The Texas Optometry Act is being reprinted. It will contain the same substantive information; however, the 76th Legislature gave it a new “facelift”. The Act will no longer be styled as Article 4552, Texas Civil Statutes, but has been codified as Chapter 351 of the Occupations Code. Unfortunately, other new legislation passed this year was not included in the new Code; therefore, it will be included as an addenda to the new Texas Optometry Act. A copy of the Act is at the printer and will be mailed out shortly. Because of the cost, each optometrist licensee will receive one copy; however, we ask that you mark it as a permanent copy and file it as “important” within your records.
As rules are adopted, those will be shared with you through newsletters. A new rules booklet will be mailed to you once the new therapeutic optometry legislation and rules have been fully enacted. The Act and Rules can be found on the board’s website through links at http://link.tsl.state.tx.us/tx/TOB.
Advertising violations are increasing, and recently the Advertising Committee met to identify problems. Because of the number of complaints being received, the Committee recommended that the Board publish this article in the newsletter to give guidance and an opportunity for each licensee to review yellow page listings, newspaper ads, inserts, flyers, etc., to be sure that all advertising is in compliance with the Texas Optometry Act as well as the Health Professions Council law. The Board will take appropriate action in regard to violations. Violation of these statutes carries a possible penalty of $10,000 per violation and disciplinary action.
To imply or lead the public to believe that a therapeutic optometrist is performing surgery is misleading in violation of the Act. If the words “laser surgery,” “laser correction”, or any similar words are used in an advertisement, the advertisement must include words that define the extent of the optometrist’s involvement, for example, “consultation, “evaluation,” “management,” and/or “co-management”. The same would apply for the use of such words in a trade name. If an office or location is advertising as a “Laser Center”, it would appear to be misleading if a laser were not actually on the premises. Guaranteed claims of success with any optometric procedure would also be misleading.
Comparisons that cannot be substantiated are misleading and a violation of the law. Comparisons of the services of a professional usually cannot be substantiated. For example, “The Best Eye Exam in Town” cannot be substantiated and would be a violation.
Testimonials in any advertisement are a violation of the Health Professions Council law.
Advertisements placed by manufacturers, wholesalers and retailers may not contain the names and telephone number of optometrists. Further, 1-800-telephone numbers which provide access to the doctor’s office by a wholesaler, retailer, or manufacturer, either directly or by referral, would be in violation of the Act.
Board Rule 280.6 contains the only approved language to denote certification as a therapeutic optometrist. The exact language is: “Certified as a Therapeutic Optometrist by the Texas Optometry Board." There are no exceptions. Optometrists certified by readily identifiable organizations may advertise that they are certified as long as the same advertisement specifically identifies the organization that awarded the certification or specialization. Examples: Joe Smith, O.D., FNAEI, Fellow of the North American Eye Institute or Joe Smith, O.D., Contact Lens Specialist, Certified by the North American Contact Lens Foundation.
Healing Art Identification
The use of the term “optometric physician” is a violation. Any reference to an optometrist’s or therapeutic optometrist’s name (office door, printed materials, advertising) must be in one of the following forms, without exception:
Joe Smith, Optometrist
Dr. Joe Smith, Optometrist
Joe Smith, O.D.
Joe Smith, Doctor of Optometry
Any violation of this statute is a misdemeanor with a fine of up to $100 for the first offense.
H.B. 1051 was passed by the 76th Legislature. This is a compromise bill (agreed upon by both Optometry and Medicine), which will authorize therapeutic optometrists to administer and prescribe antiviral agents and to treat glaucoma under consultation with an ophthalmologist regarding the diagnosis and treatment regimen for each patient. It does allow for therapeutic optometrists, after education and testing, to treat a patient with appropriate topical, parenteral or oral medications, but with specified limits on some medications. Therapeutic optometrists will be able to prescribe a 10-day supply of oral antibiotics, a 72-hour supply of oral antihistamines, a 7-day supply of oral non-steroidal anti-inflammatories, and a 3-day supply of any analgesic in Schedules III, IV, and V. Before administering oral or parenteral medications or treatment of glaucoma, therapeutic optometrists must meet new educational requirements and pass a test, both of which must be determined by a committee composed of two physicians, two optometrists and two pharmacists, with recommendations to be reviewed and approved by the Texas Optometry Board and the State Board of Medical Examiners. Once the requirements are met, the designation of “Optometric Glaucoma Specialist” may be used.
