Senate Bill No. 230
(By Senators Bowman, Kessler, Yost, Browning, Snyder, D. Facemire
[Originating in the Committee on Government Organization;
reported February 11, 2010.]
A BILL to repeal §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b and §30-8-
5a of the Code of West Virginia, 1931, as amended; to amend
and reenact §30-8-1, §30-8-2, §30-8-3, §30-8-4, §30-8-5, §30-
8-6, §30-8-7, §30-8-8, §30-8-9, §30-8-10 and §30-8-11 of said
code; and to amend said code by adding thereto twelve new
sections, designated §30-8-12, §30-8-13, §30-8-14, §30-8-15,
§30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-8-21,
§30-8-22 and §30-8-23,
all relating to the Board of Optometry;
prohibiting the practice of optometry without a license;
providing other applicable sections; providing definitions;
providing for board composition; setting forth the powers and
duties of the board; clarifying rule-making authority;
clarifying the scope of practice; establishing expanded
authority for procedures and injections; continuing a special
revenue account; establishing license requirements; providing for licensure for persons licensed in another state;
establishing renewal requirements; providing permit
requirements; requiring display of license; setting forth
grounds for disciplinary actions; allowing for specific
disciplinary actions; providing procedures for investigation
of complaints; providing for judicial review and appeals of
decisions; setting forth hearing and notice requirements;
providing for civil causes of action; providing criminal
penalties; and providing that a single act is evidence of
Be it enacted by the Legislature of West Virginia:
That §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b and §30-8-5a of
the Code of West Virginia, 1931, as amended, be repealed; that §30-
8-1, §30-8-2, §30-8-3, §30-8-4, §30-8-5, §30-8-6, §30-8-7, §30-8-8,
§30-8-9, §30-8-10 and §30-8-11 of said code be amended and
reenacted; and that said code be amended by adding thereto twelve
new sections, designated §30-8-12, §30-8-13, §30-8-14, §30-8-15,
§30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-8-21, §30-8-
22 and §30-8-23,
all to read as follows:
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice optometry in this state without a license or permit issued
under the provisions of this article, or advertise or use any title
or description tending to convey the impression that they are an
optometrist unless the person has been duly licensed or permitted under the provisions of this article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of optometry, except through a
licensee or permitee.
(c) A licensee may not practice optometry as an employee of
any commercial or mercantile establishment.
(d) A licensee may not practice optometry on premises not
separate from premises whereon eyeglasses, lenses, eyeglass frames
or any other merchandise or products are sold by any other person.
For the purposes of this section, any room or suite of rooms in
which optometry is practiced shall be considered separate premises
if it has a separate and direct entrance from a street or public
hallway or corridor within a building, which corridor is
partitioned off by partitions from floor to ceiling.
(e) A person who is not licensed under this article as an
optometrist may not characterize himself or herself as an
"optometrist," "doctor of optometry," or "optometric physician,"
nor may a person use the designation "OD".
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are
subject to the provisions of article one of this chapter, the
provisions of this article and the board's rules.
As used in this article:
(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva and the lacrimal apparatus.
(b) "Applicant" means any person making application for a
license, certificate or temporary permit under the provisions of
(c) "Board" means the West Virginia Board of Optometry.
(d) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity owned by licensees that practices
(e) "Certificate" means a prescription certificate issued
under section fifteen of this article.
(f) "Certificate holder" means a person authorized to
prescribe certain drugs under section fifteen of this article.
(g) "Examination, diagnosis and treatment" means a method
compatible with accredited optometric education and professional
(h) "License" means a license to practice optometry.
(i) "Licensed opthamologist
" means an opthamologist
in West Virginia under the provisions of article three of this
(j) "Licensee" means an optometrist licensed under the
provisions of this article.
(k) "Permitee" means a person holding a temporary permit.
(l) "Practice of optometry" means the examining, diagnosing
and treating of any visual defect or abnormal condition of the
human eye or its appendages.
(m) "Temporary permit" or "permit" means a permit issued to a
person who has graduated from an approved school, has taken the
examination prescribed by the board, and is awaiting the results of
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The
members of the board in office on July 1, 2010, shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and
(b) The board shall consist of the following members appointed
by the Governor, by and with the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the
provisions of this article and who do not perform any services
related to the practice of the profession regulated under the
provisions of this article.
(c) Each licensed member of the board, at the time of his or
her appointment, must have held a professional license in this
state for a period of not less than three years immediately
preceding the appointment.
(d) Each member of the board must be a resident of this state
during the appointment term.
(e) The term shall be three years. A member may not serve
more than two consecutive full terms. A member may continue to
serve until a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
(g) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(h) A member of the board immediately and automatically
forfeits membership to the board if his or her license to practice
is suspended or revoked, is convicted of a felony under the laws of
any jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a
secretary-treasurer from its members who serve at the will of the
(j) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
(k) A majority of the members of the board constitutes a
(l) The board shall hold at least two meetings a year. Other
meetings may be held at the call of the president or upon the
written request of two members at the time and place as designated
in the call or request.
