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S.B. 20 Enrolled

    

OPTOMETRY PRACTICE ACT

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: L. Alma Mansell

    AN ACT RELATING TO HEALTH; AMENDING THE OPTOMETRY PRACTICE ACT;
    AMENDING DEFINITIONS; PROVIDING DEFINITIONS AND PRACTICE
    REGARDING CONTACT LENSES; AMENDING THE SCOPE OF PRACTICE OF
    OPTOMETRISTS; AND AMENDING THE BOARD MEMBERSHIP.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         58-16a-102, as last amended by Chapter 247, Laws of Utah 1996
    ENACTS:
         58-16a-301, Utah Code Annotated 1953
         58-16a-304, Utah Code Annotated 1953
         58-16a-306, Utah Code Annotated 1953
         58-16a-307, Utah Code Annotated 1953
         58-16a-501, Utah Code Annotated 1953
         58-16a-502, Utah Code Annotated 1953
         58-16a-701, Utah Code Annotated 1953
         58-16a-702, Utah Code Annotated 1953
    RENUMBERS AND AMENDS:
         58-16a-201, (Renumbered from 58-16a-103, as last amended by Chapter 297, Laws of
    Utah 1993)
         58-16a-302, (Renumbered from 58-16a-106, as last amended by Chapter 313, Laws of
    Utah 1994)
         58-16a-303, (Renumbered from 58-16a-107, as repealed and reenacted by Chapter 297,
    Laws of Utah 1993)
         58-16a-305, (Renumbered from 58-16a-105, as last amended by Chapter 297, Laws of
    Utah 1993)

         58-16a-401, (Renumbered from 58-16a-108, as repealed and reenacted by Chapter 297,
    Laws of Utah 1993)
         58-16a-503, (Renumbered from 58-16a-110.5, as enacted by Chapter 297, Laws of Utah
    1993)
         58-16a-601, (Renumbered from 58-16a-109, as enacted by Chapter 287, Laws of Utah 1991)
    REPEALS:
         58-16a-104, as enacted by Chapter 287, Laws of Utah 1991
         58-16a-111, as last amended by Chapter 297, Laws of Utah 1993
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 58-16a-102 is amended to read:
         58-16a-102. Definitions.
        In addition to the definitions in Section 58-1-102, as used in this chapter:
        (1) "Board" means the Optometrist Licensing Board created in Section [58-16a-103]
    58-16a-201.
        [(2) "Credentials" means the scope of practice and range of pharmaceutical utilization
    permitted an individual optometrist by the division in consultation with the board.]
        [(3) "Ophthalmic lens" means any lens used to treat the eye that has a spherical, cylindrical,
    or prismatic power or value, or that is available only by prescription.]
        (2) "Contact lens" means any lens that:
        (a) has a spherical, cylindrical, or prismatic power or curvature;
        (b) is made pursuant to a current prescription; and
        (c) is intended to be worn on the surface of the eye.
        (3) "Contact lens prescription" means a written order for contact lenses that includes:
        (a) the date written;
        (b) the base curve, power, diameter, material or brand name, and expiration date;
        (c) the quantity of lenses if other than one per eye; and
        (d) the signature of the licensed optometrist or physician prescribing the contact lenses.
        (4) "Eye and its adnexa" means the human eye and all structures situated within the orbit,

