THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HARKINS, M. O'BRIEN, PASHINSKI, GRUCELA, JOSEPHS, HORNAMAN, KORTZ, MANN, MURT, FABRIZIO AND K. SMITH, FEBRUARY 9, 2009

REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, FEBRUARY 9, 2009  

AN ACT

Regulating the licensure and practice of ophthalmic dispensing;

establishing the State Board of Ophthalmic Dispensers;

providing for its powers and duties; and providing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Ophthalmic

Dispensing Practice and Licensure Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Advisory Committee on Continuing Professional Education" or

"advisory committee."  An advisory committee established under

section 4 to make recommendations to the State Board of

Ophthalmic Dispensers relating to continuing professional

education.

"Board."  The State Board of Ophthalmic Dispensers.

"Fitting of contact lenses."  A procedure in which a

prescribed contact lens is placed upon the eye of a patient and

the lens-cornea relationship is evaluated with the use of a

biomicroscope or slit-lamp.

"Ophthalmic dispensing."  The preparation and dispensing of

lenses, spectacles, eyeglasses or appurtenances thereto to the

intended wearers thereof on written prescriptions from

physicians, osteopaths or optometrists duly licensed to practice

their profession, and in accordance with such prescriptions,

interprets, measures, adapts, fits and adjusts such lenses,

spectacles, eyeglasses or appurtenances thereto to the human

face for the aid or correction of visual or ocular anomalies of

the human eye. The services and appliances relating to

ophthalmic dispensing shall be dispensed, furnished or supplied

to the intended wearer or user thereof only upon written

prescription issued by a physician, osteopath or optometrist;

but duplications, replacements, reproductions or repetitions may

be done without prescriptions, in which event any such act shall

be construed to be ophthalmic dispensing the same as if

performed on the basis of an original written prescription.

Section 3.  State Board of Ophthalmic Dispensers.

(a)  Establishment.--The State Board of Ophthalmic Dispensers

is established and shall consist of 13 members, all of whom

shall be residents of this Commonwealth. Eight members shall be

medical physicians or osteopaths experienced in the treatment

and examination of the human eye, who are licensed to practice

in this Commonwealth and who have been practicing in this

Commonwealth for at least the five-year period immediately

preceding their appointment. Three members shall be persons

representing the public at large, one member shall be the

Commissioner of Professional and Occupational Affairs and one

member shall be the Director of the Bureau of Consumer

Protection in the Office of Attorney General or the director's

designee. The professional and public members of the board shall

be appointed by the Governor with the advice and consent of a

majority of the members elected to the Senate.

(b)  Terms of office.--All professional and public members

shall serve for terms of four years. No member shall be eligible

for appointment to serve more than two consecutive terms. A

member may continue to serve for a period not to exceed six

months following the expiration of the member's term if a

successor has not been duly appointed and qualified according to

law.

(c)  Quorum.--A majority of the members of the board serving

in accordance with law shall constitute a quorum. Except for

temporary and automatic suspensions under section 12, a member

may not be counted as part of a quorum or vote on any issue

unless the member is physically in attendance at the meeting.

The board shall select, from among its membership, a

chairperson, a vice chairperson and a secretary.

(d)  Expenses of board members.--Each public and professional

member of the board shall be paid reasonable traveling, hotel

and other necessary expenses incurred in the performance of the

member's duties in accordance with Commonwealth regulations and

per diem compensation at the rate of $60 for each day of actual

service while on board business.

(e)  Effect of absences.--A member who fails to attend three

consecutive meetings shall forfeit the member's seat unless the

Commissioner of Professional and Occupational Affairs, upon

written request from the member, finds that the member should be

excused from a meeting because of illness or the death of an

immediate family member.

(f)  Appointment of successors.--In the event that a member

of the board dies, resigns or otherwise becomes disqualified

during a term of office, a successor shall be appointed in the

same manner and with the same qualifications as set forth in

subsection (a) and shall hold office for the unexpired term.

