HOUSE BILL NO. 566
AS AMENDED BY HOUSE AMENDMENT NO. 2
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO OPTOMETRY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 21, Title 24 of the Delaware Code by adding a new §2100 which new Section shall read as follows:
The primary objective of the Board of Examiners in Optometry, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this Chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.
The secondary objectives of the Board are to maintain minimum standards of practitioner competency; and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners."
Section 2. Amend subsection (b), §2102, Chapter 21, Title 24 of the Delaware Code h) striking the first sentence of said subsection (b), and substituting in lieu thereof the following:
"(b) The Board shall consist of live members appointed by the Governor, who are residents of this state; three therapeutically certified optometrists engaged in the actual practice of optometry and two public members."
Section 3. Amend §2102, Chapter 21, Title 24 of the Delaware Code, by striking the present title of said Section and substituting in lieu thereof the following:
"§2102. Board of Examiners in Optometry, appointment; qualifications; terms of office;
vacancies: suspension or removal: unexcused absences; compensation."
Section 4. Amend subsection (b), §2102, Chapter 21, Title 24 of the Delaware Code, In striking the third sentence of current subsection (b).
Section 5. Amend subsection (c), §2102, Chapter 21, Title 24 of the Delaware Code. by striking said subsection and substituting in lieu thereof the following:
"(b) Said public members shall be accessible to inquiries, comments and suggestions from the general public and shall be entitled to full voting privileges on all aspects of all issues which conic before the Board including the licensing process."
Section 6. Amend subsection (1), §2102, Chapter 21, Title 24 of the Delaware Code. By striking said subsection in its entirety and substituting in lieu thereof the following:
"(f) A member of the Board shall be suspended or removed by the Governor or misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court."
Section 7. Amend subsection (g), §2102, Chapter 21, Title 24 of the Delaware Code, by striking said subsection in its entirety and substituting in lieu thereof the following:
"(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of optometrists."
Section 8. Amend §2102, Chapter 21, Title 24 of the Delaware Code, by adding a new subsection (h) which shall read as follows:
"(h) The provisions set forth for 'employees' in Chapter 58, Title 29 of the Delaware Code shall apply to all members of the Board, and to all agents appointed or otherwise employed by the Board."
Section 9. Amend §2102, Chapter 21, Title 24 of the Delaware Code, by adding a new subsection (i) which shall read as follows:
"(g) Any member who is absent without adequate reason for three consecutive meetings, or Mils to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty."
Section 10. Amend §2102. Chapter 21, Title 24 of the Delaware Code, by adding a new subsection (j) which shall read as follows:
"(h) - Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel; and in addition shall receive not more than $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year."
Section 11. Amend §2103, Chapter 21, Title 24 of the Delaware Code, by striking said Section in its entirety and substituting in lieu thereof the following:
"§2103, Organization meetings: officers: quorum.
(a) The Board shall hold a regularly scheduled business meeting at least once in each >ear. and at such times as the President deems necessary; or. at the request of a majority of the Board members.
(b) The Board shall elect annually a President and Secretary. Each officer shall serve for one year. and shall not succeed himself or herself for more than two consecutive terms.
(c) A majority of the members shall constitute a quorum for the purpose of transacting business. No disciplinary. action shall be taken without the affirmative vote of three members of the Board.
(d) Minutes of all meetings shall be recorded, and copies shall he maintained by the Division of Professional Regulation. At any hearing where evidence is presented, a record from %%Inch a verbatim transcript can be prepared shall be made. The expense of preparing any ,transcript shall be incurred by the person requesting it."
Section 12. Amend §2104. Chapter 21, Title 24 of the Delaware Code, by striking said Section m its entirety and by substituting in lieu thereof the following:
"§2104. Powers and Duties.
(a) The Board of Examiners in Optometry shall have authority to:
(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State. Each rule or regulation shall implement or clarify a specific section of this Chapter.
(2) Designate the application form to be used by all applicants, and to process all applications.
(3) Designate the written, standardized, national examination, approved by the Division of Professional Regulation, to be taken by all persons applying for licensure; applicants who qualify for licensure by reciprocity shall have achieved a passing score on the designated national examination.