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    including the conjunctiva, lids, lashes, and lacrimal system.
        (5) "Fitting of a contact lens" means:
        (a) the using of a keratometer to measure the human eye;
        (b) utilizing refractive data provided by a licensed optometrist or ophthalmologist; and
        (c) trial fitting of contact lenses to determine a tentative contact lens prescription for a
    patient.
        (6) "Laser surgery" means surgery in which human tissue is cut, burned, or vaporized by
    means of laser or ionizing radiation.
        (7) "Ophthalmic lens" means any lens used to treat the eye and that:
        (a) has a spherical, cylindrical, or prismatic power;
        (b) is made pursuant to an unexpired prescription; and
        (c) is intended to be used in eyeglasses or spectacles.
        (8) "Optometric assistant" means an unlicensed individual:
        (a) working under the direct and immediate supervision of a licensed optometrist; and
        (b) engaged in specific tasks assigned by the licensed optometrist in accordance with the
    standards and ethics of the profession.
        (9) "Optometrist" or "optometric physician" means an individual licensed under this chapter.
        [(4)] (10) "Optometry" and "practice of optometry" mean any one or any combination of the
    following practices:
        (a) examination of the human eye and its adnexa to detect and diagnose defects or abnormal
    conditions;
        (b) determination or modification of the accommodative or refractive state of the human eye
    or its range or power of vision by administration and prescription of pharmaceutical agents or the
    use of diagnostic instruments;
        (c) prescription, ordering, administration, or adaptation of ophthalmic lenses, contact lenses,
    ophthalmic devices, pharmaceutical agents, laboratory tests, or ocular exercises to diagnose and treat
    diseases, defects, or other abnormal conditions of the human eye and its adnexa; or
        (d) display of any advertisement, circular, sign, or device offering to:

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        (i) examine the eyes;
        (ii) fit glasses or contact lenses;
        (iii) adjust frames; or
        (iv) duplicate, replace, or accept for duplication or replacement any ophthalmic lens[.] or
    contact lens;
        [(5) "Pharmaceutical agents" means those drugs state law requires to be dispensed by
    prescription and the division, in consultation with the board, allows optometrists to use for
    diagnostic and therapeutic purposes in accordance with this part.]
        (e) removal of a foreign body from the eye or its adnexa, that is not deeper than the anterior
    one-half of the cornea;
        (f) consultation regarding the eye and its adnexa with other appropriate health care providers,
    including referral to other appropriate health care providers; and
        (g) a person, not licensed as an optometrist, directing a licensee under this chapter to
    withhold or alter the eye care services the licensee has ordered.
        (11) "Pharmaceutical agent" means any diagnostic or therapeutic drug or combination of
    drugs that has the property of assisting in the diagnosis, prevention, treatment, or mitigation of
    abnormal conditions or symptoms of the eye and its adnexa.
        [(6)] (12) "Prescription drug" has the same definition as in Section 58-17a-102.
        [(7) "Protocol" means the written criteria jointly developed by the supervising physician and
    the optometrist that permits the optometrist to treat eye disease and injury.]
        [(8) "Supervising physician" means an individual who is:]
        [(a) currently licensed as a physician and surgeon under the Utah Medical Practice Act;]
        [(b) a board-certified ophthalmologist; and]
        [(c) approved by the board and division.]
        [(9) "Supervision" means the supervising physician is available for consultation with the
    optometrist either personally or by other means permitting direct verbal communication between the
    physician and optometrist in accordance with a utilization plan approved by the board, the division,
    and the protocol.]

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        [(10) "Unprofessional conduct" as defined in Section 58-1-501 and as may be further defined
    by rule includes:]
        [(a) failure to refer to an appropriate licensed practitioner any patients with conditions
    unresponsive to treatment, or whose treatment is not within the scope of the competence, licensure,
    or credentials of the licensee;]
        [(b) providing confidential patient information to any third party who does not have a legal
    and professional ground for obtaining the information concerning the patient;]
        [(c) making any false or misleading record in his practice as an optometrist;]
        [(d) knowingly prescribing, selling, giving away, or directly or indirectly administering, or
    offering to prescribe, sell, furnish, give away, or administer any prescription drug except for a
    legitimate medical purpose and upon a proper diagnosis indicating use of that drug in the amounts
    prescribed or provided;]
        [(e) prescribing any prescription drug for himself or administering any prescription drug to
    himself except those drugs legally prescribed for him by a licensed practitioner and used in
    accordance with the prescription order for the condition diagnosed;]
        [(f) giving or receiving directly or indirectly any fee, commission, rebate, or other
    compensation for professional services not actually and personally rendered, except in a legal
    relationship within a lawful professional partnership, corporation, or association; or]
        [(g) failure to transfer pertinent and necessary information from medical records to another
    optometrist or physician when requested by the patient or his representative designated in writing.]
        [(11) "Utilization plan" means a written description that reasonably details the scope of
    practice and permitted prescribing authorization for an optometrist.]
        (13) "Unexpired" means a prescription that was issued not more than two years prior to
    presentation of the prescription for an ophthalmic lens or lenses.
        Section 2. Section 58-16a-201, which is renumbered from Section 58-16a-103 is renumbered
    and amended to read:
    
