Senate Bill No. 260
(By Senator Bowman)
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[Introduced March 1, 2001; referred to the Committee on Health
and Human Resources.]
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A BILL to repeal section two-a, article eight, chapter thirty of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections two,
two-b, three, three-a, three-b, four, five, six, seven, eight,
nine and ten of said article; and to further amend said
article by adding thereto a new section, designated section
six-a, all relating to the board of optometry; removing
certain fees and providing they be established by legislative
rule; increasing criminal fines; providing licensure by
endorsement; eliminating phrases no longer applicable; and
updating archaic language.
Be it enacted by the Legislature of West Virginia:
That section two-a, article eight, chapter thirty of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that sections two, two-b, three, three-a, three-b,
four, five, six, seven, eight, nine and ten of said article be
amended and reenacted; and that said article be further amended by
adding thereto a new section, designated section six-a, 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 only and, by any method other
than surgery, to diagnose, to treat or to 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 for
topical application to the anterior segment of the human eye
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, and application, or the
replacement, or duplication or alteration of lenses, prisms,
contact lenses, orthoptics, vision training, vision rehabilitation,
diagnostic or therapeutic drugs, for topical application to the
anterior segment of the human eye 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.
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 section.
(c) Notwithstanding any provision of this section, the board
of optometry may grant qualified optometrists prescriptive
authority for oral antibiotics, oral nonsteroidal anti-inflammatory
drugs and oral carbonic anhydrase inhibitors.
§30-8-2b. Expanded prescriptive authority.
Notwithstanding the provisions of section two of this article,
on or before the thirty-first day of December, one thousand nine hundred ninety-seven, the board of optometry shall propose rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code, defining a
certification process and drug formulary which is authorized by
this section, except that no emergency rules may be proposed. The
board shall provide a formulary classifying those categories of
oral drugs rational to the diagnosis and treatment of conditions or
diseases of the human eye and its appendages, which may be
prescribed by optometrists from Schedules III, IV and V of the
Uniform Controlled Substances Act, article two, chapter sixty-a of
this code. The board shall consult with other appropriate boards,
including the board of pharmacy, in the development of the
formulary. The rules shall further provide for individual
certification of optometrists for this expanded scope of
prescriptive authority. The rules shall provide standards for
education and training determined by the board to be conditions
precedent to individual certification authorizing an optometrist to
prescribe drugs excluded pursuant to the provisions of section two
of this article and included in a drug formulary to be adopted by
the board; procedures for certification by the board of education
and training courses; procedure standards for certification and recertification of individual optometrists for an expanded scope of
practice prescriptive authority, which shall include a continuing
education requirement; administrative fees necessary for the
certification and recertification; procedures and standards for
certification and training courses; procedures and standards for
determining successful completion of education and training; and
standards to ensure adequate insurance coverage, as well as
compliance with the provisions of this section.
§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, 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 or more immediately
preceding his or her appointment.
The optometric members of the board in office on the first day
of July, one, one thousand nine hundred sixty-seven 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, one thousand nine hundred sixty-seven 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. No part of this
special fund shall revert to the general funds of this state. 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 make necessary rules, and regulations subject
to the provisions of 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 govern the time, place and manner of conducting
examinations in optometry, and the manner and form in which
applicants for such examination shall be filed.
§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 of twenty-five dollars as
determined by legislative rule shall accompany each such
application, no part of which shall may be returnable refundable.
If the board finds that the signer is a duly registered
optometrist, or if there be more than one that all of the signers
of such application are such duly registered optometrists, 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 an annual a biennial registration fee of
fifty dollars 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 more less than one thousand dollars nor more
than five thousand dollars.
(e) If any provision of section three-a or this section of
this article be held to be invalid, such invalidity shall not
affect the other provisions of said sections, and to this end the
provisions of said sections are severable.
§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 who have heretofore been registered as
optometrists in this state, or who were engaged in the practice of
optometry in this state before the passage of any law by this state
regulating such practice, and who have heretofore received from the
board of examiners certificates of exemption from examination;
(b) (a) Persons authorized under the laws of this state to
practice medicine and surgery or osteopathy;
(c) (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;
(d) (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.
An applicant for registration shall present satisfactory
evidence that he or she is at least eighteen twenty-one years of
age, of good moral character and temperate habits, and has
graduated from a high school or secondary school, or has completed
an equivalent course of study approved by the West Virginia board
of optometry, has satisfactorily completed all preoptometry or
premedical college requirements and has graduated from a school or
college of optometry approved accepted by said board. No school
or college of optometry shall be approved 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 the
a school or college of optometry. and shall include, but not be
limited to, anatomy and physiology of the human eye, the use of
instruments such as the ophthalmoscope, retinoscope, tonometer, slit lamp biomicroscope, the general laws of optics and refraction,
general and ocular pharmacology, general and ocular pathology and
other such subjects or instrumentation as the board of optometry
may deem necessary
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 further, 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
§30-8-6. Certificate of registration or exemption shall be
displayed.
