PRIOR PRINTER'S NO. 2139 PRINTER'S NO. 2570
No. 1680 Session of 1985
INTRODUCED BY LAUGHLIN, BURNS, TRUMAN, DEAL, GALLAGHER AND
DURHAM, SEPTEMBER 19, 1985
AS REPORTED FROM COMMITTEE ON CONSUMER AFFAIRS, HOUSE OF
REPRESENTATIVES, AS AMENDED, NOVEMBER 26, 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 Optometrical Examiners; providing for its
5 composition, powers and duties; providing for an Advisory <--
6 Committee on Eye Care Practice; further providing for
7 RENEWAL, revocation and suspension of licenses; providing for <--
8 fees; 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."
19850H1680B2570 - 2 -
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 FOUR <--
22 members shall be persons representing the public-at-large, one
23 member shall be the Commissioner of Professional and
24 Occupational Affairs, AND one member shall be the Director of <--
25 the Bureau of Consumer Protection in the Office of Attorney
26 General or his designee, and one member shall be a physician and <--
27 a certified ophthalmologist. The PROFESSIONAL AND PUBLIC members <--
28 of the board shall be appointed by the Governor WITH THE ADVICE <--
29 AND CONSENT OF A MAJORITY OF THE SENATE. No member of the board
30 shall be a member of the faculty of any undergraduate school or
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1 college teaching optometry.
2 (b) Professional members appointed after the effective date
3 of this act as successors to professional members whose terms
4 expired prior to the effective date of this act shall serve the
5 following terms: one shall serve one year; one shall serve two
6 years; two shall serve three years, and the remainder shall
7 serve four years. All other professional and public members
8 shall serve for terms of four years. No member may serve more
9 than two consecutive terms. A member may continue to serve for a
10 period not to exceed six months following the expiration of his
11 term if a successor has not been duly appointed and qualified
12 according to law. Any member whose term expired prior to the
13 effective date of this act may continue to serve for no more
14 than six months following the effective date of this act.
15 (c) Seven members of the board shall constitute a quorum.
16 The board shall select, from among its membership, a chairman, a
17 vice-chairman and a secretary.
18 (d) Each public and professional member of the board shall
19 be paid reasonable traveling, hotel and other necessary expenses
20 and per diem compensation at the rate of $60 for each day of
21 actual service while on board business.
22 (e) A member who fails to attend three consecutive meetings
23 shall forfeit his seat unless the Commissioner of Professional
24 and Occupational Affairs, upon written request from the member,
25 finds that the member should be excused from a meeting because
26 of illness or the death of an immediate family member.
27 (f) In the event that a member of the board dies or resigns
28 during a term of office, a successor shall be appointed in the
29 same manner and with the same qualifications as set forth in
30 subsection (a) and shall hold office for the unexpired term.
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1 Section 3. Section 3(a) 3(A)(2) of the act is amended AND <--
2 SUBSECTIONS (A) AND (B) ARE AMENDED by adding paragraphs to
3 read:
4 Section 3. Powers and duties of the board.
5 (a) The board shall have the following duties:
6 * * *
7 (2) TO PRESCRIBE THE SUBJECTS TO BE TESTED, AUTHORIZE <--
8 WRITTEN AND PRACTICAL PORTIONS OF THE EXAMINATION AND
9 [CONDUCT] CONTRACT WITH A PROFESSIONAL TESTING ORGANIZATION
10 FOR EXAMINATIONS OF QUALIFIED APPLICANTS FOR LICENSURE AT
11 LEAST TWICE ANNUALLY AT SUCH TIMES AND PLACES AS DESIGNATED
12 BY THE BOARD. ALL WRITTEN, ORAL AND PRACTICAL EXAMINATIONS
13 SHALL BE PREPARED AND ADMINISTERED BY A QUALIFIED AND
14 APPROVED PROFESSIONAL TESTING ORGANIZATION IN ACCORDANCE WITH
15 SECTION 812.1 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175),
16 KNOWN AS "THE ADMINISTRATIVE CODE OF 1929," EXCEPT THAT
17 NEITHER THE ORAL NOR THE PRACTICAL EXAMINATION SHALL BE
18 SUBJECT TO SECTION 812.1 UNTIL SUCH EXAMINATION IS AVAILABLE
19 FROM A TESTING ORGANIZATION.
20 * * *
21 (6) To submit annually to the House and Senate
22 Appropriations Committees, 15 days after the Governor has
23 submitted his budget to the General Assembly, a copy of the
24 budget request for the upcoming fiscal year which the board
25 previously submitted to the Department of State.
26 (7) To submit annually a report to the Professional <--
27 Licensure Committee of the House of Representatives and to
28 the Consumer Protection and Professional Licensure Committee
29 of the Senate A REPORT CONTAINING a description of the types <--
30 of complaints received, status of cases, board action which
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1 has been taken and the length of time from the initial
2 complaint to final board resolution.