Part 2. Board

         [58-16a-103].     58-16a-201. Creation of board -- Board duties and functions.

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        (1) There is created an Optometrist Licensing Board consisting of [four] five optometrists[,
    one physician who is a board-certified ophthalmologist recommended by the Utah Medical
    Association, one pharmacologist,] and [one member] two members from the general public who do
    not provide eye care services.
        (2) The board shall be appointed and serve in accordance with Section 58-1-201.
        (3) The board's duties and responsibilities shall be in accordance with Sections 58-1-202
    and 58-1-203, and as provided under this Subsection (3).
        (4) The board shall designate one of its members on a permanent or rotating basis to:
        (a) assist the division in reviewing complaints concerning the unlawful or unprofessional
    conduct of a licensee; and
        (b) advise the division in its investigation of these complaints.
        (5) A board member who has, under Subsection (4), reviewed a complaint or advised in its
    investigation may be disqualified from participating with the board when the board serves as a
    presiding officer in an adjudicative proceeding concerning the complaint. The board member may
    be disqualified:
        (a) on his own motion, due to actual or perceived bias or lack of objectivity; or
        (b) upon challenge for cause raised on the record by any party to the adjudicative
    proceeding.
        Section 3. Section 58-16a-301 is enacted to read:
    
Part 3. Licensing

         58-16a-301. Licensure required -- License classifications.
        (1) A license is required to engage in the practice of optometry, except as specifically
    provided in Section 58-1-307 or 58-16a-305.
        (2) The division shall issue to a person who qualifies under this chapter a license in the
    classification of optometrist.
        Section 4. Section 58-16a-302, which is renumbered from Section 58-16a-106 is renumbered
    and amended to read:
         [58-16a-106].     58-16a-302. Qualifications for licensure.

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        (1) [An] Each applicant for licensure as an optometrist shall:
        (a) submit an application in a form prescribed by the division;
        (b) pay a fee as determined by the division under Section 63-38-3.2;
        (c) be of good moral character;
        [(c)] (d) (i) be a doctoral graduate of a recognized school of optometry [approved by the
    division;] accredited by:
        (A) a regional accrediting body recognized by the Council on Post-Secondary Education;
    and
        (B) the American Optometric Association's Council on Optometric Education; or
        (ii) be a graduate of a school of optometry located outside the United States that meets the
    criteria that would qualify the school for accreditation under Subsection (d)(i), as demonstrated by
    the applicant for licensure;
        [(d)] (e) if the applicant graduated from a recognized school of optometry prior to July 1,
    1996, have successfully completed a course of study satisfactory to the division, in consultation with
    the board, in general and ocular pharmacology and emergency medical care;
        [(e)] (f) have passed examinations approved by the division in consultation with the board
    that include:
        (i) a standardized national optometry examination;
        (ii) a standardized clinical examination;
        (iii) a standardized national therapeutics examination; and
        (iv) the Utah Optometry [Jurisprudence] Law Examination; [and]
        [(f)] (g) show evidence of membership in a peer review program approved by the division
    in collaboration with the board and agree in writing to maintain membership while licensed as an
    optometrist in this state[.]; and
        (f) meet with the board and representatives of the division, if requested by either party, for
    the purpose of evaluating the applicant's qualifications for licensure.
        (2) An applicant for licensure as an optometrist [on or after July 1, 1991, shall meet the
    licensure requirements under this chapter and not requirements under any prior optometry licensure

