Senate Bill No. 230
(By Senators Bowman, Kessler, Yost, Browning, Edgell, Snyder and
D. Facemire and Wells)
[Introduced January 18, 2010; referred to the Committee on
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 ten 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 and §30-8-21,
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; 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the Code of West Virginia, 1931, as amended, be repealed; that §30-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 ten 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 and §30-8-21, 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,
lessee, or sublessee 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.
§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 an original or renewal license, certificate or a temporary permit
under the provisions of this article.
(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) "Examination, diagnosis and treatment" means a method
compatible with accredited optometric education and professional
(f) "Licensed optometrist" means an optometrist holding a
license or temporary permit issued under the provisions of this
(g) "Licensee" means an optometrist licensed under the
provisions of this article.
(h) "Practice of optometry" means the examining, diagnosing
and treating of any visual defect or abnormal condition of the
human eye or its appendages.
§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) 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 one of its members as chairperson who serves at
the will of the board.
(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 annual meetings. 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 director;
(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
(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 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) Accept test results from a nationally recognized
(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 scope of practice;
(10) A formulary of categories of drugs to be considered
rational to the diagnosis and treatment of visual defects or
abnormal conditions of the human eye and its appendages. The board
shall consult with the Board of Pharmacy before releasing these
rules for public comment;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees, certificate holders and permittees;
(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.
§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 as 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 remains not 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 remains not
(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 the license pursuant to
the provisions of this article.
§30-8-9. Scope of Practice.
(a) An optometrist may:
(1) Examine, diagnosis and treat conditions of the human eye and its appendages;
(2) Administer or prescribe schedule III, IV and V controlled
substances related to the examination, diagnosis or treatment of
diseases and conditions of the human eye and its appendages, if the
licensee meets the criteria established in section fourteen of this
(3) Prescribe and dispense ocular devices approved by the Food
and Drug Administration as a drug, including but not limited to
contact lenses, that contain and deliver pharmaceutical agents, if
the licensees meets the criteria established in section fourteen of
(4) Prescribe, fit, apply, replace, duplicate or alter lenses,
prisms, contact lenses, orthoptics, vision training, vision
(5) Provide minor surgical procedures utilizing any acceptable
mechanical, thermal, light-based, electromagnetic or chemical means
to treat conditions of the eye and it's appendages if the licensee
meets the criteria of section fourteen of this article. For
purposes of this section, those minor surgical procedures shall be
defined as any procedure that can be done in an examination room or
similar setting which requires only a 'clean' field and can be
performed by one doctor of optometry with or without topical or
(6) Furnish or provide of any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye or its
(7) Perform or order laboratory tests indicated to further
evaluate conditions relevant to the eye or it's appendages.
(b) An optometrist may not:
(1) Perform major surgery: This includes any surgery
requiring a 'sterile' field performed in a hospital operating room
or similar setting which may or may not involve general anesthesia;
(2) Perform surgery to remove a foreign body which has
penetrated into the anterior or posterior chambers of the eye;
(3) Perform any surgery which would involve removing or
replacing the crystalline lens (i.e. cataract surgery);
(4) Perform surgery which is designed to have a direct or
indirect affect on the vitreous body or retina of the eye;
(5) Use Schedule I and Schedule II controlled substances;
(6) Treat systemic disease; and
(7) Present to the public that he or she is a specialist in
surgery of the eye.
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.
§30-8-11. Issuance of license; renewal of license; renewal fee;
display of license.
(a) A licensee shall annually or biennially on or before
August 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.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee which
shall be established by the board by legislative rule, the board
may issue, without examination, a temporary permit to engage in the
practice of optometry in this state.
(b) A temporary permit issued shall expire thirty days after
the permittee receives notice of the results of the examination, if
the permittee receives a passing score on the examination. The temporary permit shall expire immediately if the permittee receives
a failing score on the examination. An applicant under this
subsection may be issued only one temporary permit, and upon the
expiration of that permit, may not practice as an optometrist until
fully licensed under the provisions of this article. In no event
may a permittee practice on a temporary permit beyond a period of
ninety consecutive days. A temporary permittee under this
subsection shall work under the supervision of a licensed
optometrist, with the scope of such supervision to be defined by
the board by legislative rule.