3 (8) To require all optometrists to provide to their
4 patients information on the existence, powers, functions and
5 duties of the board, including the procedure for bringing a
6 complaint to the board.
7 * * * <--
8 (B) THE BOARD SHALL HAVE THE FOLLOWING POWERS: <--
9 * * *
10 (16) TO EMPLOY OR CONTRACT FOR QUALIFIED OPTOMETRISTS OR
11 PHYSICIANS TO ASSIST THE BOARD IN THE CONDUCT OF THE
12 PRACTICAL PORTIONS OF THE EXAMINATIONS CONDUCTED BY THE
13 BOARD, FOR SUCH REASONABLE COMPENSATION, INCLUDING EXPENSES,
14 AS THE BOARD SHALL DETERMINE, IN ACCORDANCE WITH SECTION
15 812.1 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS
16 "THE ADMINISTRATIVE CODE OF 1929."
17 (17) TO ISSUE SUBPOENAS UPON APPLICATION OF AN ATTORNEY
18 RESPONSIBLE FOR REPRESENTING DISCIPLINARY ACTIONS BEFORE THE
19 BOARD FOR THE PURPOSE OF INVESTIGATING ALLEGED VIOLATIONS OF
20 THE DISCIPLINARY PROVISIONS ADMINISTERED BY THE BOARD. THE
21 BOARD SHALL HAVE THE POWER TO SUBPOENA WITNESSES, TO
22 ADMINISTER OATHS, TO EXAMINE WITNESSES OR TO TAKE TESTIMONY
23 OR COMPEL THE PRODUCTION OF BOOKS, RECORDS, PAPERS AND
24 DOCUMENTS AS IT MAY DEEM NECESSARY OR PROPER IN AND PERTINENT
25 TO ANY PROCEEDING, INVESTIGATION OR HEARING HELD BY IT.
26 OPTOMETRIC RECORDS MAY NOT BE SUBPOENAED WITHOUT CONSENT OF
27 THE PATIENT OR WITHOUT ORDER OF A COURT OF COMPETENT
28 JURISDICTION ON A SHOWING THAT THE RECORDS ARE REASONABLY
29 NECESSARY FOR THE CONDUCT OF THE INVESTIGATION. THE COURT MAY
30 IMPOSE SUCH LIMITATIONS ON THE SCOPE OF THE SUBPOENA AS ARE
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1 NECESSARY TO PREVENT UNNECESSARY INTRUSION INTO PATIENT
2 CONFIDENTIAL INFORMATION. THE BOARD IS AUTHORIZED TO APPLY TO
3 COMMONWEALTH COURT TO ENFORCE ITS SUBPOENAS.
4 Section 4. The act is amended by adding a section to read: <--
5 Section 3.1. Advisory Committee on Eye Care Practice.
6 (a) The Advisory Committee on Eye Care Practice shall
7 consist of two optometrists licensed to practice in
8 Pennsylvania, two physicians certified as ophthalmologists, one
9 physician certified as a pharmacologist, and two persons engaged
10 in the business of dispensing frames, lenses and eyeglasses. The
11 members of the committee shall be appointed by the Governor and
12 shall serve for a term of two years.
13 (b) The committee shall investigate the propriety and
14 advisability of permitting optometrists to utilize diagnostic
15 pharmaceutical agents, which have not been approved by the
16 Secretary of Health under this act, and shall also investigate
17 the propriety and advisability of State certification or
18 licensure of persons other than optometrists or physicians to
19 dispense, adapt and fit frames, eyeglasses and lenses, including
20 contact lenses. The committee shall issue a report of its
21 findings and recommendations to the board and to the General
22 Assembly within two years of the effective date of this act. The
23 committee shall provide interim reports every six months upon
24 the status of its investigation concerning the certification or
25 licensure of persons to fit frames, eyeglasses and lenses to the
26 majority and minority chairmen of the House Consumer Affairs
27 Committee and the Senate Consumer Protection and Professional
28 Licensure Committee.
29 (c) The member of the committee who is a pharmacologist
30 shall not participate in the deliberations of the committee
19850H1680B2570 - 7 -
1 concerning the certification or licensure of persons to fit
2 frames, eyeglasses and lenses. The members of the committee who
3 are engaged in the business of dispensing frames, lenses and
4 eyeglasses shall not participate in the deliberations of the
5 committee concerning the use of diagnostic pharmaceutical agents
6 by optometrists.
