TITLE 22. EXAMINING BOARDS

PART 14. TEXAS OPTOMETRY BOARD

CHAPTER 273. GENERAL RULES

22 TAC §273.4

The Texas Optometry Board proposes amendments to §273.4 to set fees for license renewal. The amendments to the fees will fund the agency's contribution to the costs of the Prescription Monitoring Program as set out in House Bill 2561, Regular Session, 85th Legislature. Fee changes will also fund the agency's national databank query at license renewal. The query is required by Senate Bill 314, Regular Session, 85th Legislature. The rule also amends language referring to fingerprint requirements in this title.

Chris Kloeris, executive director of the Texas Optometry Board, estimates that for the first five-year period the amendments are in effect, the Optometry Board will collect an additional $26,741.93 each year. Fifteen percent of the additional amount collected is allocated by statute to the University of Houston. Of the total amount, $14,161.85 each year will be transferred to the Texas State Board of Pharmacy to operate the Prescription Monitoring Program. The amendment of license renewal fees is estimated to provide $9,092.00 to pay for a query from a national databank on each renewing licensee. There will be no fiscal implications for local government as a result of enforcing or administering the amendments.

Chris Kloeris also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated is that the Prescription Monitoring Program, which detects potentially harmful prescribing or dispensing patterns or practices that may suggest drug diversion or drug abuse, will be adequately funded. The query of a national databank benefits the public by identifying licensees disciplined in other states.

It is anticipated that there will be economic costs of $7.65 per year for active licensed Optometric Glaucoma Specialists for each of the first five years the amendments are in effect. All other licensees will see a $2.36 increase in the annual license renewal fee.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

The agency licenses approximately 4,000 optometrists and therapeutic optometrists. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. The agency does not license these practices.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT

The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.

The amendment is proposed under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.152, 351.154, 351.304, and 351.308; and House Bill 2561 and Senate Bill 314, Regular Session, 85th Legislature. No other sections are affected by the amendments.

The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §§351.152, 351.154, 351.304, and 351.308 as authorizing the agency to set license renewal and late renewal fees and requiring a deposit to the University of Houston of a percentage of the renewal fee. House Bill 2561 amends the Prescription Monitoring Program and authorizes the agency to increase renewal fees to fund a transfer to the Texas State Board of Pharmacy. Senate Bill 314 requires the agency to query a national databank at cost for each license renewal.

§273.4.Fees (Not Refundable).

(a) - (f) (No change.)

(g) License Renewal.

(1) Optometrist and Therapeutic Optometrist: $210.36 [$208.00] plus $1.00 fee required by House Bill 2985, 78th Legislature. Total fees: $211.36 [$209.00]. The license renewal fee includes $10.00 to fund a program to aid impaired optometrists and optometry students as authorized by statute.

(2) Optometric Glaucoma Specialist: $223.50 [$208.00] plus $1.00 fee required by House Bill 2985, 78th Legislature [and $7.85 fee to fund the Prescription Monitoring Program authorized by Senate Bill 195, 84th Legislature]. The inactive license renewal fee does not include the Prescription Monitoring Program fee. Total fees: $224.50 [$216.85] active renewal; $211.36 [$209.00] inactive renewal. The license renewal fee includes $10.00 to fund a program to aid impaired optometrists and optometry students as authorized by statute.

(h) License fee for late renewal, one to 90 days late.

(1) Optometrist and Therapeutic Optometrist: $315.54 [$312.00] plus $1.00 fee required by House Bill 2985, 78th Legislature. Total late license fees: $316.54 [$313.00].

(2) Optometric Glaucoma Specialist: $335.25 [$312.00] plus $1.00 fee required by House Bill 2985, 78th Legislature [and $7.85 fee to fund the Prescription Monitoring Program authorized by Senate Bill 195, 84th Legislature]. The inactive license renewal fee does not include the Prescription Monitoring Program fee. Total fees: $336.25 [$320.85] active renewal; $316.54 [$313.00] inactive renewal.

(i) License fee for late renewal, 90 days to one year late.

(1) Optometrist and Therapeutic Optometrist: $420.72 [$416.00] plus $1.00 fee required by House Bill 2985, 78th Legislature. Total late license fees: $421.72 [$417.00].