§30-8-13. 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 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 West Virginia jurisprudence examination;
(6) Is a citizen of the United States or is eligible for
employment in the United States; and
(7) 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, and may enter into
agreements for reciprocal licensing with other jurisdictions having
substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) An optometrist may not prescribe a drug from Schedule III,
IV or V of the Uniform Controlled Substance Act, utilize oral or
injectable means of administering medications, or perform minor
surgical procedures without obtaining an authorizing certificate
from the board.
(b) To be eligible for a certificate the 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.
§30-8-15. Special volunteer certificate of registration; civil
immunity for voluntary services rendered to
(a) There is established a special volunteer certificate of
registration for optometrists retired or retiring from the active
practice of optometry who 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. The special volunteer
certificate of registration shall be issued by the West Virginia
Board of Optometry to optometrists registered or otherwise eligible
for registration under this article and the legislative rules
promulgated hereunder 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 licensing requirements. The board shall develop application
forms for the special certificate of registration provided in this
subsection which shall contain the optometrist's acknowledgment
(1) The optometrist's practice under the special volunteer
certificate of registration 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 certificate of registration;
(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
volunteer optometrist license.
(b) 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 certificate of registration authorized under
subsection (a) of 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, there must be a
written agreement between the optometrist and the clinic pursuant
to which 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 per occurrence.
(c) Notwithstanding the provisions of subsection (b) 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 certificate of registration authorized under
subsection (a) of this section.
(d) For purposes of this section, "otherwise eligible for
registration" means the satisfaction of all the requirements for
registration as listed in section five of this article and in the
legislative rules promulgated thereunder, except the fee
requirements of section seven of this article and of the
legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the
board to issue a special volunteer certificate of registration to
any optometrist whose certificate of registration is or has been
subject to any disciplinary action or to any optometrist who has
surrendered a certificate of registration or caused such
registration to lapse, expire and become invalid in lieu of having
a complaint initiated or other action taken against his or her registration, or who has elected to place a certificate of
registration in inactive status in lieu of having a complaint
initiated or other action taken against his or her registration, or
who has been denied a certificate of registration.
(f) 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 certificate of registration.
§30-8-16. 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,
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.
§30-8-17. 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 permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee 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 permittee 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 permittee.
Any hearing shall be held in accordance with the provisions of this
(e) Any member of the board or the executive director 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 director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license or permit
of, impose probationary conditions upon or take disciplinary action
against, any licensee, certificate holder or permittee 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, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative
rule of the board;
(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) Aiding or abetting unlicensed practice;
(8) 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
(9) 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.
§30-8-18. 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 director 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 permittee has violated subsection (g),
section seventeen of this article or the board's rules, a formal
written decision shall be prepared which contains findings of fact,
conclusions of law and a specific description of the disciplinary
§30-8-19. Judicial review.
Any licensee, certificate holder or permittee 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.
§30-8-20. 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 permittee 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 a provision of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $1,000 nor more than $10,000 or confined in jail not more
than six months, or both fined and confined.
§30-8-21. 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.
NOTE: The purpose of this bill is to update the article
providing for the Board of Optometrists. The bill prohibits the
practice of optometry without a license; provides definitions;
continues the Board Of Optometry; provides the powers and duties of
the board; provides the rulemaking authority of the board;
continues a special revenue account; establishes licensing
requirements; provides for licensure for persons licensed in another state; establishes renewal requirements and fees; provides
for temporary permits; provides prescriptive authority to
optometrists; provides for a special volunteer certificate of
registration; owning of optometric business entities; provides
procedures for investigation of complaints and grounds for
disciplinary action; provides for judicial review and appeals of
decisions; provides for hearing and notice requirements; provides
criminal penalties and provides that a single act is evidence of
§30-8 has been completely rewritten; therefore, strike-
throughs and underscoring have been omitted.