PRINTER'S NO. 2139
No. 1680 Session of 1985
INTRODUCED BY LAUGHLIN, BURNS, TRUMAN, DEAL, GALLAGHER AND
DURHAM, SEPTEMBER 30, 1985
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, SEPTEMBER 30, 1985
AN ACT
1 Amending the act of June 6, 1980 (P.L.197, No.57), entitled "An
2 act regulating the licensure and practice of optometry,
3 making repeals and providing penalties," reestablishing the
4 State Board of Optometric Examiners; providing for its
5 composition, powers and duties; providing for an Advisory
6 Committee on Eye Care Practice; further providing for
7 revocation and suspension of licenses; providing for fees;
8 and making repeals.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 2 of the act of June 6, 1980 (P.L.197,
12 No.57), known as the Optometric Practice and Licensure Act, is
13 amended to read:
14 Section 2. Definitions.
15 The following words and phrases when used in this act shall
16 have, unless the context clearly indicates otherwise, the
17 meanings given to them in this section:
18 "Advisory Committee on Continuing Professional Education."
19 An advisory committee established pursuant to section 3 to make
20 recommendations to the board relating to continuing professional
1 education.
2 "Board." The State Board of Optometrical Examiners
3 established pursuant to section 415, act of April 9, 1929
4 (P.L.177, No.175), known as "The Administrative Code of 1929,"
5 or any successor board.
6 "Examination and diagnosis." Any examination or diagnostic
7 means or method compatible with optometric education and
8 professional competence. The term shall encompass the use of
9 pharmaceutical agents for diagnostic purposes classified as
10 miotics, mydriatics, cycloplegics, topical anesthetics and dyes
11 when applied topically to the eye, which pharmaceutical agents
12 shall be approved by the Secretary of Health and, subject to the
13 rules and regulations of the board, provided however that with
14 respect to optometrists licensed before March 1, 1974 only such
15 optometrists who have satisfactorily completed a course in
16 pharmacology as it applies to optometry, with particular
17 emphasis on the topical application of diagnostic pharmaceutical
18 agents to the eye, approved by the board shall be permitted to
19 use diagnostic pharmaceutical agents topically in the practice
20 of optometry.
21 "Fitting of contact lenses." A procedure in which a
22 prescribed contact lens is placed upon the eye of a patient and
23 the lens-cornea relationship is evaluated with the use of a
24 biomicroscope or slit-lamp.
25 "Optometrist." Any person who, following formal and
26 recognized training in the art and science of optometry has
27 received a doctor of optometry degree from an accredited
28 institution and is qualified to seek or has acquired a license
29 to practice the profession of optometry. An optometrist shall be
30 identified either by "Doctor of Optometry," "O.D.," or "Dr."
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1 followed by "Optometrist."
2 "Practice of optometry." The use of any and all means or
3 methods for the examination, diagnosis and except for drugs or
4 surgery, treatment of conditions of the human visual system and
5 shall include the examination for, and adapting and fitting of,
6 any and all kinds and types of lenses including contact lenses.
7 "Treatment." The use of any and all preventive and
8 corrective means and methods, except for drugs or surgery, for
9 aid to the human visual system and shall include but is not
10 limited to the adapting and fitting of any and all kinds and
11 types of lenses and devices including contact lenses and the
12 provision of vision developmental and perceptual therapy or
13 ocular exercise for aid to or enhancement of visual functions.
14 Section 2. The act is amended by adding a section to read:
15 Section 2.1. State Board of Optometrical Examiners.
16 (a) The State Board of Optometrical Examiners shall consist
17 of thirteen members, all of whom shall be residents of
18 Pennsylvania. Seven members shall be optometrists, who are
19 licensed to practice in Pennsylvania and who have been
20 practicing optometry in Pennsylvania for at least the five-year-
21 period immediately preceding their appointment. Three members
22 shall be persons representing the public-at-large, one member
23 shall be the Commissioner of Professional and Occupational
24 Affairs, one member shall be the Director of the Bureau of
25 Consumer Protection in the Office of Attorney General or his
26 designee, and one member shall by a physician and a certified
27 ophthalmologist. The members of the board shall be appointed by
28 the Governor. No member of the board shall be a member of the
29 faculty of any undergraduate school or college teaching
30 optometry.
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1 (b) Professional members appointed after the effective date
2 of this act as successors to professional members whose terms
3 expired prior to the effective date of this act shall serve the
4 following terms: one shall serve one year; one shall serve two
5 years; two shall serve three years, and the remainder shall
6 serve four years. All other professional and public members
7 shall serve for terms of four years. No member may serve more
8 than two consecutive terms. A member may continue to serve for a
9 period not to exceed six months following the expiration of his
10 term if a successor has not been duly appointed and qualified
11 according to law. Any member whose term expired prior to the
12 effective date of this act may continue to serve for no more
13 than six months following the effective date of this act.