(g)  Effect of absence at mandatory seminars.--A public

member who fails to attend two consecutive statutorily mandated

seminars in accordance with section 813(e) of the act of April

9, 1929 (P.L.177, No.175), known as The Administrative Code of

1929, shall forfeit his or her seat unless the Commissioner of

Professional and Occupational Affairs, upon written request from

the public member, finds that the public member should be

excused from a meeting because of illness or the death of a

family member.

Section 4.  Powers and duties of board.

(a)  General rule.--The board shall have the following

duties:

(1)  To meet at least four times annually at a place

within this Commonwealth determined by the board for the

transaction of its business.

(2)  To prescribe the subjects to be tested, authorize

written and practical portions of the examination and

contract with a professional testing organization for

examinations of qualified applicants for licensure at least

twice annually at such times and places as designated by the

board. All written, oral and practical examinations shall be

prepared and administered by a qualified and approved

professional testing organization in accordance with section

812.1 of the act of April 9, 1929 (P.L.177, No.175), known as

The Administrative Code of 1929.

(3)  To require every licensee to insure liability by

purchasing and maintaining professional liability insurance

coverage in accordance with the following provisions:

(i)  Beginning with the first license renewal period

at least two years after the effective date of this

paragraph or upon first making application for licensure,

whichever occurs earlier, a licensee shall obtain and

maintain, to the satisfaction of the board, professional

liability insurance coverage in the minimum amount of

$200,000 per occurrence and $600,000 per annual

aggregate. The professional liability insurance coverage

shall remain in effect as long as the licensee maintains

a current license.

(ii)  A licensee shall notify the board within 30

days of the licensee's failure to be covered by the

required insurance. Failure to notify the board shall be

actionable under section 9 or 11. The license to practice

shall automatically be suspended upon failure to be

covered by the required insurance and shall not be

restored until submission to the board of satisfactory

evidence that the licensee has the required professional

liability insurance coverage.

(iii)  The board shall accept from licensees as

satisfactory evidence of insurance coverage, under this

paragraph, proof of any or all of the following: self-

insurance, personally purchased professional liability

insurance, professional liability insurance coverage

provided by the licensee's employer or any similar type

of coverage.

(iv)  The board, after consultation with the

Insurance Commissioner, shall establish standards and

procedures by regulation for self-insurance under this

paragraph.

(4)  To record all licenses in its office.

(5)  To grant a license to practice ophthalmic dispensing

in this Commonwealth to any applicant for licensure who has

passed the prescribed examination and otherwise complied with

the provisions of this act.

(6)  To appoint an Advisory Committee on Continuing

Professional Education which shall consist of consultants who

are ophthalmic dispensing educators and ophthalmic dispensing

practitioners to serve with the Deputy Secretary for Higher

Education or the deputy secretary's designee.

(7)  To submit annually to the Department of State an

estimate of the financial requirements of the board for its

administrative, investigative, legal and miscellaneous

expenses.

(8)  To submit annually to the Appropriations Committee

of the Senate and the Appropriations Committee of the House

of Representatives, 15 days after the Governor has submitted

the annual budget to the General Assembly, a copy of the

budget request for the upcoming fiscal year which the board

previously submitted to the Department of State.

(9)  To submit annually to the Consumer Protection and

Professional Licensure Committee of the Senate and the

Professional Licensure Committee of the House of

Representatives a report containing a description of the

types of complaints received, status of cases, board action

which has been taken and the length of time from the initial

complaint to final board resolution.

(10)  To require all ophthalmic dispensers to provide to

their patients information on the existence, powers,

functions and duties of the board, including the procedure

for bringing a complaint to the board. If such information is

available through a publication of the Department of State,

providing a copy of such publication to the patient may

satisfy the requirements of this paragraph.

(b)  Additional powers.--The board shall have the following

powers:

(1)  To grant, refuse, revoke, limit or suspend any

license to practice ophthalmic dispensing in this

Commonwealth under the provisions of this act.

(2)  To conduct hearings, investigations and discovery

proceedings; to administer oaths or affirmations to

witnesses, take testimony, issue subpoenas to compel

attendance of witnesses or the production of records; and to

exercise all powers granted by law or regulation in

accordance with the general rules of administrative practice

and procedure. The board or its designated hearing examiner

may exercise the powers enumerated in this paragraph with

regard to both licensed ophthalmic dispensers and persons

practicing ophthalmic dispensing without a license.