(4) The Board shall adopt the administration, grading procedures, and passing score set by the national Board, or of a comparable alternative national or regional examination. if a national examination is not available.
(5) Establish minimum education, training, and experience requirements for licensure as optometrists.
(6) Evaluate the credentials of all persons applying for a licensure to practice optometry in Delaware in order to determine whether such persons meet the qualifications fly licensing set forth in this Chapter.
(3) Grant licenses to. and renew licenses of all persons who meet the qualifications for licensure and/or renewal of licenses.
(7) Establish by rule and regulation continuing education standards required for license renewal.
(8) Evaluate certified records to determine whether an applicant for licensure. who has been previously licensed, certified, or registered in another jurisdiction to practice optometry, has engaged in any act or offense that would he grounds for disciplinary action under this Chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicants for such acts or offenses.
(9) Refer all complaints from licensees and the public concerning licensed optometrists, or concerning practices of the Board or of the profession, to the Division of Professional Regulation for investigation pursuant to §8810 of Title 29 of the Delaware Code. and, assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint:
(10) Conduct hearings and issue orders in accordance with procedures established pursuant to this Chapter. Chapter 101 of Title 29 of the Delaware Code, and §88I0 of Title 29 of the Delaware Code. Where such provisions conflict with the provisions of this Chapter. this Chapter shall govern. The Board shall determine whether or not an optometrist shalt be subject to a disciplinary hearing, and if so. shall conduct such hearing in accordance with this Chapter and the Administrative Procedures Act.
(11) Where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed. to designate and impose the appropriate sanction or penalty after time lbr appeal has lapsed."
Section 13. Amend §2105, Chapter 21, Title 24-of the Delaware Code. by striking said Section in its entirety and by substituting in lieu thereof the following:
The amount to be charged for each lee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board. as well as the proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity. but no fee shall be charged for a purpose not specified in this Chapter. The application lee shall not be combined with any other fie or charge. At the beginning of each calendar year, the Division or Professional Regulation, or any other state agency acting in its behalf. shall compute, for each separate service or activity. the appropriate Boards fees for the coming year."
Section 14. Amend §2106. Chapter 21, Title 24 of the Delaware Code, by striking said Section and substituting in lieu thereof the following:
"§2106. License required
(a) No person shall engage in the practice of optometry or hold himself or herself out to the public in this State as being qualified to practice optometry: or use in connection with his or her name, or otherwise assume or use, any title or description conveying or tending to convey the impression that he or she is qualified to practice optometry, unless such person has been duly licensed under this Chapter.
(b) Whenever a license to practice as an optometrist in this State has expired or been suspended or revoked, it shall he unlawful for the person to practice optometry in this State.
Section 15. Amend §2107, Chapter 21, Title 24 of the Delaware Code, by striking said Section in its entirety and substituting in lieu thereof the following:
§2107 Qualifications of applicant; report to Attorney General; judicial review.
(a) An applicant who is applying for licensure as an optometrist under this Chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person.
(1) has received a degree of 'Doctor of Optometry' from a legally incorporated and accredited optometric college or school which has been approved by the appropriate accrediting body of the American Optometric Association.
(2) has achieved the passing score on a nationally recognized, written, standardized examination in optometry, approved by the Division of Professional Regulation; in addition all applicants must pass a nationally recognized standardized test on diagnosis, treatment and management of ocular disease approved by the Division.
(3) has completed a six-month internship in optometry, which shall be approved by the Board: the Board shall naive the internship when the applicant meets the requirements of §2109 of this Title.
(4) has not engaged in any of the acts or offenses that would he grounds for disciplinary action under this Chapter: and has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has previously been or currently is licensed as an optometrist.
(5) possesses current cardio-pulmonary resuscitation (CPR) certification for adults and children.
(b) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards liar him or her than for other applicants or licensees; or has in some other manner contributed to or cause t the failure of such application, the applicant may appeal to the Superior Court.
