office or place for practice of optometry.
Except as provided in sections three-a and three-b of this article,
no duly registered and licensed optometrist shall associate himself
or herself with any corporation or voluntary association for the
practice of optometry, or in any manner practice such profession,
on a salary or commission basis, for any such corporation or voluntary association. Any corporation or voluntary association
violating any of the provisions of this section, or any officer,
trustee, director, agent, or employee of such corporation or
voluntary association who, either directly or indirectly, engages
in any of the acts herein prohibited, or assists such corporation
or voluntary association to do such prohibited acts, shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one thousand nor more than five thousand
dollars. The fact that any such officer, trustee, director, agent
or employee shall be a duly registered and licensed optometrist
shall not be held to permit or allow any such corporation or
voluntary association to do the acts prohibited herein, nor shall
such fact be a defense upon the trial of any of the persons
hereinbefore mentioned for a violation of this section. Any duly
registered and licensed optometrist who shall violate the
provisions of this section shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars, and each and every day
such violation continues shall constitute a separate offense; and
in addition to the foregoing penalties, such offending optometrist
shall have his or her license suspended for a period of one year by
the court in which such conviction is had: Provided, That this section shall not apply to a partnership of two or more duly
registered and licensed optometrists who practice under their own
names.
It shall be unlawful for any registered optometrist to
practice his or her profession as an employee, lessee, or sublessee
of any commercial or mercantile establishment or to practice his or
her profession in connection therewith, or to advertise either in
person or through any commercial or mercantile establishment that
he or she is a duly registered practitioner, and is practicing or
will practice optometry as an employee, lessee, or sublessee of any
such commercial or mercantile establishment or in connection
therewith. But nothing herein shall be construed to prohibit or
prevent the rendering of professional services to the officers and
employees of any person, firm or corporation by an optometrist,
whether or not the compensation for such services is paid by the
officers and employees, or by the employer, or jointly by all or
any of them. Any person violating this provision shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than one thousand nor more than five thousand dollars, and
each and every day such violation continues shall constitute a
separate offense.
The circuit court of any county in which the violation occurred shall have jurisdiction to restrain by injunction the
violation of any of the provisions of this article.
§30-8-11. Continuation of the board.
The West Virginia board of optometry shall continue to exist
until the first day of July, two thousand seven, pursuant to the
provisions of article ten, chapter four of this code, unless sooner
terminated, continued or reestablished pursuant to the provisions
of that article.
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