§ 2100 Objectives.
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.
§ 2101 Definition of practice of optometry.
(a) "Practice of optometry" means the examination or measurement by any subjective or objective means including automated or testing devices for the diagnosis, treatment, and prevention of conditions of the human eye, lid, adnexa, and visual system as outlined below.
(1) "Practice of optometry" includes all of the following:
a. Use, adapting, and fitting of all types of lenses or devices except as provided in paragraph (a)(2) of this section.
b. Dispensing of any type of contact lenses that must be dispensed in accordance with a written, current contact lens prescription from a licensed physician or optometrist, including information that the Board may specify by rule or regulation.
c. Determination of refractive error or visual, muscular, or anatomical anomalies of the eye.
d. Provision or prescription of vision therapy, low-vision rehabilitation, or developmental or perceptual therapy.
(2) A license to practice optometry includes the utilization of any method or means which the optometrist is educationally qualified to provide, as established by the Delaware State Board of Examiners in Optometry and:
a. Includes performance of minor procedures on the surface of the skin of the ocular adnexa, of the cornea and conjunctiva of the globe and lid that can be performed safely with topical anesthesia and that would not require the use of injections or penetration of the globe, and the cutting or closure of human tissue by suture or staple, glue, adhesive, soldering, or cauterization. Also excludes anterior corneal stromal puncture, collagen cross-linking, postsurgical pterygium or conjuctival graft gluing of amniotic membranes, mechanical polishing of the corneal basement membrane, or any procedure that requires full- or partial-thickness incision of the sclera or cornea. Such minor procedures include: removal of superficial foreign body of the external eye conjunctiva; removal of conjunctival nonperforating foreign bodies; removal of a foreign body with or without slit lamp; superficial corneal scraping for diagnostic purposes; epilation of trichiasis by forceps; expression of conjunctival follicles; closure of lacrimal punctum by plug; intense pulsed light therapy; thermal treatment of eyelid margin for dry eye and blepharitis such as Lipiflow; and dilation of lacrimal punctum, with or without irrigation except on infant and toddler patients.
b. Prohibits surgery.
c. Prohibits the use of ophthalmic lasers or other modalities in which tissue is burned, vaporized, cut, or otherwise irreversibly altered by thermal, light-based, electromagnetic, radiation, chemical, ultrasound, infusion, cryotherapy, or similar means, excluding the use of pharmaceutical agents described in paragraph (a)(3) of this section.
d. Procedures must meet the standard of care as if performed by a physician.
(3) "Practice of optometry," as it relates to pharmaceutical agents, means as follows:
a. Includes the use of pharmaceutical agents for the diagnosis and treatment of diseases, disorders, and conditions of the eye and adnexa based on the licensing requirement that satisfies the requirement for graduate level coursework that includes general and ocular pharmacology as follows:
1. Prescription for controlled substances.
A. Schedule II controlled substances containing Hydrocodone, with a limitation on maximum 72-hour supply.
B. Schedules III, IV, and V controlled substances, with a limitation on maximum 72-hour supply.
2. Prescription for the use of an oral steroid with a limitation not to exceed a single 6-day methylprednisolone dose pack.
b. Includes the use of an epinephrine auto-injector to counteract anaphylaxis.
c. Excludes prescription for oral immuno-suppressives except for the use of oral steroids under § 2101(a)(3)a.2 of this title.
d. Excludes the prescription of oral antifungals.
e. Excludes the prescription of oral antimetabolites.
f. Excludes the prescription of any substance delivered intravenously or by injection.
g. Excludes any medication used solely for the treatment of systemic conditions outside the scope of an optometrist.
(b) For purposes of this chapter, the term "diagnostically certified optometrists" applies only to those currently licensed in the category and if that license lapses, the licensee could only relicense by meeting current licensing requirements in § 2107 of this title. The duties of a nondiagnostically certified optometrist are limited to those that do not utilize therapeutic pharmaceutical agents or perform procedures that require subsequent treatment with therapeutic pharmaceutical agents.
(c) In administering this chapter, the State Board shall, by rule or regulation, specify those acts, services, procedures and practices which constitute the "practice of optometry" within the definitions of this section and consistent with having submitted proof of graduate level coursework that includes general and ocular pharmacology.
(d) For purposes of disability insurance, workers' compensation, standard health and accident, sickness and other insurance policies, programs and plans, if the optometrist is authorized by law to perform the particular services, the optometrist shall be entitled to compensation for services under the said programs. Individuals entitled to such services shall have freedom to choose between any optometrist and any physician skilled in diseases of the eye.
(e) The practice of optometry also includes services provided by telemedicine and participation in telehealth. For the purposes of this section, "telehealth" is defined as the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. "Telemedicine" means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient's health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. "Distant site" means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. "Originating site" means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. "Store and forward transfer" means the transmission of a patient's medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time.