In addition to the treatment aspect, the bill contains strict referral conditions but allows for emergency care through administering of oral carbonic anhydrase inhibitors and injections for patients who have an anaphylactic reaction. The committee that is established may recommend for the boards’ approval classifications of prescription medications, which will eliminate having to go back to the Legislature in the future to change the law. The bill prohibits surgery, which includes laser surgery, and in fact defines “surgery”.
Due to the amount of work required to implement the new law, establish the committee, determine the education and test, and obtain approval from two state boards, it is anticipated that full implementation will not occur until early next year.
H.B. 2394 - This bill will allow for licensure without examination if the applicant is in good standing as a therapeutic optometrist in another state, the District of Columbia, or a territory of the United States; has passed an examination that is equivalent to the examination required in Texas; has actively engaged in the practice of therapeutic optometry during at least five of the seven years preceding the application date; has no pending disciplinary actions; and has never had their license suspended or revoked. The bill also allows for fourth year students to take the Texas Jurisprudence Examination when they take the NBEO Part III exam, prior to obtaining their Doctor of Optometry degree, based on the recommendation of the deans of the colleges of optometry.
H.B. 2453 - This bill will allow a physician and an optometrist to jointly own and manage a partnership, a limited partnership, a limited liability company or other legal entity. This bill also amended the Medical Practice Act with identical language.
H.B. 692 - Social security numbers of an applicant for or holder of a license to practice in a specific profession are considered confidential and are not subject to disclosure under the open records law. (See article on federal reporting of adverse actions.)
S.B. 1235 - A person, including a person regulated by the Texas Department of Insurance, is prohibited from using a practitioner’s Federal Drug Enforcement Administration (DEA) number for any purpose other than the purposes described by federal law. It provides for a Class C misdemeanor violation.
H.B. 749 - This bill prohibits the sale of infant formula or baby food, drugs, or contact lenses, including disposable contact lenses, at a flea market unless the person selling the item is authorized in writing to sell the item at retail by the manufacturer or the manufacturer’s authorized distributor, and the person makes the authorization available for examination or review. (Note: to sell contact lenses at retail in Texas requires a permit from the Texas Department of Health, and can only be sold upon presentation of a fully written contact lens prescription.) A violation of this law is a misdemeanor punishable by a fine.
H.B. 110 - This bill amends the Medical Practice Act and establishes a physician profile to be created and maintained online for public access to certain information regarding medical practitioners. Within the bill is the requirement for a feasibility study to determine the cost and methodology for establishing and administering a profile program for other health professionals, including optometrists. Items of public information include medical school, graduation date, specialty certifications, years of practice, hospitals in which the licensee has privileges, primary practice location, Medicaid participation information, convictions for a felony or Class A, B or C misdemeanor involving moral turpitude (including no-contest pleadings), disciplinary actions by any licensing board, and accessibility to disabled persons, including translation services.
H.B. 3155 was a nonsubstantive change of the Texas Optometry Act. The law is now codified in the new Occupations Code, using more modern language, eliminating language no longer in effect, updating all legal cites, and “rearranging” sections within the Act. Such change will require an update to all rules, forms, and correspondence where the current law is cited. (See article on mailing of new Act.)
Other bills monitored and passed were those affecting collective bargaining, filing of reports with other state agencies and the legislature, agency administration, establishment of rules, and administrative procedures for formal hearings.
Renewal forms will be mailed in late October, and the fee has been increased by $10.00 to cover the additional appropriations set by the Legislature. For those practicing in Texas, the fee will be $350 and inactive licenses will be $150. Consider this as notice to all licensees, that action will be taken against licensees who have not renewed by January 1 and are found to be practicing. To practice without a valid renewal is the practice of optometry without a license, and the Board will take appropriate action. There is no “grace” period.
FEDERAL REPORTING OF ACTIONS
There has been a new federal law enacted which requires all health licensing boards to file disciplinary actions against a licensee with a national data bank, called Healthcare Integrity and Protection Data bank (HIP-DB), along with the social security number of the licensee. While this board does not make your social security number available to the general public, it must be provided to that federal reporting agency when a disciplinary action has been taken against a license, such as a suspension or revocation. Those actions from 1992 forward will be furnished to that data bank.
Two rules have been amended in order to address numerous complaints which have occurred by the practice of optometry within a school system. While optometrists may practice within the school setting when proper authorization is obtained from parents or guardians, complete examinations as required by Section 5.12 of the Act must be performed. To fully inform parents or guardians, Rule 273.9 (a) was amended to read as follows:
(a) In order for the public to be informed regarding the functions of the board and the board’s procedures by which complaints are filed with and resolved by the board, each licensee is required to display at every location where optometric services are provided information regarding the board’s name, address, and telephone number.