Section 16. Amend §2109, Chapter 21, title 24 of the Delaware Code. by striking said Section in its entirety and substituting in lieu thereof the following:
The Board shall waive the internship requirement for an applicant holding a valid license to practice optometry, issued by another jurisdiction, and who has practiced for a minimum of live years in such other jurisdiction with standards of licensure which are equal to or greater than those of this Chapter, and grant a license by reciprocity to such applicant. The applicant shall contact the National Practitioner Data Bank requesting that 3'erilication be sent to the Board regarding his or her licensure status. In addition, the applicant shall contact each jurisdiction where he or she currently is licensed, or has been previously licensed, or otherwise authorized to practice optometry, and request that a certified statement be provided to the Board stating whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved.
Applicants from jurisdictions, which have the same basic qualifications for licensure as this State, but that do not have essentially comparable or higher standards to qualify for 'therapeutic' licensing, shalt be required to meet the conditions of subsections (c) and (d), §2108 of this Title."
Section 17. Amend §2110, Chapter 21, Title 24 of the Delaware Code, by striking the present title of said Section and substituting in lieu thereof the following:
"§2110. Internship requirements: temporary licenses."
Section 18. Amend §2110, Chapter 21, Title 24 of the Delaware Code, by striking the words that is approved by the State Board" as the same appear in the second paragraph of said Section, and by substituting in lieu thereof the following: that is approved by the Division of Professional Regulation".
Section 19. Amend §2110, Chapter 21, Title 24 of the Delaware Code, by striking in its entirety the third paragraph of said §2110 beginning with the words "The Board shall waive" and ending with the words "those of this State.".
Section 20. Amend §2112, Chapter 21, Title 24 of the Delaware Code, by striking said Section in its entirety and by substituting in lieu thereof the following:
"§2112. Issuance and renewal of licenses
The Board shall issue a license to each applicant who meets the requirements of this Chapter for licensure as an optometrist and who pays the fee established under §2105 of this Title.
Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, and upon payment of the appropriate fee and submission of a renewal form provided by the Division of Professional Regulation, and proof that the licensee has met the continuing education requirements established by the Board.
The Board, in its rules and regulations, shall determine the period of time within which a licensed optometrist may still renew his or her license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date."
Section 21. Amend §2113, Chapter 21, Title 24 of the Delaware Code. by striking said Section in its entirety and by substituting in lieu thereof the following:
"§2113. Grounds for refusal, revocation or suspeuion of licenses.
(a) A practitioner licensed under this Chapter shall be subject to disciplinary actions set forth in §21I4 of this Chapter, if, after a hearing, the Board finds that the optometrist:
(1) has practiced in a merchandising store;
(2) has practiced in an office not exclusively devoted to the practice of optometry or other health care profession, where material or merchandise is displayed pertaining to it business or commercial undertaking not bearing any relation to the practice of optometry or other health care profession; or practicing in a store or office which does not conform to that used 11;, the majority of professional optometrists in the area;
(3) has continued in the employ of, or acted as an assistant to, any person. firm, corporation, either directly or indirectly, after he or she has knowledge that such person, firm or corporation is violating the laws of Delaware concerning the practice of optometry;
(4) has solicited in person or through an agent or agents for the purpose of selling ophthalmic materials or optometric services which involves any form of kickback arrangement or where financial remuneration, or payment in kind, is made to a non-practitioner to induce referral business from that non-practitioner;
(5) has caused or permitted the use of his or her name, profession, or professional title by or in conjunction with any association, company, corporation or unlicensed person, in any advertising of any manner, unless in conjunction with a vision service plan approved by the Board;
(4) has practiced for or in conjunction with, either directly or indirectly, a corporation or company, except that allowed under Chapter 6 of Title 8 of the Delaware Code; provided that the foregoing shall not prevent a person licensed pursuant to this Chapter from rendering optometric services at a nonprofit clinic which is operated by a corporation or company that is affiliated with a hospital licensed by the Department of Health and Social Services and accredited by the Joint Commission on Accreditation of Health Organizations (JCAI-I) or the American Osteopathic Association;
(6) has employed or knowingly cooperated in fraud or material deception in order to acquire a license as an optometrist; has impersonated another person holding a license or allowed another person to use his or her license, or aided or abetted a person not licensed as an optometrist to represent himself or herself as an optometrist;
(7) has been convicted of a felony or a crime involving the violation of a patient's trust; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor;
(5) has excessively used or abused drugs (including alcohol, narcotics, or chemicals);
(4) has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;
(11) has had his or her license, certification, or registration, as an optometrist suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the filets found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this Chapter. Every person licensed as an optometrist in this State shall be deemed to have given consent to the release of this information by the Board of Examiners in optometry, or other comparable agencies in another jurisdiction, and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;
(12) has failed to notify the Board that his or her license, certification, or registration as an optometrist in another state has been subject to discipline, or has been surrendered, suspended, or revoked. A certified copy of the record of disciplinary action, surrender, suspension. or revocation shall be conclusive evidence thereof.