7 Section 5 4. Sections 5, 6, 7, 8 and 9 of the act are <--
8 amended by adding subsections to read:
9 SECTION 5. RENEWAL OF LICENSE. <--
10 * * *
11 (C) ANY LICENSEE OF THIS COMMONWEALTH WHO IS ALSO LICENSED
12 TO PRACTICE OPTOMETRY IN ANY OTHER STATE, TERRITORY OR COUNTRY
13 SHALL REPORT THIS INFORMATION TO THE BOARD ON THE BIENNIAL
14 RENEWAL APPLICATION. ANY DISCIPLINARY ACTION TAKEN IN OTHER
15 STATES MUST BE REPORTED TO THE BOARD ON THE BIENNIAL RENEWAL
16 APPLICATION. MULTIPLE LICENSURE SHALL BE NOTED ON THE LICENSEE'S
17 RECORD BY THE BOARD AND SUCH STATE, TERRITORY OR COUNTRY SHALL
18 BE NOTIFIED BY THE BOARD OF ANY DISCIPLINARY ACTION TAKEN
19 AGAINST SAID LICENSEE IN THIS COMMONWEALTH.
20 Section 6. Exemptions and exceptions.
21 * * *
22 (g) Nothing in this act shall prohibit the fitting of
23 contact lenses by a person acting under the supervision or
24 control of a physician or an optometrist.
25 (H) NOTHING IN THIS ACT SHALL PROFIT ANY INDIVIDUAL FROM <--
26 FITTING AN APPROPRIATE CONTACT LENS FOR A SPECIFIC INTENDED
27 WEARER AND THE COMPLETE ASSISTING OF SUCH WEARER IN THE USE OF
28 THE CONTACT LENS IF THE FOLLOWING CONDITIONS ARE MET:
29 (1) THE INDIVIDUAL WHO FITS THE CONTACT LENS HAS
30 SUCCESSFULLY PASSED THE EXAMINATION ADMINISTERED BY THE
19850H1680B2570 - 8 -
1 NATIONAL CONTACT LENS EXAMINERS AS OF THE EFFECTIVE DATE OF
2 THIS ACT.
3 (2) THE FITTING IS BASED ON PRESCRIPTION OF A LICENSED
4 OPHTHALMOLOGIST OR OPTOMETRIST.
5 (3) THE WEARER IS INFORMED IN WRITING TO RETURN TO THE
6 PRESCRIBING OPHTHALMOLOGIST OR OPTOMETRIST FOR PERIODIC
7 EVALUATION DURING THE FIT, AT INTERVALS NOT TO EXCEED THREE
8 MONTHS OR WHENEVER THE FITTER FEELS PROFESSIONAL JUDGMENT IS
9 NEEDED.
10 (4) THE INDIVIDUAL WHO HAS PASSED THE EXAMINATION
11 ADMINISTERED BY THE NATIONAL CONTACT LENS EXAMINERS AS OF THE
12 EFFECTIVE DATE OF THIS ACT SUBMITS EVIDENCE OF SUCH
13 SUCCESSFUL EXAMINATION TO THE BOARD WITHIN 60 DAYS.
14 (5) THE BOARD SHALL COMPILE AND PUBLISH A LIST OF SUCH
15 INDIVIDUALS AND SHALL ENFORCE THE PROVISIONS OF THIS
16 SUBSECTION.
17 (I) NOTHING IN THIS ACT SHALL PROHIBIT ANY OPTOMETRIST FROM
18 LEASING SPACE FROM AN ESTABLISHMENT OR FROM PAYING FOR FRANCHISE
19 FEES OR OTHER SERVICES ON A PERCENTAGE OF GROSS RECEIPTS BASIS.
20 Section 7. Refusal, revocation or suspension of license.
21 * * *
22 (f) Unless ordered to do so by a court, the board shall not
23 reinstate the license of a person to practice as an optometrist
24 which has been revoked until at least five years have elapsed
25 from the effective date of the revocation. A person shall be
26 required to apply for a license after such five-year period IN <--
27 ACCORDANCE WITH SECTION 4 if he desires to practice optometry at
28 any time after such revocation.
29 (g) A license issued under this act shall automatically be
30 suspended upon the legal commitment of a licensee to an
19850H1680B2570 - 9 -
1 institution because of mental incompetency from any cause upon
2 filing with the board a certified copy of such commitment;
3 conviction of a felony under the act of April 14, 1972 (P.L.233,
4 No.65), known as "The Controlled Substance, Drug, Device and
5 Cosmetic Act"; or conviction of an offense under the laws of
6 another jurisdiction which, if committed in Pennsylvania, would
7 be a felony under "The Controlled Substance, Drug, Device and
8 Cosmetic Act." As used in this section the term "conviction"
9 shall include a judgment, an admission of guilt or a plea of
10 nolo contendere. Automatic suspension under this section shall
11 not be stayed pending any appeal of a conviction. Restoration of
12 such license shall be made as provided in this act for
13 revocation or suspension of such license.
