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Introduced Version Senate Bill 230 History

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SB230 intr
Senate Bill No. 230

(By Senators Bowman, Kessler, Yost, Browning, Edgell, Snyder and D. Facemire and Wells)

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[Introduced January 18, 2010; referred to the Committee on Government Organization.]

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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 practice.

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That §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b and §30-8-5a of the Code of West Virginia, 1931, as amended, be repealed; that §30- 8-1, §30-8-2, §30-8-3, §30-8-4, §30-8-5, §30-8-6, §30-8-7, §30-8-8, §30-8-9, §30-8-10 and §30-8-11 of said code be amended and reenacted; and that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.
§30-8-3. Definitions.
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 optometry.
(e) "Examination, diagnosis and treatment" means a method compatible with accredited optometric education and professional competence.
(f) "Licensed optometrist" means an optometrist holding a license or temporary permit issued under the provisions of this article.
(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 qualified.
(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 vacancy.
(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 chapter.
(k) A majority of the members of the board constitutes a quorum.
(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 law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, certificates and permits;
(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 licenses;
(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 this article;
(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 board;
(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 licensees;
(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 accrediting organization;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-8-6. Rulemaking.
(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, including:
(1) Standards and requirements for licenses, certificates and permits;
(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 this article.
(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 State Treasury.
§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 controlled substances;
(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 reversed.
(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 article;
(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 this article;
(4) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics, vision training, vision rehabilitation;
(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 local anesthesia;
(6) Furnish or provide of any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye or its appendages; and
(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.
§30-8-10. Exceptions.
The following persons are exempt from licensure under this article:
(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 board.
(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 rule.
(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 indigents.

(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 that:
(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 optometry.
(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.
§30-8-17. 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 article.
(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 turpitude;
(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:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(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; or
(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 actions imposed.
§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 practice.

§30-8 has been completely rewritten; therefore, strike- throughs and underscoring have been omitted.
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