(3)  To obtain injunctions from a court of competent

jurisdiction upon petition of the Commissioner of

Professional and Occupational Affairs or the board. In any

proceeding under this section, it shall not be necessary to

show that any person is individually injured by the actions

complained of. If the court finds that the respondent has

violated this subsection, it shall enjoin the person from so

practicing or holding himself out as an ophthalmic dispenser

until the person has been duly licensed or certified.

Procedure in such cases shall be the same as in any other

injunctive suit.

(4)  To recommend to the Commissioner of Professional and

Occupational Affairs such staff as is necessary to carry out

the provisions of this act.

(5)  To incur expenses, retain consultants, appoint

committees from its own membership and appoint advisory

committees which may include nonboard members.

(6)  To compensate at a rate fixed by the board

consultants and nonboard members of advisory committees.

(7)  To authorize the payment of special reimbursements

for the secretary of the board or any other designated member

of the board for rendering special services authorized by the

board.

(8)  To use qualified board hearing examiners to conduct

hearings and prepare adjudications for final review and

approval by the board, including disciplinary sanctions.

Nothing shall prohibit the board or a designated board member

from conducting such hearings.

(9)  To establish and administer a records system which

records shall be open to public inspection during the regular

business hours of the board.

(10)  To hold meetings, other than required by subsection

(a), for the conduct of its business upon giving public

notice of such meetings.

(11)  In consultation with a national accrediting body

recognized by the United States Department of Education and

the appropriate regional accrediting body recognized by the

United States Department of Education, to approve those

ophthalmic dispensing educational institutions in the United

States and Canada which are accredited for the purposes of

this act.

(12)  In consultation with the advisory committee, to

establish and approve by rule and regulation courses of

continuing professional ophthalmic dispensing education. Only

those educational programs as are available to all licensees

on a reasonable nondiscriminatory fee basis shall be

approved. Programs to be held within or outside this

Commonwealth may receive approval. The number of required

hours of study may not exceed those that are available at

approved courses held within this Commonwealth during the

applicable license renewal period. In cases of certified

illness or undue hardship, the board may waive the continuing

education requirement.

(13)  To certify, upon the written request of a licensee

and payment of the prescribed fee, that the licensee is

qualified for licensure and the practice of ophthalmic

dispensing in this Commonwealth.

(14)  To promulgate all rules and regulations necessary

to carry out the purposes of this act.

(15)  To administer and enforce the laws of this

Commonwealth relating to those activities involving

ophthalmic dispensing for which licensing is required under

this act and to instruct and require its agents to bring

prosecutions for unauthorized and unlawful practice.

(16)  To employ or contract, with the approval of the

Commissioner of Professional and Occupational Affairs, for

qualified ophthalmic dispensers to assist the board in the

conduct of the practical portions of the examinations

conducted by the board, for such reasonable compensation,

including expenses, as the board shall determine, in

accordance with section 812.1 of the act of April 9, 1929

(P.L.177, No.175), known as The Administrative Code of 1929.

(17)  To issue subpoenas upon application of an attorney

responsible for representing the Commonwealth in disciplinary

actions before the board for the purpose of investigating

alleged violations of the disciplinary provisions

administered by the board. The board shall have the power to

subpoena witnesses, to administer oaths, to examine witnesses

or to take testimony or compel the production of books,

records, papers and documents as it may deem necessary or

proper in and pertinent to any proceeding, investigation or

hearing held by the board. Ophthalmic dispensing records may

not be subpoenaed without consent of the patient or without

order of a court of competent jurisdiction on a showing that

the records are reasonably necessary for the conduct of the

investigation. The court may impose such limitations on the

scope of the subpoena as are necessary to prevent unnecessary

intrusion into patient confidential information. The board is

authorized to apply to Commonwealth Court to enforce its

subpoenas.

Section 5.  Reports to board.

An attorney who represents the Commonwealth in disciplinary

matters before the board shall notify the board immediately upon

receiving notification of an alleged violation of this act. The

board shall maintain current records of all reported alleged

violations and periodically review the records for the purpose

of determining that each alleged violation has been resolved in

a timely manner.