14 (h) The board shall temporarily suspend a license under
15 circumstances as determined by the board to be an immediate and
16 clear danger to the public health or safety. The board shall
17 issue an order to that effect without a hearing, but upon due
18 notice to the licensee concerned at his last known address,
19 which shall include a written statement of all allegations
20 against the licensee. The provisions of section 7(f) shall not
21 apply to temporary suspension. The board shall thereupon
22 commence formal action to suspend, revoke and OR restrict the <--
23 license of the person concerned as otherwise provided for in
24 this act. All actions shall be taken promptly and without delay.
25 Within 30 days following the issuance of an order temporarily
26 suspending a license, registration or certificate, the board
27 shall conduct or cause to be conducted, a preliminary hearing to
28 determine that there is a prima facie case supporting the
29 suspension. The licensee whose license has been temporarily
30 suspended may be present at the preliminary hearing and may be
19850H1680B2570 - 10 -
1 represented by counsel, cross-examine witnesses, inspect
2 physical evidence, call witnesses, offer evidence and testimony
3 and make a record of the proceedings. If it is determined THAT <--
4 there is not a prima facie case, the suspended license shall be
5 immediately restored. The temporary suspension shall remain in
6 effect until vacated by the board, but in no event longer than
7 180 days.
8 Section 8. Violations and penalties.
9 * * *
10 (c) In addition to any other civil remedy or criminal
11 penalty provided for in this act, the board, by a vote of the
12 majority of the maximum number of the authorized membership of
13 the board as provided for by this act or by a vote of the
14 majority of the qualified and confirmed membership or a minimum
15 of six members, whichever is greater, may levy a civil penalty
16 of up to $1,000 on any current licensee who violates any
17 provision of this act or on any person who practices optometry
18 without being properly licensed to do so under this act. The
19 board shall levy this penalty only after affording the accused
20 party the opportunity for a hearing, as provided in 2 Pa.C.S.
21 (relating to administrative law and procedure).
22 (d) All fines and civil penalties imposed in accordance with
23 this section shall be paid into the Professional Licensure
24 Augmentation Account.
25 Section 9. Fees and other moneys.
26 * * *
27 (c) All fees required under this act shall be fixed by the
28 board by regulation and shall be subject to the act of June 25,
29 1982 (P.L.633, No.181), known as the "Regulatory Review Act." If
30 the revenues raised by fees, fines and civil penalties imposed
19850H1680B2570 - 11 -
1 pursuant to this act are not sufficient to meet expenditures
2 over a two-year period, the board shall increase those fees by
3 regulation so that the projected revenues will meet or exceed
4 projected expenditures.
5 (d) If the Bureau of Professional and Occupational Affairs
6 determines that the fees established by the board under
7 subsection (c) are inadequate to meet the minimum enforcement
8 efforts required by this act, then the bureau, after
9 consultation with the board and subject to the "Regulatory
10 Review Act," shall increase the fees by regulation in an amount
11 that adequate revenues are raised to meet the required
12 enforcement effort.
13 (e) The fees established under this act shall be sufficient
14 to enable the board to secure such investigatory and prosecutory
15 staff as IS necessary to pursue appropriate legal action against <--
16 those persons engaged in the practice of optometry in
17 Pennsylvania without being licensed as required by this act and
18 against any person who violates any other provision of this act.
19 Section 6 5. This act with respect to the State Board of <--
20 Optometrical Examiners constitutes the legislation necessary to
21 reestablish an agency under the act of December 22, 1981
22 (P.L.508, No.142), known as the Sunset Act.
23 Section 7 6. The presently confirmed members of the State <--
24 Board of Optometrical Examiners constituted under section 415 of
25 the act of April 9, 1929 (P.L.177, No.175), known as The
26 Administrative Code of 1929, as of December 31, 1985, shall
27 continue to serve as board members until their present terms of
28 office expire.
29 Section 8 7. Each rule, regulation or fee of the board in <--
30 effect on the effective date of this act shall remain in effect
19850H1680B2570 - 12 -
1 after such date until amended by the board, provided that the
2 board shall immediately initiate the repeal or amendment of any
3 rule or regulation which is inconsistent with the provisions of
4 this act.
5 Section 9 8. The State Board of Optometrical Examiners shall <--
6 continue together with its statutory functions and duties until
7 December 31, 1991, when it shall terminate and go out of
8 existence unless reestablished or continued by the General
9 Assembly. Evaluation and review, termination, reestablishment
10 and continuation of the board beyond December 31, 1991, shall be
11 conducted pursuant to the act of December 22, 1981 (P.L.508,
12 No.142), known as the Sunset Act.
13 Section 10 9. (a) Section 415 of the act of April 9, 1929 <--
14 (P.L.177, No.175), known as The Administrative Code of 1929, is
15 repealed.
16 (b) All other acts and parts of acts are repealed insofar as
17 they are inconsistent with this act.
18 Section 11 10. This act shall take effect January 1, 1986. <--
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