(m) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
(2) Establish requirements for licenses, certificates and
(3) Establish procedures for submitting, approving and
rejecting applications for licenses, certificates and permits;
(4) Determine the qualifications of any applicant for
licenses, certificates and permits;
(5) Prepare, conduct, administer and grade examinations for
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix
the compensation of the executive secretary;
(9) Maintain an office and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of
the provisions of this article;
(14) Maintain an accurate registry of names and addresses of
all licensees regulated by the board;
(15) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for
(17) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses, certificates and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
(1) Standards and requirements for licenses, certificates and
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses,
certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories
of oral drugs rational to the diagnosis and treatment of visual
defects or abnormal conditions of the human eye and its appendages,
which may be prescribed by licensees from Schedules III, IV and V
of the Uniform Controlled Substances Act. The drug formulary may
also include oral antibiotics, oral nonsteroidal anti-inflammatory
drugs and oral carbonic anhydrase inhibitors. The board shall
consult with the Board of Pharmacy and other appropriate boards
before releasing these rules for public comment;
(10) Requirements, in addition to the requirements for
obtaining a certificate, for prescribing and dispensing contact
lenses that contain and deliver pharmaceutical agents that have
been approved by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees, certificate
holders and permitees;
(13) Requirements for inactive or revoked licenses,
certificates or permits; and
(14) Any other rules necessary to effectuate the provisions of
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board shall promulgate procedural and interpretive
rules in accordance with section eight, article three, chapter
twenty-nine-a of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "West Virginia
Board of Optometry Fund", which is continued. The fund is used by
the board for the administration of this article. Except as may be
provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No
compensation or expense incurred under this article is a charge
against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of
optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation
Council on Optometric Education or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other
(7) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license,
which conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of optometry, which conviction has not been
(b) A registration to practice issued by the board prior to
July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration
issued prior to July 1, 2010, must renew pursuant to the provisions
of this article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of
the human eye and its appendages;
(2) Administer or prescribe any drug for topical application
to the anterior segment of the human eye for use in the
examination, diagnosis or treatment of diseases and conditions of
the human eye and its appendages: Provided, That the licensee has
first obtained a certificate;
(3) Administer or prescribe any drug from the drug formulary,
as established by the board pursuant to section six of this
article, for use in the examination, diagnosis or treatment of
diseases and conditions of the human eye and its appendages:
Provided, That the licensee has first obtained a certificate;
(4) Administer epinephrine by injection to treat emergency
cases of anaphylaxis or anaphylactic shock;
(5) Prescribe and dispense contact lenses that contain and
deliver pharmaceutical agents and that have been approved by the
Food and Drug Administration as a drug: Provided, That the licensee
has first obtained a certificate and satisfied all requirements as
set out in legislative rule;
(6) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics, vision training, vision
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa
utilizing a non-intrusive method;
(B) Remove a foreign body, external eye, conjunctival,
superficial, using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from
conjunctiva, using topical anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second
layer of the cornea using topical anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without
(8) Furnish or provide any prosthetic device to correct or
relieve any defects or abnormal conditions of the human eye and its
(9) Order laboratory tests rational to the examination,
diagnosis, and treatment of a disease or condition of the human eye
and its appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures
authorized by the board prior to January 1, 2010.
(b) An licensee may not:
(1) Perform surgery: Provided, That a licensee may perform a procedure approved pursuant to section ten of this article if the
licensee meets the requirements therein;
(2) Use a therapeutic laser: Provided, That a licensee, who
has the proper training as determined by the board,
may perform the
following procedures using therapeutic lasers when such licensee is
working in a collaborative arrangement with a licensed
opthamologist to provide care to a patient:
(A) An Argon Laser Trabeculoplasty procedure in the treatment
(B) A Selective Laser Trabeculoplasty procedure in the
treatment of glaucoma;
(C) A Peripheral Iridotomy procedure in the treatment of
(D) A YAG Capsulotomy procedure following a cataract surgery;
(3) Use Schedule I and Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in
surgery of the eye.
§30-8-10. Expanded authority for the use of therapeutic lasers and
(a) A licensee may not use a therapeutic laser or perform any
minor procedure, other than those therapeutic lasers and minor
procedures specifically identified in this article, unless the
provisions of this section, along with any legislative rule
promulgated pursuant to this section, have been met.