Section 6.  General qualifications for licensure.

(a)  General rule.--A license as an ophthalmic dispenser

shall be issued by the board to any person who files an

application, pays a fee of $50 and submits evidence under oath

satisfactory to the board that the applicant:

(1)  Is more than 18 years of age and of good moral

character.

(2)  Has graduated from high school or possesses a

General Educational Development certificate.

(3)  Has at least two years of satisfactory training and

experience in ophthalmic dispensing under the supervision of

an ophthalmic dispenser, physician, osteopath or optometrist

or is a graduate of an accepted school of ophthalmic

dispensing.

(4)  Has passed a satisfactory examination in ophthalmic

dispensing approved by the board.

(5)  Is not addicted to the use of alcohol or narcotics

or other habit-forming drugs.

(b)  Other requirements.--The board may establish further

requirements to be met by applicants before granting them the

right to take an examination.

(c)  Penalties for false statements.--An applicant who

knowingly makes a false statement of fact in an application for

examination shall be deemed to have violated this act and shall

be subject to the penalties specified in this act.

(d)  Grounds for refusal of license.--The board shall not

issue a license to an applicant who has been convicted of a

felony under the act of April 14, 1972 (P.L.233, No.64), known

as The Controlled Substance, Drug, Device and Cosmetic Act, or

of an offense under the laws of another jurisdiction which, if

committed in this Commonwealth, would be a felony under The

Controlled Substance, Drug, Device and Cosmetic Act, unless:

(1)  at least ten years have elapsed from the date of

conviction;

(2)  the applicant satisfactorily demonstrates to the

board that the applicant has made significant progress in

personal rehabilitation since the conviction such that

licensure of the applicant should not be expected to create a

substantial risk of harm to the health and safety of the

applicant's patients or the public or a substantial risk of

further criminal violations; and

(3)  the applicant otherwise satisfies the requirements

of this act.

Section 7.  Renewal of license.

(a)  General rule.--A person licensed by the board must apply

for renewal of the license by such methods as the board shall

determine by regulation, provided that the renewal period shall

not exceed two years.

(b)  Continuing education.--Beginning with the year 2010, a

license shall not be renewed by the board unless the ophthalmic

dispenser applying for renewal submits proof to the board that

during the two calendar years immediately preceding filing of

the application, the ophthalmic dispenser has satisfactorily

completed a minimum of 30 hours of continuing professional

ophthalmic dispensing education approved by the board. No credit

shall be given for any course in office management or practice

building.

(c)  Activity in other states, territories and countries.--

(1)  Any licensee of this Commonwealth who is also

licensed to practice ophthalmic dispensing in any other

state, territory or country shall report this information to

the board on the biennial renewal application. Any

disciplinary action taken in other states shall be reported

to the board on the biennial renewal application or within 90

days of final disposition, whichever is sooner.

(2)  Multiple licensure shall be noted on the licensee's

record by the board, and that state, territory or country

shall be notified by the board of any disciplinary action

taken against the licensee in this Commonwealth.

(d)  Inactive status.--

(1)  An ophthalmic dispenser who requests in writing to

place his license on inactive status may reactivate the

license after paying the required fees and showing proof of

meeting the continuing education requirement for the biennial

renewal period immediately preceding the request for

reactivation.

(2)  An ophthalmic dispenser who seeks to renew an

inactive license shall file with the board an affidavit

affirming that the ophthalmic dispenser has not practiced

ophthalmic dispensing in this Commonwealth during such period

the license was inactive.

Section 8.  Exemptions and exceptions.

(a)  General rule.--The licensure requirements of this act

shall not apply to ophthalmic dispensing officers in the medical

service of the armed forces of the United States, the United

States Public Health Service, the Veterans' Administration or

ophthalmic dispensers employed in Federal service, while in

discharge of their official duties.

(b)  Eligibility for exemption from examination.--The board

may, upon written application and payment of the regular

examination fee, issue a license without an examination to an

applicant who:

(1)  Is at least 21 years of age.