25 Del. Laws, c. 113, § 1; Code 1915, § 894; 37 Del. Laws, c. 69, § 1; 38 Del. Laws, c. 49, § 1; Code 1935, § 1003; 47 Del. Laws, c. 106, § 1; 24 Del. C. 1953, § 2101; 54 Del. Laws, c. 30; 59 Del. Laws, c. 250, §§ 1, 2, 13; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 172, §§ 1-3; 80 Del. Laws, c. 80, § 12; 80 Del. Laws, c. 356, § 1; 81 Del. Laws, c. 78, § 11.;
§ 2102 Board of Examiners in Optometry; appointment; qualifications; terms of office; vacancies; suspension or removal; unexcused absences; compensation.
(a) The Delaware State Board of Examiners in Optometry, heretofore established and hereafter in this chapter referred to as the "Board," shall carry out and enforce this chapter.
(b) The Board shall consist of 5 members appointed by the Governor, who are residents of this State: 3 duly-licensed optometrists engaged in the actual practice of optometry and 2 public members. Said public members: Shall not be or ever have been licensed as an optometrist, ophthalmologist or optician; shall not be a member of the immediate family of an optometrist, ophthalmologist or optician; shall not have been employed by an optometrist, ophthalmologist or optician; shall not have had a material financial interest in the providing of goods and services to those licensed in this chapter; shall not have been engaged in any activity directly related to optometry; and shall not have been licensed in any health-related field or be licensed to practice law.
(c) 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 come before the Board, including the licensing process.
(d) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served.
(e) Any act or vote by a person appointed in violation of subsection (d) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such amendment or revision amends this section to permit such an appointment.
(f) A member of the Board shall be suspended or removed by the Governor for 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.
(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of optometrists.
(h) The provisions set forth for "employees" in Chapter 58 of Title 29 shall apply to all members of the Board and to all agents appointed or otherwise employed by the Board.
(i) Any member who is absent without adequate reason for 3 consecutive meetings, or fails to attend at least 1/2 of all regular business meetings during any calendar year, shall be guilty of neglect of duty.
(j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9.
25 Del. Laws, c. 113, § 3; Code 1915, § 893; Code 1935, § 1002; 24 Del. C. 1953, § 2102; 50 Del. Laws, c. 482, § 1; 55 Del. Laws, c. 224, §§ 1, 2; 59 Del. Laws, c. 250, § 3; 66 Del. Laws, c. 1, § 1; 67 Del. Laws, c. 368, § 12; 69 Del. Laws, c. 288, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, §§ 2-10; 80 Del. Laws, c. 356, § 1; 81 Del. Laws, c. 85, § 11.;
§ 2103 Organization; meetings; officers; quorum.
(a) The Board shall hold a regularly scheduled business meeting at least once in each year 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 1 year, and shall not succeed himself or herself for more than 2 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 3 members of the Board.
(d) Minutes of all meetings shall be recorded and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it.
§ 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 [Chapter 101 of Title 29] 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 for licensing set forth in this chapter.
(7) Grant licenses to and renew licenses of all persons who meet the qualifications for licensure and/or renewal of licenses.
(8) Establish by rule and regulation continuing education standards required for license renewal.
(9) 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 be 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.
(10) 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 § 8735 of Title 29; 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.
(11) Conduct hearings and issue orders in accordance with procedures established pursuant to this chapter, Chapter 101 of Title 29 and § 8735 of Title 29. Where such provisions conflict with this chapter, this chapter shall govern. The Board shall determine whether or not an optometrist shall be subject to a disciplinary hearing, and if so, shall conduct such hearing in accordance with this chapter and the Administrative Procedures Act [Chapter 101 of Title 29].
(12) 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 for appeal has lapsed.
(b) The Board of Optometry shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of optometry.
§ 2105 Fees.
The amount to be charged for each fee 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 fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of 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.
25 Del. Laws, c. 113, § 11; Code 1915, § 902; 37 Del. Laws, c. 44, § 1; Code 1935, § 1012; 42 Del. Laws, c. 94, § 2; 24 Del. C. 1953, § 2105; 55 Del. Laws, c. 224, § 3; 60 Del. Laws, c. 460, § 1; 66 Del. Laws, c. 1, § 1; 70 Del. Laws, c. 546, § 13.;
§ 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 that person's name, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person 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 be unlawful for the person to practice optometry in this State.
§ 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 that includes diagnosis, treatment, and management of ocular disease, approved by the Division of Professional Regulation. The examination in this section must be administered at least once each year.
(3) Has completed a 6-month internship in optometry, which shall be approved by the Board; the Board shall waive 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 be grounds for disciplinary action under this chapter and has no disciplinary proceedings or unresolved complaints pending against the applicant 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.
(6) Has not been convicted of a felony sexual offense.