(2) Optometric Glaucoma Specialist: $447.00 [$416.00] plus $1.00 fee required by House Bill 2985, 78th Legislature [and $7.85 fee to fund the Prescription Monitoring Program authorized by Senate Bill 195, 84th Legislature]. The inactive license renewal fee does not include the Prescription Monitoring Program fee. Total fees: $448.00 [$424.85] active renewal; $421.72 [$417.00] inactive renewal.

(j) Late fees (for all renewals with delayed continuing education) $210.36 [$208.00].

(k) - (n) (No change.)

(o) Retired License.

(1) Optometrist and Therapeutic Optometrist: $210.36 [$208.00] plus $1.00 fee required by House Bill 2985, 78th Legislature. Total fee: $211.36 [$209.00].

(2) Optometric Glaucoma Specialist: $223.50 [$208.00] plus $1.00 fee required by House Bill 2985, 78th Legislature [and $7.85 fee to fund the Prescription Monitoring Program authorized by Senate Bill 195, 84th Legislature]. Total fee: $224.50 [$216.85].

(p) - (q) (No change.)

(r) Section 273.8 of this title defines when the fee required for FBI criminal history in the amount charged by the Texas Department of Public Safety is required.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 22, 2017.

TRD-201703270

Chris Kloeris

Executive Director

Texas Optometry Board

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 305-8500


CHAPTER 277. PRACTICE AND PROCEDURE

22 TAC §277.1, §277.11

The Texas Optometry Board proposes amendments to §277.1 and new §277.11 to comply with Senate Bill 314, Regular Session, 85th Legislature, including implementing new Texas Optometry Act §351.5014 of Senate Bill 314. The amendments state that anonymous complaints cannot be accepted and that the agency will attempt to preserve the confidentiality of the complainant in the investigative process, with some exceptions. New Rule §277.11 authorizes the agency to require a licensee or applicant to submit to a Mental or Physical Examination if evidence of a incapacity prevents or could prevent the applicant or license holder from practicing with reasonable skill, competence, and safety to the public

Chris Kloeris, executive director of the Texas Optometry Board, estimates that for the first five-year period the proposal is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Chris Kloeris also has determined that for each of the first five years the proposal is in effect, the public benefit anticipated is that only valid complaints will be investigated by the agency and that the agency will be able to investigate, and if needed, restrict the practice of applicants or licensees who are prevented or could be prevented from competently practicing because of an incapacity

It is anticipated that there will be no economic costs for complainants or respondents, the only groups affected by the amendments to Rule §277.1. For new Rule §277.11, the agency is unable to predict economic costs for applicants or licensees who are required to submit to a Mental or Physical Examination and invites comments on possible economic costs. Only those applicants or licensees meeting the probable cause set out in this rule will be required to submit to an examination, and that examination could take many forms with costs possibly covered by other payors.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

The agency licenses approximately 4,000 optometrists and therapeutic optometrists. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. The agency does not license these practices.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT

The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.

The amendment and new rule are proposed under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.2045, and 351.205; and Senate Bill 314, Regular Session, 85th Legislature, including new §351.5014 in Senate Bill 314. No other sections are affected by the amendments and new rule.

The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §351.2045, and §351.205 as setting out the confidential status of a complaint and requiring the agency to adopt rules concerning the investigation of a complaint. Senate Bill 314 adds requirements regarding anonymous complaints and notice requirements for complaints from insurers, agents, administrators and drug companies. Senate Bill 314 in §351.5014 creates a process for the agency to order a physical or mental examination.

§277.1.Complaint Procedures.

(a) Filing complaints. Complaints may be filed in writing with the agency, either in person at the board's office, or by mail. The board shall adopt a form as its official complaint form which shall be maintained at the board's office for use at the request of any complainant. Complaints are privileged and confidential. At a minimum, all complaints shall contain information necessary for the proper processing of the complaint by the board, including, but not limited to:

(1) complainant's name, address, and phone number. The board cannot accept an anonymous complaint. The board shall protect the identity of a complainant in the investigative process to the extent possible. If the complainant is an insurance agent, insurer, pharmaceutical company, or third-party administrator, the board will notify the respondent within 15 days of the name and address of the complainant;

(2) name, address, and phone number of the optometrist, therapeutic optometrist, or other person, firm, or corporation, if known;

(3) date, time, and place of occurrence of alleged violation;

(4) complete description of incident giving rise to the complaint; and

(5) express authorization to release patient records to the Board where applicable.