(2)  (i)  Has passed a standard examination in ophthalmic

dispensing in any other state or all parts of the

examination given by the National Board of Examiners in

Optometry, provided that the standards of the other state

or the National Board are equal to or exceed the

standards of this Commonwealth.

(ii)  Is licensed in another state and has practiced

in that state for a minimum of four years immediately

preceding the application.

(c)  Additional requirements.--The board may impose

additional uniform educational requirements as a requisite for

licensure.

(d)  Nonapplicability.--The provisions of this act shall not

apply to physicians licensed under the laws of this

Commonwealth.

(e)  Contact lens fittings.--

(1)  Nothing in this act shall be construed to prohibit

the fitting of contact lenses by a person acting under the

direction, personal supervision and control of a physician or

an optometrist within the standards of practice of that

respective profession.

(2)  Nothing in this act shall be construed to prohibit

any individual from fitting an appropriate contact lens for a

specific intended wearer and the complete assisting of such

wearer in the use of the contact lens, provided that:

(i)  The individual who fits the contact lens

successfully passed the examination administered by the

National Contact Lens Examiners as of July 14, 1986, and

is currently certified by the National Contact Lens

Examiners.

(ii)  The fitting is based on prescription of a

licensed physician or optometrist.

(iii)  The wearer is informed in writing to return to

the prescribing physician or optometrist for periodic

evaluation during the fit, at intervals not to exceed

three months or whenever the fitter feels professional

judgment is needed.

(iv)  The individual who passed the examination

administered by the National Contact Lens Examiners as of

July 14, 1986, submitted evidence of such successful

examination to the board by September 12, 1986.

(v)  The board shall compile and publish a list of

individuals who meet the requirements of this subsection

and shall enforce the provisions of this subsection.

(f)  Leasing space and franchise payments.--Nothing in this

act shall prohibit any optometrist from leasing space from an

establishment or from paying for franchise fees or other

services on a percentage of gross receipts basis.

Section 9.  Reasons for refusal, suspension, revocation or other

corrective actions.

(a)  General rule.--The board may refuse, revoke, limit or

suspend a license or take other corrective action authorized

under this act against an ophthalmic dispenser licensed to

practice ophthalmic dispensing in this Commonwealth for any or

all of the following reasons:

(1)  Failure of an applicant for licensure to demonstrate

the necessary qualifications as provided in this act or the

rules and regulations of the board.

(2)  Failure to permanently display in any location in

which he practices a license or a certified copy of a license

issued by the board.

(3)  Use of deceit or fraud in obtaining a license or in

the practice of ophthalmic dispensing.

(4)  Making misleading, deceptive, untrue or fraudulent

representations or advertisements in the practice of

ophthalmic dispensing.

(5)  Conviction of a felony or a crime involving moral

turpitude. Conviction shall include a finding or verdict of

guilt, an admission of guilt or a plea of nolo contendere.

(6)  Revocation, suspension or refusal to grant a license

to practice ophthalmic dispensing, or imposition of other

disciplinary action, by the proper licensing authority of

another state, territory or country.

(7)  (i)  Being unable to practice the profession with

reasonable skill and safety to patients by reason of

illness, addiction to drugs or alcohol, having been

convicted of a felonious act prohibited under the act of

April 14, 1972 (P.L.233, No.64), known as The Controlled

Substance, Drug, Device and Cosmetic Act, or convicted of

a felony relating to a controlled substance in a court of

law of the United States or any other state, territory,

possession or country, or if the applicant is or shall

become mentally incompetent.

(ii)  An applicant's statement on the application

declaring the absence of a conviction shall be deemed

satisfactory evidence of the absence of a conviction

unless the board has some evidence to the contrary.

(iii)  In enforcing this paragraph, the board shall,

upon probable cause, have authority to compel an

ophthalmic dispenser to submit to a mental or physical

examination by a physician or a psychologist approved by

the board.

(iv)  Failure of an ophthalmic dispenser to submit to

an examination when directed by the board, unless such

failure is due to circumstances beyond the ophthalmic

dispenser's control, shall constitute an admission of the

allegations against the ophthalmic dispenser, consequent

upon which a default and final order may be entered

without the taking of testimony or presentation of

evidence.