Every person practicing optometry shall display his or her
certificate of registration or exemption 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. And whenever
practicing the profession of optometry outside of or away from said
office or place of business, he shall deliver to each customer or
person so fitted with glasses a bill of purchase which shall
contain his signature, home post-office address, and the number of
his certificate of registration or exemption, together with a
specification of the lenses furnished
§30-8-6a. Licensure by endorsement.
(a) Applicants for licensure by endorsement must meet the
following requirements:
(1) Presentation of a certified copy or an original
certificate of registration or license in good standing issued to
the applicant by another state where requirements for licensure are
equivalent to those of this state.
(2) Payment of a fee established by legislative rule.
(3) Unless waived by the board, all applicants for licensure
by endorsement must:
(A) Apply for the highest level of therapeutic licensure in
this state;
(B) Be current in the continuing education requirements of
their current state of licensure;
(C) Have engaged in the active practice of optometry for at
least five of the seven years immediately preceding his or her
application;
(D) Have not committed any act that would constitute grounds
for disciplinary action under this article or under any legislative
rule;
(E) Submit to an oral or written examination and interview as
considered necessary by the board at a time and place prescribed by
the board;
(F) Pass a West Virginia optometry law examination as required
by the board to be given at such time and place as prescribed by
the board.
(b) An applicant may not be considered for licensure by
endorsement in this state if he or she has failed the West Virginia
optometry board examination within the ten years preceding the date on which the application for endorsement is filed.
§30-8-7. Biennial renewal of registration; restoration of expired
certificate.
Every registered optometrist who desires to continue in active
practice or service shall, annually biennially, on or before the
first day of August, of each that year, renew his or her
certificate of registration and pay an annual a biennial renewal
fee of twenty dollars as determined by legislative rule. Every
certificate of registration which has not been renewed during the
month of August in any one year shall expire on the first day of
September 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 the all required
renewal fee and late fees for each lapsed year, and submit proof of
accumulated continuing education hours for each year that has
lapsed. Any registered optometrist who retires from the practice
of optometry for more than five years may renew his certificate of
registration upon payment of all lapsed renewal fees.
§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; habitual drunkenness, or addiction to the
use of morphine, cocaine, or other habit-forming drugs; substance
abuse involving alcohol or controlled substances; advertising,
practicing, or attempting to practice under a name other than one's
own; and, 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 of complete glasses, that is to say, lenses and
frames or mountings, at a stated price, either alone or in conjunction with professional services; (b) Advertising "free
examination of eyes," or "free consultation," or "free advice," or
words of similar import and meaning; (c) (b) advertising frames or
mountings for glasses, by advertisement contact lenses or other
optical devices which does not accurately describe the same in all
its component parts. (all such advertisements shall state clearly,
in type equal in size to the price figures given, that such price
does not include cost of lenses, or professional services in
examining of eyes), and, (d) advertising a particular sum or sums
of money required as a "down" or cash payment, or any definite
amount or amounts of future payments, or when the same shall be
paid
§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 hundred thousand nor more than two hundred five
thousand dollars and, upon conviction for a second or subsequent
offense, by a fine of not less than two hundred five thousand nor
more than five hundred 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 wilfully 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.
Justices of the peace Magistrates shall have concurrent
jurisdiction with circuit and criminal courts for the enforcement
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.
Any individual or corporate entity who influences or attempts to
influence patient care, diagnostic or treatment decisions,
chargeable fees, hours of operation or patient scheduling of a
licensed optometrist under the individual's or corporate entity's
control shall be considered as practicing optometry without a
license. Except as provided in sections three-a and three-b of
this article, no duly registered and licensed optometrist shall
associate himself themselves 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 hundred thousand nor more
than one 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 ten one
thousand dollars nor more than twenty-five 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 to practice
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 fifty one thousand nor more than five hundred 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.
NOTE: The purpose of this bill is to make certain changes to
current law applicable to the board of optometry, including:
Removing certain fees and providing they be established by
legislative rule; increasing criminal fines; providing licensure by
endorsement; eliminating phrases no longer applicable; and updating
archaic language.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§30-8-6a is new; therefore, strike-throughs and underscoring
have been omitted.