SENATE AMENDED
PRIOR PRINTER'S NOS. 2139, 2570, 3303 PRINTER'S NO. 3359
No. 1680 Session of 1985
INTRODUCED BY LAUGHLIN, BURNS, TRUMAN, DEAL, GALLAGHER AND
DURHAM, SEPTEMBER 19, 1985
AS AMENDED ON SECOND CONSIDERATION, IN SENATE, APRIL 22, 1986
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 AS THE STATE BOARD OF <--
5 OPTOMETRY; providing for its composition, powers and duties;
6 further providing for renewal, revocation and suspension of
7 licenses; providing for fees; and making repeals.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Section 2 of the act of June 6, 1980 (P.L.197,
11 No.57), known as the Optometric Practice and Licensure Act, is
12 amended to read:
13 Section 2. Definitions.
14 The following words and phrases when used in this act shall
15 have, unless the context clearly indicates otherwise, the
16 meanings given to them in this section:
17 "Advisory Committee on Continuing Professional Education."
18 An advisory committee established pursuant to section 3 to make
19 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] OPTOMETRY. <--
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 OPTOMETRY. <--
16 (a) The State Board of Optometrical Examiners OPTOMETRY <--
17 shall consist of thirteen 12 members, all of whom shall be <--
18 residents of Pennsylvania. Seven members shall be optometrists,
19 who are 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. Four THREE <--
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 the
25 Bureau of Consumer Protection in the Office of Attorney General
26 or his designee. The professional and public members of the
27 board shall be appointed by the Governor with the advice and
28 consent of a majority of the Senate. No member of the board <--
29 shall be a member of the faculty of any undergraduate school or
30 college teaching 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 SHALL BE <--
8 ELIGIBLE FOR APPOINTMENT TO serve more than two consecutive
9 terms. A member may continue to serve for a period not to exceed
10 six months following the expiration of his OR HER term if a <--
11 successor has not been duly appointed and qualified according to
12 law. Any member whose term expired prior to the effective date
13 of this act may continue to serve for no more than six months
14 following the effective date of this act.
15 (c) Seven A MAJORITY OF THE members of the board SERVING IN <--
16 ACCORDANCE WITH LAW shall constitute a quorum. EXCEPT FOR <--
17 TEMPORARY AND AUTOMATIC SUSPENSIONS UNDER SECTION 7, A MEMBER
18 MAY NOT BE COUNTED AS PART OF A QUORUM OR VOTE ON ANY ISSUE,
19 UNLESS HE OR SHE IS PHYSICALLY IN ATTENDANCE AT THE MEETING. The
20 board shall select, from among its membership, a chairman, a
21 vice-chairman and a secretary.
22 (d) Each public and professional member of the board shall
23 be paid reasonable traveling, hotel and other necessary expenses
24 INCURRED IN THE PERFORMANCE OF HIS OR HER DUTIES IN ACCORDANCE <--
25 WITH COMMONWEALTH REGULATIONS and per diem compensation at the
26 rate of $60 for each day of actual service while on board
27 business.
28 (e) A member who fails to attend three consecutive meetings
29 shall forfeit his OR HER seat unless the Commissioner of <--
30 Professional and Occupational Affairs, upon written request from
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1 the member, finds that the member should be excused from a
2 meeting because of illness or the death of an immediate family
3 member.
4 (f) In the event that a member of the board dies or resigns
5 OR OTHERWISE BECOMES DISQUALIFIED during a term of office, a <--
6 successor shall be appointed in the same manner and with the
7 same qualifications as set forth in subsection (a) and shall
8 hold office for the unexpired term.
9 (G) A PUBLIC MEMBER WHO FAILS TO ATTEND TWO CONSECUTIVE <--
10 STATUTORILY MANDATED SEMINARS IN ACCORDANCE WITH SECTION 813(E)
11 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS "THE
12 ADMINISTRATIVE CODE OF 1929," SHALL FORFEIT HIS OR HER SEAT
13 UNLESS THE COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL
14 AFFAIRS, UPON WRITTEN REQUEST FROM THE PUBLIC MEMBER, FINDS THAT
15 THE PUBLIC MEMBER SHOULD BE EXCUSED FROM A MEETING BECAUSE OF
16 ILLNESS OR THE DEATH OF A FAMILY MEMBER.
17 Section 3. Section 3(a)(2) of the act is amended and
18 subsections (a) and (b) are amended by adding paragraphs to
19 read:
20 Section 3. Powers and duties of the board.
21 (a) The board shall have the following duties:
22 * * *
23 (2) To prescribe the subjects to be tested, authorize
24 written and practical portions of the examination and
25 [conduct] contract with a professional testing organization
26 for examinations of qualified applicants for licensure at
27 least twice annually at such times and places as designated
28 by the board. All written, oral and practical examinations
29 shall be prepared and administered by a qualified and
30 approved professional testing organization in accordance with
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1 section 812.1 of the act of April 9, 1929 (P.L.177, No.175),
2 known as "The Administrative Code of 1929," except that
3 neither the oral nor the practical examination shall be
4 subject to section 812.1 until such examination is available
5 from a testing organization.
6 * * *
7 (6) TO SUBMIT ANNUALLY TO THE DEPARTMENT OF STATE AN <--
8 ESTIMATE OF THE FINANCIAL REQUIREMENTS OF THE BOARD FOR ITS
9 ADMINISTRATIVE, INVESTIGATIVE, LEGAL AND MISCELLANEOUS
10 EXPENSES.
11 (6) (7) To submit annually to the House and Senate <--
12 Appropriations Committees, 15 days after the Governor has
13 submitted his budget to the General Assembly, a copy of the
14 budget request for the upcoming fiscal year which the board
15 previously submitted to the Department of State.
16 (7) (8) To submit annually to the Professional Licensure <--
17 Committee of the House of Representatives and to the Consumer
18 Protection and Professional Licensure Committee of the Senate
19 a report containing a description of the types of complaints
20 received, status of cases, board action which has been taken
21 and the length of time from the initial complaint to final
22 board resolution.
23 (8) (9) To require all optometrists to provide to their <--
24 patients information on the existence, powers, functions and
25 duties of the board, including the procedure for bringing a
26 complaint to the board. IF SUCH INFORMATION IS AVAILABLE <--
27 THROUGH A PUBLICATION OF THE DEPARTMENT OF STATE, PROVIDING A
28 COPY OF SUCH PUBLICATION TO THE PATIENT MAY SATISFY THE
29 REQUIREMENTS OF THIS SUBSECTION.
30 (b) The board shall have the following powers:
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1 * * *
2 (16) To employ or contract, WITH THE APPROVAL OF THE <--
3 COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, for
4 qualified optometrists or physicians to assist the board in
5 the conduct of the practical portions of the examinations
6 conducted by the board, for such reasonable compensation,
7 including expenses, as the board shall determine, in
8 accordance with section 812.1 of the act of April 9, 1929
9 (P.L.177, No.175), known as "The Administrative Code of
10 1929."
11 (17) To issue subpoenas upon application of an attorney
12 responsible for representing THE COMMONWEALTH IN disciplinary <--
13 actions before the board for the purpose of investigating
14 alleged violations of the disciplinary provisions
15 administered by the board. The board shall have the power to
16 subpoena witnesses, to administer oaths, to examine witnesses
17 or to take testimony or compel the production of books,
18 records, papers and documents as it may deem necessary or
19 proper in and pertinent to any proceeding, investigation or
20 hearing held by it. Optometric records may not be subpoenaed
21 without consent of the patient or without order of a court of
22 competent jurisdiction on a showing that the records are
23 reasonably necessary for the conduct of the investigation.
24 The court may impose such limitations on the scope of the
25 subpoena as are necessary to prevent unnecessary intrusion
26 into patient confidential information. The board is
27 authorized to apply to Commonwealth Court to enforce its
28 subpoenas.