(v)  An ophthalmic dispenser affected under this

paragraph shall at reasonable intervals be afforded an

opportunity to demonstrate that the ophthalmic dispenser

can resume a competent practice of the profession with

reasonable skill and safety to patients.

(8)  Violation of a regulation promulgated or order

issued by the board in a previous disciplinary proceeding

against that licensee or applicant for licensure.

(9)  Knowingly aiding, assisting, procuring or advising

an unlicensed person or person who is in violation of this

act or the rules and regulations of the board to practice

ophthalmic dispensing.

(10)  Failure to conform to the acceptable and prevailing

standards of ophthalmic dispensing practice in rendering

professional service to a patient. Actual injury to a patient

need not be established.

(11)  Neglect of duty in the practice of ophthalmic

dispensing, which may include failure to refer a patient,

when appropriate, to a physician for consultation or further

treatment when an examination determines the presence of a

pathology.

(b)  Action authorized.--When the board finds that the

license of a person may be refused, revoked or suspended the

board may:

(1)  Refuse, revoke or suspend a license.

(2)  Administer a public reprimand.

(3)  Limit or otherwise restrict the licensee's practice

under this act.

(4)  Suspend any enforcement under this subsection and

place the licensee on probation, with the right to vacate the

probationary order and impose the enforcement.

(5)  Require a licensee to submit to the care, counseling

or treatment of a physician or a psychologist designated by

the board.

(6)  Restore or reissue, in its discretion, a suspended

license to practice ophthalmic dispensing and impose any

disciplinary or corrective measure which it might originally

have imposed.

(c)  Opportunity to defend.--A person affected by any action

of the board under this section shall be afforded an opportunity

to demonstrate that the person is no longer in violation of this

section.

(d)  Written complaints to be filed with board.--

(1)  A person may complain of a violation of the

provisions of this act or the rules and regulations of the

board by filing a written complaint with the board.

(2)  The board shall decide to dismiss the case, issue an

injunction or hold a hearing in accordance with the general

rules of administrative practice and procedure.

(3)  If the person filing the complaint is a member of

the board, the person shall disqualify himself from

participating as a member of the board in all procedures

related to the complaint.

(e)  Procedure and appeal.--Actions of the board shall be

taken subject to the right of notice, hearing, adjudication and

appeal accorded by law.

(f)  Waiting period for reinstatement.--

(1)  Unless ordered to do so by a court, the board shall

not reinstate the license of a person to practice as an

ophthalmic dispenser which has been revoked until at least

five years have elapsed from the effective date of the

revocation.

(2)  A person must apply for a license after such five-

year period in accordance with section 6 if the person

desires to practice ophthalmic dispensing at any time after

the revocation.

(g)  Automatic suspension.--

(1)  A license issued under this act shall automatically

be suspended upon:

(i)  the legal commitment of a licensee to an

institution because of mental incompetency from any cause

upon filing with the board a certified copy of such

commitment;

(ii)  conviction of a felony under the act of April

14, 1972 (P.L.233, No.64), known as The Controlled

Substance, Drug, Device and Cosmetic Act; or

(iii)  conviction of an offense under the laws of

another jurisdiction which, if committed in this

Commonwealth, would be a felony under The Controlled

Substance, Drug, Device and Cosmetic Act.

(2)  As used in this section the term "conviction" shall

include a judgment, an admission of guilt or a plea of nolo

contendere.

(3)  Automatic suspension under this subsection shall not

be stayed pending any appeal of a conviction. Restoration of

the license shall be made as provided in this act for

revocation or suspension of the license.

(h)  Temporary suspension.--

(1)  The board shall temporarily suspend a license under

circumstances as determined by the board to be an immediate

and clear danger to the public health or safety. The board

shall issue an order to that effect without a hearing, but

upon due notice to the licensee concerned, at the licensee's

last known address, shall include a written statement of all

allegations against the licensee.

(2)  The provisions of subsection (f) shall not apply to

temporary suspension.

(3)  The board shall commence formal action to suspend,

revoke or restrict the license of the person concerned as

otherwise provided for in this act.