(b) - (h) (No change.)

§277.11.Submission to Mental or Physical Examination.

(a) If the board has probable cause to believe that a licensee/applicant has developed an incapacity that prevents or could prevent the applicant or license holder from practicing optometry or therapeutic optometry with reasonable skill, competence, and safety to the public (an incapacity), the board shall require the licensee/applicant to submit to a mental and/or physical examination by a physician or other healthcare professional designated by the board. Probable cause may include, but is not limited to, any one of the following:

(1) sworn statements from two people, willing to testify before the board, that a certain licensee/applicant has developed an incapacity;

(2) a sworn statement from a representative of the Peer Assistance Program, stating that the representative is willing to testify before the board that a certain licensee/applicant has developed an incapacity;

(3) evidence that a licensee/applicant left a treatment program for alcohol or chemical dependency before a completion of that program;

(4) evidence that a licensee/applicant has engaged in the intemperate use of drugs or alcohol at a time and under circumstances that would lead a reasonable person to believe that the licensee/applicant has developed an incapacity;

(5) evidence of repeated arrests of a licensee/applicant for intoxication or drug use;

(6) evidence of recurring temporary commitments to a mental institution of a licensee/applicant;

(7) medical records showing that a licensee/applicant has an illness or condition that results in the inability to function properly in his or her practice; or

(8) actions or statements by a licensee/applicant at a hearing conducted by the board that gives the board reason to believe that the licensee has developed an incapacity.

(b) Upon presentation to the Executive Director of probable cause, the board authorizes the Executive Director to write the licensee/applicant requesting that the licensee/applicant submit to a physical or mental examination within 30 days of the receipt of the letter from the Executive Director. The letter shall state the reasons for the request for the mental or physical examination and the physician or other healthcare professional designated by the Executive Director to conduct such examinations. The applicant/licensee shall authorize the release of the results of the examination to the board and the results shall be submitted to the board within 15 days of the date of the examination. The results of any board-ordered mental or physical examination are confidential.

(c) If the licensee/applicant to whom a letter requiring a mental or physical examination is sent refuses to submit to the examination, the board, through its Executive Director, shall issue an order requiring the licensee/applicant to show cause why the licensee/applicant should not be required to submit to the examination and shall schedule a hearing on the order not later than 30 days after the date on which the notice of the hearing is provided to the licensee. The licensee/applicant shall be notified by either personal service or certified mail with return receipt requested.

(d) At the hearing provided in for in subsection (c) of this section, three members of the board appointed by the president of the board shall determine whether the licensee/applicant shall submit to an evaluation or that the matter shall be closed with no examination required.

(1) At the hearing, the applicant/licensee has the burden of proof once probable cause has been established by the board to rebut the probable cause. The applicant/licensee and the licensee/applicant's attorney, if any, are entitled to present testimony and other evidence to show why probable cause has not been established requiring the applicant/licensee to submit to the examination. An applicant/licensee is entitled to cross-examine an expert who offers testimony at the hearing.

(2) If, after consideration of the evidence presented at the hearing, the panel determines that the licensee/applicant shall submit to an examination, the panel shall authorize the Executive Director to issue an order requiring the examination within 60 days after the date of the entry of the order requiring examination. The applicant/licensee shall authorize the release of the results of the examination to the board, and the results shall be submitted to the board within 15 days of the date of the examination.

(3) If the panel determines that no such examination is necessary, the panel will withdraw the request for examination.

(e) The provisions of this rule shall not be construed so as to prohibit other appropriate disciplinary action under the Act, civil or criminal action and remedy and enforcement under other laws.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 22, 2017.

TRD-201703271

Chris Kloeris

Executive Director

Texas Optometry Board

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 305-8500