(b) Where a practitioner fails to comply with the Board's request that he or she attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have the jurisdiction to issue such order.
(c) Subject to the provisions of this Chapter and Chapter 101, Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice optometry shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act."
Section 22. Amend §2114, Chapter 21, Title 24 of the Delaware Code, by striking said Section in its entirety and substituting in lieu thereof the following:
All complaints shall be received and investigated by the Division of Professional Regulation in accordance with §8810, Title 29 of the Delaware Code: and the Division shall he responsible for issuing a final written report at the conclusion of its investigation.
When it is determined that an individual is engaging in the practice of optometry or is using the title 'optometrist' and is not licensed under the laws of this State. the Board shall apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with the provisions of this Chapter.
Any complaints involving allegations of unprofessional conduct or incompetence shall he investigated by the Division of Professional Regulation."
Section 23. Amend §2115. Chapter 21, Title 24 of the Delaware Code, by striking said Section in its entirety and substituting in lieu thereof the following:
"§2115. Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination. when it finds that one of the conditions or violations set forth in §2113 of this Title applies to a practitioner regulated by this Chapter:
(1) Issue a letter of reprimand;
(2) Publicly censure a practitioner;
(3) Place a practitioner on probationary status, and require the practitioner to:
a. report regularly to the Board upon the matters which are the basis of the probation;
b. limit all practice and professional activities to those areas prescribed by the Board;
(4) Suspend any practitioner's license:
(5) Revoke any practitioner's license;
(6) Impose a monetary penalty not to exceed $500 for each violation in addition to suspension or revocation of a license.
(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.
(c) The Board may temporarily suspend a practitioners license in advance of a final adjudication, during the appeals process, but only in cases where there is clear and immediate danger to the health and safety and welfare of the public if the licensee is allowed to continue to practice. Such suspension may he appealed to Superior Court
(d) Where a license has been suspended due to a disability or the licensee, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety,
(e) As a condition to reinstatement or a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized undo this Chapter."
Section 24. Amend §2116. Chapter 21, Title 24 of the Delaware Code, by striking the words any ophthalmic assistant, nationally registered as a contact lens technician," as the same appear in said Section, and by substituting in lieu thereof the following. ''a nationally registered contact lens technician."
Section 25. Amend §2116. Chapter 21. Title 24 of the Delaware Code. by striking the words "said ophthalmic assistant's" as the same appear in said Section, and by substituting in lieu thereof the following: "said contact lens technician's".
Section 26. Amend §2117, Chapter 21. Title 24 of the Delaware Code, by striking the words "ocular practitioners" as the same appear in said Section, and by substituting in lieu thereof the billowing: "optometrists and ophthalmologists".
Section 27 Amend §2118. Chapter 21. Title 24 of the Delaware Code, by striking said Section in its entirety and by substituting in lieu thereof the following:
A person not currently licensed as an optometrist under this Chapter. when guilty of engaging in the practice of optometry, or using in connection with his or her name, or otherwise assuming or using any title or description conveying. or tending to convey the impression that he or she is qualified to practice optometry. shall be guilty of a misdemeanor. Upon the first offense. he or she shall be tined not less than $100.00 dollars nor more than $500.00 dollars for each offense; and. in addition. may he imprisoned fix not more than one year. For a second or subsequent conviction. the fine shall he not less than $500.00 nor more than $1.000.00 for each offense. Superior Court shall have jurisdiction over all violations of this Chapter."