(4)  All actions shall be taken promptly and without

delay. Within 30 days following the issuance of an order

temporarily suspending a license, registration or

certificate, the board shall conduct or cause to be conducted

a preliminary hearing to determine that there is a prima

facie case supporting the suspension.

(5)  The licensee whose license has been temporarily

suspended may be present at the preliminary hearing and may

be represented by counsel, cross-examine witnesses, inspect

physical evidence, call witnesses, offer evidence and

testimony and make a record of the proceedings.

(6)  If it is determined that there is not a prima facie

case, the suspended license shall be immediately restored.

The temporary suspension shall remain in effect until vacated

by the board but in no event longer than 180 days.

(i)  Penalty for refusal to return license.--The board shall

require a person whose license has been suspended or revoked to

return the license in such manner as the board directs. Failure

to surrender the license shall be a misdemeanor of the third

degree.

Section 10.  Impaired professionals.

(a)  Professional consultant to be appointed.--The board,

with the approval of the Commissioner of Professional and

Occupational Affairs, shall appoint and fix the compensation of

a professional consultant who is a licensee of the board or such

other professional as the board may determine with education and

experience in the identification, treatment and rehabilitation

of persons with physical or mental impairments. The consultant

shall be accountable to the board and treatment programs, such

as alcohol and drug treatment programs licensed by the

Department of Health, psychological counseling and impaired

professional support groups, which are approved by the board and

which provide services to licensees under this act.

(b)  Deferral or dismissal of corrective action.--

(1)  The board may defer and ultimately dismiss any of

the types of corrective action set forth under this act for

an impaired professional so long as the professional is

progressing satisfactorily in an approved treatment program,

provided that the provisions of this subsection shall not

apply to a professional convicted of a felonious act

prohibited under the act of April 14, 1972 (P.L.233, No.64),

known as The Controlled Substance, Drug, Device and Cosmetic

Act, or convicted of a felony relating to a controlled

substance in a court of law of the United States or any other

state, territory or country.

(2)  An approved program provider shall, upon request,

disclose to the consultant such information in its possession

regarding an impaired professional in treatment which the

program provider is not prohibited from disclosing by an act

of the Commonwealth, another state or the United States.

(3)  The duty of disclosure by an approved program

provider under paragraph (2) shall apply in the case of

impaired professionals who are the subject of a board

investigation or disciplinary proceeding and impaired

professionals who voluntarily enter a treatment program other

than under the provisions of this section but fail to

complete the program successfully or to adhere to an

aftercare plan developed by the program provider.

(c)  Agreement between board and impaired professional.--

(1)  An impaired professional who enrolls in an approved

treatment program shall enter into an agreement with the

board under which the professional's license shall be

suspended or revoked, but enforcement of that suspension or

revocation may be stayed for the length of time the

professional remains in the program and makes satisfactory

progress, complies with the terms of the agreement and

adheres to any limitations on his practice imposed by the

board to protect the public.

(2)  Failure to enter into such an agreement shall

disqualify the professional from the impaired professional

program and shall activate an immediate investigation and

disciplinary proceeding by the board.

(d)  Effect of unsatisfactory progress.--If, in the opinion

of the consultant after consultation with the provider, an

impaired professional who is enrolled in an approved treatment

program has not progressed satisfactorily, the consultant shall

disclose to the board all information in his possession

regarding said professional, and the board shall institute

proceedings to determine if the stay of the enforcement of the

suspension or revocation of the impaired professional's license

shall be vacated.

(e)  Civil immunity.--An approved program provider who makes

disclosure under this section shall not be subject to civil

liability for such disclosure or its consequences.

(f)  Duty to report.--

(1)  Any hospital or health care facility, peer or

colleague who has substantial evidence that a professional

has an active addictive disease for which the professional is

not receiving treatment, is diverting a controlled substance

or is mentally or physically incompetent to carry out the

duties of the professional's license shall make or cause to

be made a report to the board, provided that any person or

facility which acts in a treatment capacity to an impaired

professional in an approved treatment program is exempt from

the mandatory reporting requirements of this subsection.

(2)  Any person or facility that reports under this

section in good faith and without malice shall be immune from

any civil or criminal liability arising from such report.