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    laws of this state.] qualifying under the endorsement provision of Section 58-1-302 shall:
        [(3) The division may issue an optometry license by endorsement if the applicant, based
    upon his licensure in another state, also shows proof of:]
        [(a) holding a current optometry license in good standing in that state; and]
        [(b) having practiced optometry full-time in that state for not less than the immediately
    preceding two years.]
        (a) be currently licensed in good standing in any state of the United States; and
        (b) have been actively engaged in the legal practice of optometry for not less than 3,200
    hours in the immediately preceding two years, in a manner that is consistent with the legal practice
    of optometry in this state.
        Section 5. Section 58-16a-303, which is renumbered from Section 58-16a-107 is renumbered
    and amended to read:
         [58-16a-107].     58-16a-303. Term of license -- Expiration -- Renewal.
        (1) (a) Each license issued under this part shall be issued in accordance with a two-year
    renewal cycle established by rule.
        (b) A renewal period may be extended or shortened by as much as one year to maintain
    established renewal cycles or to change an established renewal cycle.
        (2) At the time of renewal the licensee shall show satisfactory evidence of each of the
    following renewal requirements:
        (a) current membership in a peer review organization; and
        (b) completion of continuing education as required under [this chapter] Section 58-16a-304.
        (3) Each license automatically expires on the expiration date shown on the license unless
    renewed by the licensee in accordance with Section 58-1-308.
        Section 6. Section 58-16a-304 is enacted to read:
         58-16a-304. Continuing education.
        (1) As a condition precedent for license renewal, each licensee shall, during each two-year
    licensure cycle or other cycle defined by rule, complete 30 hours of qualified continuing professional
    education in accordance with standards defined by rule.

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        (2) If a renewal period is extended or shortened under Section 58-16a-303, the continuing
    education hours required for license renewal under this section shall be increased or decreased
    proportionally.
        Section 7. Section 58-16a-305, which is renumbered from Section 58-16a-105 is renumbered
    and amended to read:
         [58-16a-105].     58-16a-305. License -- Exemptions.
        [(1) The division shall issue an optometrist license to any person who meets the
    qualifications for licensure under this chapter.]
        [(2)] In addition to the exemptions from licensure in Section 58-1-307, the following persons
    may engage in acts included in the definition of the practice of optometry subject to the stated
    circumstances and limitations without being licensed under this chapter:
        [(a)] (1) a person who sells eyeglasses on prescription [of the] provided by a person [making
    the examination and] authorized under state law to practice either optometry or medicine and
    surgery; and
        [(b)] (2) a person who sells eyeglasses or spectacles as articles of merchandise if:
        [(i)] (a) he does so in the ordinary course of trade from a permanently located and
    established place of business;
        [(ii)] (b) he does not traffic or attempt to traffic upon assumed skill in testing the eye and
    adapting lenses according to the test;
        [(iii)] (c) he does not duplicate, replace, or accept for replacement any lens or lenses, except
    in the case of an emergency, unless he is an exclusive wholesale optical establishment;
        [(iv)] (d) he does not use in the testing of the eyes any lenses other than the lenses actually
    sold; and
        [(v)] (e) he does not give or offer eyeglasses or spectacles as premiums[.];
        (3) a person who sells contact lenses under the following conditions:
        (a) he has a current certification from both the American Board of Opticianry and the
    National Contact Lens Examiners;
        (b) he does not give or offer contact lenses as premiums;