14 (c) Seven members of the board shall constitute a quorum.
15 The board shall select, from among its membership, a chairman, a
16 vice-chairman and a secretary.
17 (d) Each public and professional member of the board shall
18 be paid reasonable traveling, hotel and other necessary expenses
19 and per diem compensation at the rate of $60 for each day of
20 actual service while on board business.
21 (e) A member who fails to attend three consecutive meetings
22 shall forfeit his seat unless the Commissioner of Professional
23 and Occupational Affairs, upon written request from the member,
24 finds that the member should be excused from a meeting because
25 of illness or the death of an immediate family member.
26 (f) In the event that a member of the board dies or resigns
27 during a term of office, a successor shall be appointed in the
28 same manner and with the same qualifications as set forth in
29 subsection (a) and shall hold office for the unexpired term.
30 Section 3. Section 3(a) of the act is amended by adding
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1 paragraphs to read:
2 Section 3. Powers and duties of the board.
3 (a) The board shall have the following duties:
4 * * *
5 (6) To submit annually to the House and Senate
6 Appropriations Committees, 15 days after the Governor has
7 submitted his budget to the General Assembly, a copy of the
8 budget request for the upcoming fiscal year which the board
9 previously submitted to the Department of State.
10 (7) To submit annually a report to the Professional
11 Licensure Committee of the House of Representatives and to
12 the Consumer Protection and Professional Licensure Committee
13 of the Senate a description of the types of complaints
14 received, status of cases, board action which has been taken
15 and the length of time from the initial complaint to final
16 board resolution.
17 (8) To require all optometrists to provide to their
18 patients information on the existence, powers, functions and
19 duties of the board, including the procedure for bringing a
20 complaint to the board.
21 * * *
22 Section 4. The act is amended by adding a section to read:
23 Section 3.1. Advisory Committee on Eye Care Practice.
24 (a) The Advisory Committee on Eye Care Practice shall
25 consist of two optometrists licensed to practice in
26 Pennsylvania, two physicians certified as ophthalmologists, one
27 physician certified as a pharmacologist, and two persons engaged
28 in the business of dispensing frames, lenses and eyeglasses. The
29 members of the committee shall be appointed by the Governor and
30 shall serve for a term of two years.
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1 (b) The committee shall investigate the propriety and
2 advisability of permitting optometrists to utilize diagnostic
3 pharmaceutical agents, which have not been approved by the
4 Secretary of Health under this act, and shall also investigate
5 the propriety and advisability of State certification or
6 licensure of persons other than optometrists or physicians to
7 dispense, adapt and fit frames, eyeglasses and lenses, including
8 contact lenses. The committee shall issue a report of its
9 findings and recommendations to the board and to the General
10 Assembly within two years of the effective date of this act. The
11 committee shall provide interim reports every six months upon
12 the status of its investigation concerning the certification or
13 licensure of persons to fit frames, eyeglasses and lenses to the
14 majority and minority chairmen of the House Consumer Affairs
15 Committee and the Senate Consumer Affairs and Professional
16 Licensure Committee.
17 (c) The member of the committee who is a pharmacologist
18 shall not participate in the deliberations of the committee
19 concerning the certification or licensure of persons to fit
20 frames, eyeglasses and lenses. The members of the committee who
21 are engaged in the business of dispensing frames, lenses and
22 eyeglasses shall not participate in the deliberations of the
23 committee concerning the use of diagnostic pharmaceutical agents
24 by optometrists.
25 Section 5. Sections 6, 7, 8 and 9 of the act are amended by
26 adding subsections to read:
27 Section 6. Exemptions and exceptions.
28 * * *
29 (g) Nothing in this act shall prohibit the fitting of
30 contact lenses by a person acting under the supervision or
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1 control of a physician or an optometrist.
2 Section 7. Refusal, revocation or suspension of license.
3 * * *
4 (f) Unless ordered to do so by a court, the board shall not
5 reinstate the license of a person to practice as an optometrist
6 which has been revoked until at least five years have elapsed
7 from the effective date of the revocation. A person shall be
8 required to apply for a license after such five-year period if
9 he desires to practice optometry at any time after such
10 revocation.
11 (g) A license issued under this act shall automatically be
12 suspended upon the legal commitment of a licensee to an
13 institution because of mental incompetency from any cause upon
14 filing with the board a certified copy of such commitment;
15 conviction of a felony under the act of April 14, 1972 (P.L.233,
16 No.65), known as "The Controlled Substance, Drug, Device and
17 Cosmetic Act"; or conviction of an offense under the laws of
18 another jurisdiction which, if committed in Pennsylvania, would
19 be a felony under "The Controlled Substance, Drug, Device and
20 Cosmetic Act." As used in this section the term "conviction"
21 shall include a judgment, an admission of guilt or a plea of
22 nolo contendere. Automatic suspension under this section shall
23 not be stayed pending any appeal of a conviction. Restoration of
24 such license shall be made as provided in this act for
25 revocation or suspension of such license.