(3)  Failure to provide such report within a reasonable

time from receipt of knowledge of impairment shall subject

the person or facility to a fine of not more than $1,000. The

board shall levy this penalty only after affording the

accused party the opportunity for a hearing as provided in 2

Pa.C.S. (relating to administrative law and procedure).

Section 11.  Violations and penalties.

(a)  General rule.--

(1)  It is unlawful for any person in this Commonwealth

to engage in the practice of ophthalmic dispensing or pretend

to have knowledge of any branch or branches of the practice

of ophthalmic dispensing or to hold himself forth as a

practitioner of ophthalmic dispensing, unless the person has

fulfilled the requirements of this act and received a license

to practice ophthalmic dispensing in this Commonwealth.

(2)  A person convicted of practicing ophthalmic

dispensing without a license commits a misdemeanor and shall,

on first offense, be subject to a fine of not more than

$1,000 or imprisonment of not more than six months, or both.

Conviction on each additional offense shall result in a fine

of not less than $2,000 and imprisonment of not less than six

months or more than one year.

(b)  Penalty for other violations.--A person convicted of

violating a provision of this act, other than of subsection (a),

commits a summary offense and shall be fined not more than $500.

(c)  Civil penalty.--

(1)  In addition to any other civil remedy or criminal

penalty provided for in this act, the board, by a vote of the

majority of the maximum number of the authorized membership

of the board as provided for by this act or by a vote of the

majority of the qualified and confirmed membership or a

minimum of six members, whichever is greater, may levy a

civil penalty of up to $1,000 on any current licensee who

violates any provision of this act or on any person who

practices ophthalmic dispensing without being properly

licensed to do so under this act.

(2)  The board shall levy this penalty only after

affording the accused party the opportunity for a hearing, as

provided in 2 Pa.C.S. (relating to administrative law and

procedure).

(d)  Injunctive relief.--

(1)  It shall be unlawful for any person to practice or

attempt to offer to practice ophthalmic dispensing without

having at the time of so doing a valid, unexpired, unrevoked

and unsuspended license issued under this act.

(2)  The unlawful practice of ophthalmic dispensing may

be enjoined by the courts on petition of the board or the

Commissioner of Professional and Occupational Affairs.

(3)  In any such proceeding, it shall not be necessary to

show that any person is individually injured by the actions

complained of.

(4)  If it is found that the respondent has engaged in

the unlawful practice of ophthalmic dispensing, the court

shall enjoin the respondent from so practicing unless the

respondent has been duly licensed.

(5)  Procedure in such cases shall be the same as in any

other injunction suit. The remedy by injunction hereby given

is in addition to any other civil or criminal prosecution and

punishment.

(e)  Deposit of fines and civil penalties.--All fines and

civil penalties imposed in accordance with this section shall be

paid into the Professional Licensure Augmentation Account.

Section 12.  Fees and other moneys.

(a)  General rule.--The board shall fix or change fees for

initial licensure, examination, biennial license renewal,

verification of licensure or grades to other jurisdictions,

initial and renewal certified copies of licenses and biennial

renewal of branch offices.

(b)  Deposit of collected moneys.--Moneys collected under the

provisions of this act shall be paid into the Professional

Licensure Augmentation Account and disbursed according to law.

(c)  Fixing of fees.--

(1)  All fees required under this act shall be fixed by

the board by regulation and shall be subject to the act of

June 25, 1982 (P.L.633, No.181), known as the Regulatory

Review Act.

(2)  If the revenues raised by fees, fines and civil

penalties imposed under this act are insufficient to meet

expenditures over a two-year period, the board shall increase

those fees by regulation so that the projected revenues will

meet or exceed projected expenditures.

(d)  Increase of fees by Bureau of Professional and

Occupational Affairs.--If the Bureau of Professional and

Occupational Affairs determines that the fees established by the

board under subsection (c) are inadequate to meet the minimum

enforcement efforts required by this act, then the bureau, after

consultation with the board and subject to the Regulatory Review

Act, shall increase the fees by regulation in an amount that

adequate revenues are raised to meet the required enforcement

effort.

Section 30.  Effective date.

This act shall take effect in 60 days.