29 SECTION 4. THE ACT IS AMENDED BY ADDING A SECTION TO READ: <--
30 SECTION 3.1. REPORTS TO THE BOARD.
19850H1680B3359 - 7 -
1 AN ATTORNEY RESPONSIBLE FOR REPRESENTING THE COMMONWEALTH IN
2 DISCIPLINARY MATTERS BEFORE THE BOARD SHALL NOTIFY THE BOARD
3 IMMEDIATELY UPON RECEIVING NOTIFICATION OF AN ALLEGED VIOLATION
4 OF THIS ACT. THE BOARD SHALL MAINTAIN CURRENT RECORDS OF ALL
5 REPORTED ALLEGED VIOLATIONS AND PERIODICALLY REVIEW THE RECORDS
6 FOR THE PURPOSE OF DETERMINING THAT EACH ALLEGED VIOLATION HAS
7 BEEN RESOLVED IN A TIMELY MANNER.
8 Section 4 5. Sections 5, 6, 7, 8 and 9 AND 6 of the act are <--
9 amended by adding subsections to read:
10 Section 5. Renewal of license.
11 * * *
12 (c) Any licensee of this Commonwealth who is also licensed
13 to practice optometry in any other state, territory or country
14 shall report this information to the board on the biennial
15 renewal application. Any disciplinary action taken in other
16 states must SHALL be reported to the board on the biennial <--
17 renewal application OR WITHIN 90 DAYS OF FINAL DISPOSITION, <--
18 WHICHEVER IS SOONER. Multiple licensure shall be noted on the
19 licensee's record by the board and such state, territory or
20 country shall be notified by the board of any disciplinary
21 action taken against said licensee in this Commonwealth.
22 Section 6. Exemptions and exceptions.
23 * * *
24 (g) Nothing in this act shall prohibit the fitting of
25 contact lenses by a person acting under the DIRECTION, PERSONAL <--
26 supervision or AND control of a physician or an optometrist <--
27 WITHIN THE STANDARDS OF PRACTICE OF HIS OR HER RESPECTIVE <--
28 PROFESSION.
29 (h) Nothing in this act shall profit PROHIBIT any individual <--
30 from fitting an appropriate contact lens for a specific intended
19850H1680B3359 - 8 -
1 wearer and the complete assisting of such wearer in the use of
2 the contact lens if the following conditions are met:
3 (1) The individual who fits the contact lens has
4 successfully passed the examination administered by the
5 National Contact Lens Examiners as of the effective date of
6 this act.
7 (2) The fitting is based on prescription of a licensed
8 ophthalmologist PHYSICIAN or optometrist. <--
9 (3) The wearer is informed in writing to return to the
10 prescribing ophthalmologist PHYSICIAN or optometrist for <--
11 periodic evaluation during the fit, at intervals not to
12 exceed three months or whenever the fitter feels professional
13 judgment is needed.
14 (4) The individual who has passed the examination
15 administered by the National Contact Lens Examiners as of the
16 effective date of this act submits evidence of such
17 successful examination to the board within 60 days.
18 (5) The board shall compile and publish a list of such
19 individuals and shall enforce the provisions of this
20 subsection.
21 (i) Nothing in this act shall prohibit any optometrist from
22 leasing space from an establishment or from paying for franchise
23 fees or other services on a percentage of gross receipts basis.
24 SECTION 6. SECTION 7(B) OF THE ACT IS AMENDED AND THE <--
25 SECTION IS AMENDED BY ADDING SUBSECTIONS TO READ:
26 Section 7. Refusal, revocation or suspension of license.
27 * * *
28 (B) WHEN THE BOARD FINDS THAT THE LICENSE OF A PERSON MAY BE <--
29 REFUSED, REVOKED OR SUSPENDED THE BOARD MAY:
30 (1) REFUSE, REVOKE OR SUSPEND A LICENSE.
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1 (2) ADMINISTER A PUBLIC OR PRIVATE REPRIMAND.
2 (3) LIMIT OR OTHERWISE RESTRICT THE LICENSEE'S PRACTICE
3 UNDER THIS ACT.
4 (4) SUSPEND ANY ENFORCEMENT UNDER THIS SUBSECTION AND
5 PLACE AN OPTOMETRIST ON PROBATION, WITH THE RIGHT TO VACATE
6 THE PROBATIONARY ORDER AND IMPOSE THE ENFORCEMENT.
7 (5) REQUIRE A LICENSEE TO SUBMIT TO THE CARE, COUNSELING
8 OR TREATMENT OF A PHYSICIAN OR A PSYCHOLOGIST DESIGNATED BY
9 THE BOARD.
10 (6) RESTORE OR REISSUE, IN ITS DISCRETION, A SUSPENDED
11 LICENSE TO PRACTICE OPTOMETRY AND IMPOSE ANY DISCIPLINARY OR
12 CORRECTIVE MEASURE WHICH IT MIGHT ORIGINALLY HAVE IMPOSED.
13 * * *
14 (f) Unless ordered to do so by a court, the board shall not
15 reinstate the license of a person to practice as an optometrist
16 which has been revoked until at least five years have elapsed
17 from the effective date of the revocation. A person shall be
18 required to apply for a license after such five-year period in
19 accordance with section 4 if he OR SHE desires to practice <--
20 optometry at any time after such revocation.