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        (c) he does not perform a refraction, over-refraction, or attempt to traffic upon assumed skill
    in testing the eye;
        (d) he operates in the ordinary course of trade from a permanently located and established
    place of business;
        (e) he performs the work involved in fitting contact lenses himself and does not delegate the
    contact lens fitting to any other individual who is not qualified under this Subsection (3);
        (f) he provides services only to a patient who:
        (i) presents an unexpired contact lens prescription; or
        (ii) has had an eye examination within the prior six months by an optometrist or
    ophthalmologist meeting the requirements under Section 58-16a-306; and
        (g) he maintains a copy of the patient's contact lens prescription for not less than seven years.
        Section 8. Section 58-16a-306 is enacted to read:
         58-16a-306. Contact lens prescription -- Qualifications.
        An optometrist or ophthalmologist issuing a contact lens prescription that may be filled by
    a person fitting contact lenses under Subsection 58-16a-305(3) shall:
        (1) be licensed under this title to practice in Utah;
        (2) have a current written agreement with the person fitting the contact lenses to fit the
    contact lenses to be prescribed by that particular optometrist or ophthalmologist;
        (3) be an optometrist or ophthalmologist for whom the person fitting the contact lenses has
    performed not less than two years of contact lens apprenticeship which apprenticeship shall be noted
    in the written agreement; and
        (4) ensure the final contact lens prescription is accurate and shall present a written copy of
    the prescription to the person fitting the contact lens under Subsection 58-16a-305(3).
        Section 9. Section 58-16a-307 is enacted to read:
         58-16a-307. Licenses held on effective date.
        An individual holding a current license as an optometrist that was issued under any prior state
    law is considered to hold a current license in the same scope of practice under this chapter.
        Section 10. Section 58-16a-401, which is renumbered from Section 58-16a-108 is

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    renumbered and amended to read:
    
Part 4. License Denial and Discipline

         [58-16a-108].     58-16a-401. Grounds for denial of license -- Disciplinary
     proceedings.
        Grounds for refusal to issue a license to an applicant, for refusal to renew the license of a
    licensee, to revoke, suspend, restrict, or place on probation the license of a licensee, to issue a public
    or private reprimand to a licensee, and to issue cease and desist orders shall be in accordance with
    Section 58-1-401.
        Section 11. Section 58-16a-501 is enacted to read:
    
Part 5. Unlawful and Unprofessional Conduct - Penalties

         58-16a-501. Unlawful conduct.
        "Unlawful conduct" includes, in addition to the definition in Section 58-1-501:
        (1) buying, selling, or fraudulently obtaining, any optometry diploma, license, certificate,
    or registration;
        (2) aiding or abetting the buying, selling, or fraudulently obtaining, of any optometry
    diploma, license, certificate, or registration;
        (3) selling contact lenses without having received a written unexpired prescription unless
    the person selling the lenses is a licensed optometrist or ophthalmologist, or an individual exempt
    from licensure under Subsection 58-16a-305(3); or
        (4) representing oneself as or using the title of "optometrist," "optometric physician," "doctor
    of optometry," or "O.D.," unless currently licensed or exempted from licensure under this chapter.
        Section 12. Section 58-16a-502 is enacted to read:
         58-16a-502. Unprofessional conduct.
        "Unprofessional conduct" includes, in addition to the definition in Section 58-1-501:
        (1) using or employing the services of an optometric assistant to assist a licensee in any
    manner not in accordance with:
        (a) the generally recognized practices and standards of ethics of the profession; or
        (b) applicable state law or division rule;