(b) The board with the advice of the Board of Medicine may propose rules for legislative approval in accordance with the
provisions of article three, [§
29A-3-1 et seq.] chapter twenty-
nine-a of this code to permit licensees to use other therapeutic
lasers and perform other minor procedures. These rules shall state
specifically what therapeutic laser is being approved for use by a
licensee, or specifically what additional minor procedure(s) a
licensee will be permitted to perform, and provide, at a minimum,
for the following:
(1) Provide a list of approved and required courses in the use
of the therapeutic laser or performance of the minor procedure(s);
(2) Definitive treatment guidelines which shall include, but
not be limited to, appropriate observation for an adverse reaction
of an individual following the use of the therapeutic laser or
performance of the minor procedure(s);
(3) Continuing education requirements for these areas of
(4) Reporting requirements for licensees using the therapeutic
laser or performing the minor procedure(s) to report to the
(5) That a licensee may not delegate the authority to use the
therapeutic laser or perform the minor procedure(s) to any other
(6) In the case of a therapeutic laser, a licensee may only
use a therapeutic laser when the licensee is working in a
collaborative arrangement with a licensed opthamologist to provide
care to a patient
(7) Any other provisions necessary to implement the provisions
of this section.
The following persons are exempt from licensure under this
(1) Persons licensed to practice medicine and surgery under
article three of this chapter or osteopathy under article fourteen
of this chapter;
(2) Persons and business entities who sell or manufacturer
ocular devices in a permanently established place of business, who
neither practice nor attempt to practice optometry.
§30-8-12. Issuance of license; renewal of license; renewal fee;
display of license.
(a) A licensee shall annually or biennially on or before July
1, renew his or her license by completing a form prescribed by the
board, paying the renewal fee and submitting any other information
required by the board.
(b) The board shall charge a fee for renewal of a license, and
a late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal of a
license that each licensee complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a license.
§30-8-13. Temporary permits.
(a) Upon proper application and the payment of a fee, the
board may issue, without examination, a temporary permit to engage
in the practice of optometry in this state.
(b) If the permitee receives a passing score on the
examination, a temporary permit expires thirty days after the
permitee receives the results of the examination.
(c)If the permitee receives a failing score on the
examination, the temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one
temporary permit. Upon the expiration of a temporary permit, a
person may not practice as an optometrist until he or she is fully
licensed under the provisions of this article. In no event may a
permitee practice on a temporary permit beyond a period of ninety
(e) A temporary permitee under this section shall work under
the supervision of a licensee, with the scope of such supervision
to be defined by the board by legislative rule.
§30-8-14. License from another jurisdiction; license to practice
in this state.
(a) The board may issue a license to practice to an applicant
of good moral character who holds a valid license or other
authorization to practice optometry from another jurisdiction, if
the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice
optometry in another state which requirements are substantially
equivalent to those required in this state;
(2) Does not have charges pending against his or her license
or other authorization to practice, and has never had a license or
other authorization to practice revoked;
(3) Has not previously failed an examination for professional
licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the
(b) In its discretion, the board may interview and examine an
applicant for licensing under this section. The board may enter
into agreements for reciprocal licensing with other jurisdictions
having substantially similar requirements for licensure.
§30-8-15. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical
agents, (2) oral pharmaceutical agents that are included in the
drug formulary established by the board pursuant to section six of
this article, and (3) contact lenses that contain and deliver
pharmaceutical agents that have been approved by the Food and Drug
Administration as a drug
, only if
the licensee has first obtained
a certificate from the board.
(b) To obtain a certificate from the board, an applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by
(c) Certificates shall be issued to coincide with the
applicant's licensing period.
§30-8-16. Administration of injectable pharmaceutical agents
(a) A licensee may not administer pharmaceutical agents by
injection, other than epinephrine to treat emergency cases of
anaphylaxis or anaphylactic shock, unless the provisions of this
section, along with any legislative rule promulgated pursuant to
this section, have been met.
(b) The board with the advice of the Board of Medicine may
propose rules for legislative approval in accordance with the
provisions of article three, [§
29A-3-1 et seq.] chapter twenty-
nine-a of this code to permit licensees to administer other
pharmaceutical agents by injection. These rules shall provided, at
a minimum, for the following:
(1) Establishment of a course, or provide a list of approved
courses, in administration of pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but
not be limited to, appropriate observation for an adverse reaction
of an individual following the administration of a pharmaceutical
agent by injection;
(3) A requirement that a licensee shall have completed a
board approved injectable administration course and completed an
American Red Cross or American Heart Association basic life-support training, and maintain certification in the same;
(4) Continuing education requirements for this area of
(5) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the primary care
physician or other licensed health care provider as identified by
the person receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the appropriate
(7) That a licensee may not delegate the authority to
administer pharmaceutical agents by injection to any other person;
(8) Any other provisions necessary to implement the provisions
of this section.
(c) In no event may a licensee be granted authority under this
section to administer a pharmaceutical agent by injection directly
into the globe of the eye.
§30-8-17. Special volunteer license; civil immunity for voluntary
services rendered to indigents.