26 (h) The board shall temporarily suspend a license under
27 circumstances as determined by the board to be an immediate and
28 clear danger to the public health or safety. The board shall
29 issue an order to that effect without a hearing, but upon due
30 notice to the licensee concerned at his last known address,
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1 which shall include a written statement of all allegations
2 against the licensee. The provisions of section 7(f) shall not
3 apply to temporary suspension. The board shall thereupon
4 commence formal action to suspend, revoke and restrict the
5 license of the person concerned as otherwise provided for in
6 this act. All actions shall be taken promptly and without delay.
7 Within 30 days following the issuance of an order temporarily
8 suspending a license, registration or certificate, the board
9 shall conduct or cause to be conducted, a preliminary hearing to
10 determine that there is a prima facie case supporting the
11 suspension. The licensee whose license has been temporarily
12 suspended may be present at the preliminary hearing and may be
13 represented by counsel, cross-examine witnesses, inspect
14 physical evidence, call witnesses, offer evidence and testimony
15 and make a record of the proceedings. If it is determined there
16 is not a prima facie case, the suspended license shall be
17 immediately restored. The temporary suspension shall remain in
18 effect until vacated by the board, but in no event longer than
19 180 days.
20 Section 8. Violations and penalties.
21 * * *
22 (c) In addition to any other civil remedy or criminal
23 penalty provided for in this act, the board, by a vote of the
24 majority of the maximum number of the authorized membership of
25 the board as provided for by this act or by a vote of the
26 majority of the qualified and confirmed membership or a minimum
27 of six members, whichever is greater, may levy a civil penalty
28 of up to $1,000 on any current licensee who violates any
29 provision of this act or on any person who practices optometry
30 without being properly licensed to do so under this act. The
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1 board shall levy this penalty only after affording the accused
2 party the opportunity for a hearing, as provided in 2 Pa.C.S.
3 (relating to administrative law and procedure).
4 (d) All fines and civil penalties imposed in accordance with
5 this section shall be paid into the Professional Licensure
6 Augmentation Account.
7 Section 9. Fees and other moneys.
8 * * *
9 (c) All fees required under this act shall be fixed by the
10 board by regulation and shall be subject to the act of June 25,
11 1982 (P.L.633, No.181), known as the "Regulatory Review Act." If
12 the revenues raised by fees, fines and civil penalties imposed
13 pursuant to this act are not sufficient to meet expenditures
14 over a two-year period, the board shall increase those fees by
15 regulation so that the projected revenues will meet or exceed
16 projected expenditures.
17 (d) If the Bureau of Professional and Occupational Affairs
18 determines that the fees established by the board under
19 subsection (c) are inadequate to meet the minimum enforcement
20 efforts required by this act, then the bureau, after
21 consultation with the board and subject to the "Regulatory
22 Review Act," shall increase the fees by regulation in an amount
23 that adequate revenues are raised to meet the required
24 enforcement effort.
25 (e) The fees established under this act shall be sufficient
26 to enable the board to secure such investigatory and prosecutory
27 staff as necessary to pursue appropriate legal action against
28 those persons engaged in the practice of optometry in
29 Pennsylvania without being licensed as required by this act and
30 against any person who violates any other provision of this act.
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1 Section 6. This act with respect to the State Board of
2 Optometrical Examiners constitutes the legislation necessary to
3 reestablish an agency under the act of December 22, 1981
4 (P.L.508, No.142), known as the Sunset Act.
5 Section 7. The presently confirmed members of the State
6 Board of Optometrical Examiners constituted under section 415 of
7 the act of April 9, 1929 (P.L.177, No.175), known as The
8 Administrative Code of 1929, as of December 31, 1985, shall
9 continue to serve as board members until their present terms of
10 office expire.
11 Section 8. Each rule, regulation or fee of the board in
12 effect on the effective date of this act shall remain in effect
13 after such date until amended by the board, provided that the
14 board shall immediately initiate the repeal or amendment of any
15 rule or regulation which is inconsistent with the provisions of
16 this act.
17 Section 9. The State Board of Optometrical Examiners shall
18 continue together with its statutory functions and duties until
19 December 31, 1991, when it shall terminate and go out of
20 existence unless reestablished or continued by the General
21 Assembly. Evaluation and review, termination, reestablishment
22 and continuation of the board beyond December 31, 1991, shall be
23 conducted pursuant to the act of December 22, 1981 (P.L.508,
24 No.142), known as the Sunset Act.
25 Section 10. (a) Section 415 of the act of April 9, 1929
26 (P.L.177, No.175), known as The Administrative Code of 1929, is
27 repealed.
28 (b) All other acts and parts of acts are repealed insofar as
29 they are inconsistent with this act.
30 Section 11. This act shall take effect January 1, 1986.
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