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        (2) failure to refer a patient to an appropriate licensed practitioner when:
        (a) the patient's condition does not respond to treatment; or
        (b) the treatment is not within the scope of competence or licensure of the licensee;
        (3) providing confidential information regarding a patient to any third party who does not
    have a legal and professional ground for obtaining the information;
        (4) knowingly prescribing, selling, giving away, or administering any prescription drug
    except for a legitimate medical purpose and upon a proper diagnosis indicating the use of the drug
    in the amount prescribed or provided;
        (5) giving or receiving directly or indirectly any fee, commission, rebate, or other
    compensation for professional services not actually and personally rendered, except as part of a legal
    relationship within a lawful professional partnership, corporation, or association; or
        (6) failure to transfer pertinent and necessary information from a patient's medical records
    to another optometrist or physician when so requested by the patient or his representative, as
    designated in writing.
        Section 13. Section 58-16a-503, which is renumbered from Section 58-16a-110.5 is
    renumbered and amended to read:
         [58-16a-110.5].     58-16a-503. Penalty for unlawful conduct.
        [(1)] Any person who violates the unlawful conduct provision defined in Section
    58-16a-501, Subsection 58-1-501(1)(a), or (1)(c) is guilty of a third degree felony.
        [(2) Any person who violates any of the unlawful conduct provisions defined in Subsections
    58-1-501(1)(b) through (1)(e) and 58-16a-102(11) is guilty of a class A misdemeanor.]
        Section 14. Section 58-16a-601, which is renumbered from Section 58-16a-109 is
    renumbered and amended to read:
    
Part 6. Scope of Practice

         [58-16a-109].     58-16a-601. Scope of practice.
        (1) An optometrist may:
        (a) provide any optometric services not specifically prohibited under this chapter or division
    rules and that are within[: (a)] the optometrist's training, skills, and scope of competence; and

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        [(b) the scope of the optometrist's credentials as issued by the division.]
        [(2) An optometrist may prescribe pharmaceutical agents only in accordance with the
    provisions of this chapter.]
        (b) prescribe or administer any pharmaceutical agent for the eye and its adnexa, including
    all oral pharmaceutical agents, except that the oral antibiotics may only be prescribed for:
        (i) eyelid-related ocular conditions or diseases; and
        (ii) any other ocular disease or condition as specified by division rule.
        [(3)] (2) An optometrist may not:
        (a) perform surgery, including laser surgery[, but may remove a foreign body from the
    adnexa or the eye that is not deeper than the anterior one-half of the cornea]; or
        (b) prescribe or administer any Schedule II or Schedule III controlled substance as defined
    in Title 58, Chapter 37, Controlled Substances.
        [(4) (a) The division shall in consultation with the board establish by rule the scope of
    optometry practice under Subsection (2).]
        [(b) The division shall include in the rules the use of supervising physicians, utilization
    plans, and protocols.]
        [(c) The division rules under this subsection shall limit to a maximum of six the number of
    optometrists a supervising physician may supervise.]
        Section 15. Section 58-16a-701 is enacted to read:
    
Part 7. Practice Standards

         58-16a-701. Form of practice.
        (1) An optometrist licensed under this chapter may engage in practice as an optometrist or
    in the practice of optometry only as an individual licensee. However, as an individual licensee he
    may be:
        (a) an individual operating as a business proprietor;
        (b) an employee of another person or corporation;
        (c) a partner in a lawfully organized partnership;
        (d) a lawfully formed professional corporation;

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        (e) a lawfully organized limited liability company;
        (f) a lawfully organized business corporation; or
        (g) any other form of organization recognized by the state and which is not prohibited by
    division rule made in collaboration with the board.
        (2) Regardless of the form in which a licensee engages in the practice of optometry, the
    licensee may only permit the practice of optometry in that form of practice to be conducted by an
    individual:
        (a) licensed in Utah as an optometrist under Section 58-16a-301; and
        (b) who is able to lawfully and competently engage in the practice of optometry.
        Section 16. Section 58-16a-702 is enacted to read:
         58-16a-702. Medical records -- Electronic records.
        (1) Medical records maintained by a licensee shall:
        (a) meet the standards and ethics of the profession; and
        (b) be maintained in accordance with standards developed by the peer review organization
    for optometry.
        (2) Medical records under this section may be maintained by any electronic means if the
    records comply with Subsection (1).
        Section 17. Repealer.
        This act repeals:
        Section 58-16a-104, Division functions.
        Section 58-16a-111, Continuing education.

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