(a) There is established a special volunteer license for
optometrists who are retired or are retiring from the active
practice of optometry and wish to donate their expertise for the
care and treatment of indigent and needy patients in the clinic
setting of clinics organized, in whole or in part, for the delivery
of health care services without charge.
(b) The special volunteer license shall be issued by the board
to optometrists licensed or otherwise eligible for licensure under
this article without the payment of an application fee, license fee
or renewal fee, and shall be issued for the remainder of the
licensing period, and renewed consistent with the boards other
(c) The board shall develop application forms for the special
volunteer license provided in this section which shall contain the
optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer
license will be exclusively devoted to providing optometrical care
to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any optometrical services rendered
under the special volunteer license;
(3) The optometrist will supply any supporting documentation
that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in
continuing education as required by the board for a special
(d) Any optometrist who renders any optometrical service to
indigent and needy patients of a clinic organized, in whole or in
part, for the delivery of health care services without charge,
under a special volunteer license authorized under this section
without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil
action arising out of any act or omission resulting from the
rendering of the optometrical service at the clinic unless the act
or omission was the result of the optometrist's gross negligence or
willful misconduct. In order for the immunity under this
subsection to apply, before the rendering of any services by the
optometrist at the clinic, there must be a written agreement
between the optometrist and the clinic stating that the optometrist
will provide voluntary uncompensated optometrical services under
the control of the clinic to patients of the clinic before the
rendering of any services by the optometrist at the clinic:
Provided, That any clinic entering into such written agreement is
required to maintain liability coverage of not less than $1 million
(e) Notwithstanding the provisions of subsection (d) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of an optometrist rendering
voluntary optometrical services at or for the clinic under a
special volunteer license under this section.
(f) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the
board to issue a special volunteer license to any optometrist whose
license is or has been subject to any disciplinary action or to any optometrist who has surrendered a license or caused such license to
lapse, expire and become invalid in lieu of having a complaint
initiated or other action taken against his or her license, or who
has elected to place a license in inactive status in lieu of having
a complaint initiated or other action taken against his or her
license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any optometrist covered under the provisions of this article shall
be read so as to contain a provision or endorsement whereby the
company issuing such policy waives or agrees not to assert as a
defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by an optometrist
who holds a special volunteer license.
§30-8-18. Optometric business entities.
(a) Only licensees may own a business entity that practices
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of
optometry when it is not wholly owned by licensees: Provided, That
the personal representative of a deceased shareholder shall have a
period, not to exceed eighteen months from the date of such
shareholder's death, to dispose of such shares.
§30-8-19. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person
cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative
rules of the board.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee, certificate
holder or permitee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permitee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the
licensee or permitee has violated subsection (g) of this section or
rules promulgated pursuant to this article, the board may enter
into a consent decree or hold a hearing for the suspension or
revocation of the license, certificate or permit or the imposition
of sanctions against the licensee, certificate holder or permitee.
Any hearing shall be held in accordance with the provisions of this
article, and the provisions of articles five and six, chapter
twenty-nine-a of this code.
(e) Any member of the board or the executive secretary of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive secretary may
sign a consent decree or other legal document on behalf of the
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license, certificate
or permit of, impose probationary conditions upon or take
disciplinary action against, any licensee, certificate holder or
permitee for any of the following reasons once a violation has been
proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud,
misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
(3) Being guilty of unprofessional conduct which placed the
public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked,
suspended, other disciplinary action taken, by the proper
authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by
the proper authorities of another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public; or
(10) False and deceptive advertising; this includes, but is
not limited to, the following:
(A) Advertising "free examination of eyes," or words of
similar import and meaning; or
(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.
(h) For the purposes of subsection (g) of this section
disciplinary action may include:
(3) Administrative fine, not to exceed $1,000 per day per
(4) Mandatory attendance at continuing education seminars or
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to
the board for periodic interviews for a specified period of time;
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-8-20. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee,
certificate holder or permitee has violated the provisions of this
article or the board's legislative rules, a formal written decision
shall be prepared which contains findings of fact, conclusions of
law and a specific description of the disciplinary actions imposed.
§30-8-21. Judicial review.
Any licensee, certificate holder or permitee adversely
affected by a decision of the board entered after a hearing may
obtain judicial review of the decision in accordance with section
four, article five, chapter twenty-nine-a of this code, and may
appeal any ruling resulting from judicial review in accordance with
article six, chapter twenty-nine-a of this code.
§30-8-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee,
certificate holder or permitee has committed a criminal offense under this article, the board may bring its information to the
attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $500 nor more than $1,000 or confined in jail not more
than six months, or both fined and confined.
§30-8-23. Single act evidence of practice.
In any action brought or in any proceeding initiated under
this article, evidence of the commission of a single act prohibited
by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general
course of conduct.