21 (g) A license issued under this act shall automatically be
22 suspended upon the legal commitment of a licensee to an
23 institution because of mental incompetency from any cause upon
24 filing with the board a certified copy of such commitment;
25 conviction of a felony under the act of April 14, 1972 (P.L.233,
26 No.65), known as "The Controlled Substance, Drug, Device and
27 Cosmetic Act"; or conviction of an offense under the laws of
28 another jurisdiction which, if committed in Pennsylvania, would
29 be a felony under "The Controlled Substance, Drug, Device and
30 Cosmetic Act." As used in this section the term "conviction"
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1 shall include a judgment, an admission of guilt or a plea of
2 nolo contendere. Automatic suspension under this section shall
3 not be stayed pending any appeal of a conviction. Restoration of
4 such license shall be made as provided in this act for
5 revocation or suspension of such license.
6 (h) The board shall temporarily suspend a license under
7 circumstances as determined by the board to be an immediate and
8 clear danger to the public health or safety. The board shall
9 issue an order to that effect without a hearing, but upon due
10 notice to the licensee concerned at his last known address,
11 which shall include a written statement of all allegations
12 against the licensee. The provisions of section 7(f) shall not
13 apply to temporary suspension. The board shall thereupon
14 commence formal action to suspend, revoke or restrict the
15 license of the person concerned as otherwise provided for in
16 this act. All actions shall be taken promptly and without delay.
17 Within 30 days following the issuance of an order temporarily
18 suspending a license, registration or certificate, the board
19 shall conduct or cause to be conducted, a preliminary hearing to
20 determine that there is a prima facie case supporting the
21 suspension. The licensee whose license has been temporarily
22 suspended may be present at the preliminary hearing and may be
23 represented by counsel, cross-examine witnesses, inspect
24 physical evidence, call witnesses, offer evidence and testimony
25 and make a record of the proceedings. If it is determined that
26 there is not a prima facie case, the suspended license shall be
27 immediately restored. The temporary suspension shall remain in
28 effect until vacated by the board, but in no event longer than
29 180 days.
30 (I) THE BOARD SHALL REQUIRE A PERSON WHOSE LICENSE HAS BEEN <--
19850H1680B3359 - 11 -
1 SUSPENDED OR REVOKED TO RETURN THE LICENSE IN SUCH MANNER AS THE
2 BOARD DIRECTS. FAILURE TO SURRENDER THE LICENSE SHALL BE A
3 MISDEMEANOR OF THE THIRD DEGREE.
4 SECTION 7. SECTIONS 8 AND 9 OF THE ACT ARE AMENDED BY ADDING
5 SUBSECTIONS TO READ:
6 Section 8. Violations and penalties.
7 * * *
8 (c) In addition to any other civil remedy or criminal
9 penalty provided for in this act, the board, by a vote of the
10 majority of the maximum number of the authorized membership of
11 the board as provided for by this act or by a vote of the
12 majority of the qualified and confirmed membership or a minimum
13 of six members, whichever is greater, may levy a civil penalty
14 of up to $1,000 on any current licensee who violates any
15 provision of this act or on any person who practices optometry
16 without being properly licensed to do so under this act. The
17 board shall levy this penalty only after affording the accused
18 party the opportunity for a hearing, as provided in 2 Pa.C.S.
19 (relating to administrative law and procedure).