Section 28. Amend §2 119. Chapter 21. Title 24 of the Delaware ('ode, by striking the present title and by substituting the following new title and wording in lieu thereof:
"§2119 Continuing education requirements
(a) Each optometrist licensed in this State shall be required to submit proof. acceptable to the Board, that he or she has completed 12 hours of optometric education, or such other scientific educational lectures, symposiums or courses. during each biennial license renewal period.
(b) Optometrists who are authorized to use and prescribe therapeutic pharmaceutical agents shall be required to attend 12 additional hours of courses in ocular pharmacology. diagnosis. or treatment of ocular disease, approved by the [board in each biennial license renewal period. All therapeutically certified optometrists must submit to the Board a copy of current cm-dm-pulmonary resuscitation (CORI certification.
(c) The hoard shall publish in its rules and regulations the guidelines governing acceptable continuing education requirements.
(d) In the event that am. optometrist licensed in this State fails to meet continuing education requirements, his or license shall he revoked. except when proven hardship makes compliance impossible. (he Board shall reinstate such license upon presentation of satisfactory cadence of successful completion of continuing education requirements and upon payment of all fees due "
Section 29. Amend §§2116 and 21 17. Chapter 21. I id,: 24 of the Delaware Code. by redesignating present §§2116 and 2117 as new §2118 and §2119, and by redesignating each succeeding Section accordingly.
Section 30. Amend Chapter 21, Title 24 of the Delaware Code, In adding thereto the tam% mg new Sections %%Inch shall read as follows:
"§2116. Hearing Procedures.
(a) If a complaint is filed with the board pursuant to §8810. Title 29 of the Delaware Code. alleging violation of §2115 of this Chapter, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with the Administrative Procedures Act. Chapter 101, Title 29 of the Delaware Code.
(b) All hearings shall be informal without use of rules of evidence. If the Board finds. by it majority vote of all members, that the complaint has merit, the hoard shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision, The Board's decision shall be mailed immediately to the practitioner.
(c) Where the practitioner is in disagreement with the action of the Board, he or she may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to him or her. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with §10144, Title 29 of the Delaware Code.
§2117. Reinstatement of a suspended license: removal from probationary status. replacement of license
(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee or registrant has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.
(a) Where a license has been suspended due to the licensee's inability to practice pursuant to this Chapter, the Board may reinstate such license, if, after a hearing, the Board is satisfied that the licensee is again able to perform the essential functions of an optometrist, with or without reasonable accommodations; and/or, there is no longer a significant risk of substantial harm to the health and safety of the individual or others.
(b) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this Chapter may also be required, as appropriate.
(c) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance."
Section 31, Rules and Regulations.
Rules and Regulations in effect on the date of enactment of this Act shall remain valid to the extent they are not inconsistent with this Act.
Section 32 Severability.
If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this Act, which can be given effect without the invalid provisions or applications, and to this end the provisions 01 this Act are severable.
Section 33. Amend subsections (a), (b) and (e), §2108, Title 24 of the Delaware Code 1) striking said subsections in their entirety.
Section 34. Amend subsection (d), §2108, Title 24 of the Delaware Code by striking the words "In addition to the requirements set forth in subsections (b) and (c) of this section, each" as the same appear in said subsection and substituting the word "Each" in lieu thereof.
Section 35. Amend §2108, Title 24 of the Delaware Code by renumbering current subsections (c) and (d) and new subsections (a) and (b).
Section 36. Amend §2110, Title 24 of the Delaware Code by striking the first paragraph of said Section and substituting in lieu thereof the following: "Every applicant, except those applicants who qualify for licensure by reciprocity, shall be required to complete a Board-approved -six-month internship in optometry. The internship shall be completed after the applicant has passed all parts of the national, written, standardized examination in optometry, which is approved by the Division, including the examination on the treatment, management of ocular disease (TMOD), approved by the Division."
Section 37. Amend §2111, Title 24 of the Delaware Code by striking the words "receive and endorsement" as the same appear in said Section, and by substituting the words "receive an endorsement" in lieu thereof.
Approved July 18, 1996