The display of the consumer information sign or providing the pamphlet as outlined in the rule will satisfy the rule amendment.
Further, the board amended Rule 279.13 to read as follows:
The Texas Optometry Act was enacted in part to safeguard the visual welfare of the public and the optometrist-patient relationship and to fix professional responsibility with respect to the patient. In order to comply with these objectives and to assure patients will have adequate follow-up care, licensed optometrists or therapeutic optometrists who practice optometry or therapeutic optometry, including the examination and prescribing or supplying of lenses to patients, at:
(1) a nursing home or other abode to patients confined therein,
(2) an industrial site, when requested to do so, or
(3) a school site when requested to do so by the school administration,
must have an office location or place of practice within 100 miles of such examination site, or, in the alternative must have made arrangements, confirmed in writing prior to offering or providing services, for continued care with a qualified eye health professional with an office location or place of practice within 100 miles of such examination site. Failure to comply with this rule shall be deemed as practicing from house-to-house and the improper solicitation of patients in violation of the Act, § 5.04(5). In addition, the optometrist must comply with the requirements of § 5.02 to maintain current information regarding practice locations with the board office.
All Board appointments have been made and the Board recently elected new officers for the next two years. The following indicates the Board membership:
Kevin DeWolfe, O.D., Austin - Chair
Joe DeLoach, O.D., Dallas - Vice-Chair
Katherine Garrett Gear, Mineral Wells - Secretary-Treasurer
Ann A. Bradford, Midland
Carolyn Carman-Merrifield, O.D., Arlington
Judy Eidson, San Antonio
B. J. Garner, O.D., Houston
Donald R. Glenz, O.D., Houston
Mark A. Latta, O.D., Amarillo
Q and A General Practice
The Board continues to receive similar questions from time to time, and we will address those in question and answer format.
Q: Do I have to release patient records if the patient owes money.
A: Yes, upon request, the patient is entitled to a copy of their optometric record. Section 5.21 allows for a written request and reasonable charges for producing the records. It does not limit the release to whether or not all moneys have been paid.
Q: Do I have to release a prescription for eyeglasses or contact lenses, if the examination fee has not been paid?
A: No. Texas Contact Lens Prescription Act and Section 5.15(e) of the Texas Optometry Act do not require the release of prescriptions until the examination fee has been paid.
Q: Consumer wants a prescription, however, the examining doctor is no longer here (or there was a relief doctor). Can I write a prescription and sign it?
A: No, only the examining doctor can issue the prescription. To issue a prescription without examination places the doctor in violation of Section 5.07 of the Act. Rule 279.3 does allow for the dispensing from the record if the record is in the same office.
Q: I dispense a private label for contact lenses within my office. If the patient requests a prescription, may I write a prescription for those?
A: If you dispense private labels within your office, you must place a brand name on the contact lens prescription that is available to the entire optical industry. If some lenses are available under different brand names, then you may authorize “substitution” on the prescription. (Ref: Rule 279.1).
NOTICE TO MEDICAID PROVIDERS
The Texas Department of Health has requested that the following information be disseminated to all optometrists who may be state Medicaid providers. By statute, all Medicaid providers are required to re-enroll as a condition of continued participation in the program. The deadline for that re-enrollment is March 31, 2000. If you have any questions, or need assistance, please contact NHIC, 1-800-925-9126, Option 1.
CE COURSES ON WEB
A new website http://www.optometryce.org/ has been established for the listing of continuing education courses throughout the nation, sponsored by the Association of Regulatory Boards in Optometry (ARBO), formerly known as the International Association of Boards of Examiners in Optometry, Inc. Sponsors of education may list their meetings/courses on that website database. The inclusion of meeting information on that database does not constitute approval for CE credit by the Texas Optometry Board. You would need to contact the Board to see if a particular meeting/course is approved; otherwise, credit will not be given. Another helpful website is www.copeopt.org. This site lists all COPE approved courses, which the Board approves.
It is the goal of the Texas Optometry Board to assure the public and all constituencies that the agency is in full compliance with the Americans with Disabilities Act and that the office, programs, activities, and publications are accessible to anyone needing reasonable accommodations.
Information concerning the provisions of the ADA, and rights provided are available from the Agency ADA Coordinator, Lois Ewald, at (voice) 512/305-8500, (fax) 512/305-8501, or 1-RELAY-TEXAS (TDD).
BOARD WEB PAGE
The Board has a home page on the Internet athttp://www.tob.state.tx.us