20 (D) IT SHALL BE UNLAWFUL FOR ANY PERSON TO PRACTICE OR <--
21 ATTEMPT TO OFFER TO PRACTICE OPTOMETRY, AS DEFINED IN THIS ACT,
22 WITHOUT HAVING AT THE TIME OF SO DOING A VALID, UNEXPIRED,
23 UNREVOKED AND UNSUSPENDED LICENSE ISSUED UNDER THIS ACT. THE
24 UNLAWFUL PRACTICE OF OPTOMETRY AS DEFINED IN THIS ACT MAY BE
25 ENJOINED BY THE COURTS ON PETITION OF THE BOARD OR THE
26 COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS. IN ANY
27 SUCH PROCEEDING, IT SHALL NOT BE NECESSARY TO SHOW THAT ANY
28 PERSON IS INDIVIDUALLY INJURED BY THE ACTIONS COMPLAINED OF. IF
29 IT IS FOUND THAT THE RESPONDENT HAS ENGAGED IN THE UNLAWFUL
30 PRACTICE OF OPTOMETRY, THE COURT SHALL ENJOIN HIM OR HER FROM SO
19850H1680B3359 - 12 -
1 PRACTICING UNLESS HE OR SHE HAS BEEN DULY LICENSED. PROCEDURE IN
2 SUCH CASES SHALL BE THE SAME AS IN ANY OTHER INJUNCTION SUIT.
3 THE REMEDY BY INJUNCTION HEREBY GIVEN IS IN ADDITION TO ANY
4 OTHER CIVIL OR CRIMINAL PROSECUTION AND PUNISHMENT.
5 (d) (E) All fines and civil penalties imposed in accordance <--
6 with this section shall be paid into the Professional Licensure
7 Augmentation Account.
8 Section 9. Fees and other moneys.
9 * * *
10 (c) All fees required under this act shall be fixed by the
11 board by regulation and shall be subject to the act of June 25,
12 1982 (P.L.633, No.181), known as the "Regulatory Review Act." If
13 the revenues raised by fees, fines and civil penalties imposed
14 pursuant to this act are not sufficient to meet expenditures
15 over a two-year period, the board shall increase those fees by
16 regulation so that the projected revenues will meet or exceed
17 projected expenditures.
18 (d) If the Bureau of Professional and Occupational Affairs
19 determines that the fees established by the board under
20 subsection (c) are inadequate to meet the minimum enforcement
21 efforts required by this act, then the bureau, after
22 consultation with the board and subject to the "Regulatory
23 Review Act," shall increase the fees by regulation in an amount
24 that adequate revenues are raised to meet the required
25 enforcement effort.
26 (e) The fees established under this act shall be sufficient
27 to enable the board to secure such investigatory and prosecutory
28 staff as is necessary to pursue appropriate legal action against
29 those persons engaged in the practice of optometry in
30 Pennsylvania without being licensed as required by this act and
19850H1680B3359 - 13 -
1 against any person who violates any other provision of this act.
2 Section 5 8. This act with respect to the State Board of <--
3 Optometrical Examiners constitutes the legislation necessary to
4 reestablish an agency under the act of December 22, 1981
5 (P.L.508, No.142), known as the Sunset Act.
6 Section 6 9. The presently confirmed members of the State <--
7 Board of Optometrical Examiners constituted under section 415 of
8 the act of April 9, 1929 (P.L.177, No.175), known as The
9 Administrative Code of 1929, as of December 31, 1985 THE <--
10 EFFECTIVE DATE OF THIS ACT, shall continue to serve as board
11 members until their present terms of office expire.
12 Section 7 10. Each rule, regulation or fee of the board in <--
13 effect on the effective date of this act shall remain in effect
14 after such date until amended by the board, provided that the
15 board shall immediately initiate the repeal or amendment of any
16 rule or regulation which is inconsistent with the provisions of
17 this act.
18 SECTION 11. ANY PERSON WHO HOLDS A VALID LICENSE ISSUED BY <--
19 THE STATE BOARD OF OPTOMETRICAL EXAMINERS UNDER THE ACT OF JUNE
20 6, 1980 (P.L.197, NO.57), KNOWN AS THE OPTOMETRIC PRACTICE AND
21 LICENSURE ACT, PRIOR TO THE EFFECTIVE DATE OF THIS AMENDATORY
22 ACT SHALL, ON AND AFTER THE EFFECTIVE DATE HEREOF, BE DEEMED TO
23 BE LICENSED BY THE STATE BOARD OF OPTOMETRY AS PROVIDED FOR IN
24 THIS AMENDATORY ACT.
25 Section 8 12. The State Board of Optometrical Examiners <--
26 OPTOMETRY shall continue together with its statutory functions <--
27 and duties until December 31, 1991, when it shall terminate and
28 go out of existence unless reestablished or continued by the
29 General Assembly. Evaluation and review, termination,
30 reestablishment and continuation of the board beyond December
19850H1680B3359 - 14 -
1 31, 1991, shall be conducted pursuant to the act of December 22,
2 1981 (P.L.508, No.142), known as the Sunset Act.
3 Section 9 13. (a) Section 415 of the act of April 9, 1929 <--
4 (P.L.177, No.175), known as The Administrative Code of 1929, is
5 repealed.
6 (b) All other acts and parts of acts are repealed insofar as
7 they are inconsistent with this act.
8 Section 10 14. This act shall take effect January 1, 1986 <--
9 IMMEDIATELY. <--
I13L63CHF/19850H1680B3359 - 15 -