(7) Has submitted, at the applicant's expense, fingerprints and other necessary information in order to obtain the following:
a. A report of the applicant's entire criminal history record from the State Bureau of Identification or a statement for the State Bureau of Identification that the State Central Repository contains no such information relating to that person.
b. A report of the applicant's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Optometry shall be the screening point for the receipt of said federal criminal history records.
c. An applicant may not be licensed as an optometrist until the applicant's criminal history reports have been produced. An applicant whose record shows a prior criminal conviction may not be licensed by the Board unless a waiver is granted pursuant to § 2113(a)(8) of this title.
(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 for that applicant than for other applicants or licensees or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
(d) All individuals licensed to practice optometry in this State shall be required to be fingerprinted by the State Bureau of Investigation, at the licensee's expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant's expense, fingerprints and other necessary information in order to obtain a criminal background check.
25 Del. Laws, c. 113, § 5; Code 1915, § 896; 35 Del. Laws, c. 58, § 1; Code 1935, § 1006; 42 Del. Laws, c. 94, § 1; 47 Del. Laws, c. 106, § 2; 24 Del. C. 1953, § 2107; 53 Del. Laws, c. 108, § 22; 58 Del. Laws, c. 511, § 56; 59 Del. Laws, c. 250, § 4; 60 Del. Laws, c. 460, § 2; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, § 15; 79 Del. Laws, c. 277, § 7; 80 Del. Laws, c. 356, § 1.;
§ 2108 Examinations.
25 Del. Laws, c. 113, § 5; Code 1915, § 896; 35 Del. Laws, c. 58, § 1; Code 1935, § 1006; 42 Del. Laws, c. 94, § 1; 47 Del. Laws, c. 106, § 2; 24 Del. C. 1953, § 2108; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 4; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, §§ 33-35; repealed by 80 Del. Laws, c. 356, § 1, eff. Aug. 3, 2016.;
§ 2109 Reciprocity.
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 5 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 verification be sent to the Board regarding that applicant's licensure status. In addition, the applicant shall contact each jurisdiction where that applicant 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.
25 Del. Laws, c. 113, § 5; Code 1915, § 896; 35 Del. Laws, c. 58, § 1; Code 1935, § 1006; 42 Del. Laws, c. 94, § 1; 47 Del. Laws, c. 106, § 2; 24 Del. C. 1953, § 2109; 53 Del. Laws, c. 108, § 23; 60 Del. Laws, c. 460, § 3; 66 Del. Laws, c. 1, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, § 16; 80 Del. Laws, c. 356, § 1.;
§ 2110 Internship requirements; temporary licenses.
Every applicant, except those applicants who qualify for licensure by reciprocity, shall be required to complete a Board-approved 6-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 and management of ocular disease (TMOD), approved by the Division.
The Board may grant temporary licenses to any candidate successfully passing the written examinations. The temporary license shall be issued only for the duration of the internship.
Code 1935, c. 31; 47 Del. Laws, c. 106, § 5; 24 Del. C. 1953, § 2110; 50 Del. Laws, c. 482, § 2; 66 Del. Laws, c. 1, § 1; 67 Del. Laws, c. 200, § 2; 69 Del. Laws, c. 288, § 5; 70 Del. Laws, c. 546, §§ 17-19, 36; 80 Del. Laws, c. 356, § 1.;
§ 2111 Certification and registration for successful applicants.
All persons successfully passing the examinations for licensure as required by the chapter shall be registered in the Board Register, which shall be kept by the Division of Professional Regulation, as licensed to practice optometry and shall also receive an endorsement of such registration.
25 Del. Laws, c. 113, § 5; Code 1915, § 896; 35 Del. Laws, c. 58, § 1; Code 1935, § 1006; 42 Del. Laws, c. 94, § 1; 47 Del. Laws, c. 106, § 2; 24 Del. C. 1953, § 2111; 53 Del. Laws, c. 108, § 24; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 6; 70 Del. Laws, c. 546, § 37; 80 Del. Laws, c. 356, § 1.;
§ 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 that licensed optometrist's license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date.
An optometrist currently holding an active diagnostic license may not utilize therapeutic pharmaceutical agents or perform procedures that require subsequent treatment with therapeutic pharmaceutical agents. An optometrist holding an active diagnostic license may renew such license under the terms determined by the Board in the rules and regulations.
The 6-month internship for Delaware optometric licensure may not be completed under the supervision of a diagnostic optometrist.
A diagnostically-licensed optometrist may convert to an unrestricted license by completing the requirements set forth in the rules and regulations.
A lapsed diagnostic license may not be reactivated.
25 Del. Laws, c. 113, § 12; Code 1915, § 903; Code 1935, § 1013; 42 Del. Laws, c. 94, § 3; 24 Del. C. 1953, § 2112; 53 Del. Laws, c. 108, § 25; 59 Del. Laws, c. 250, § 12; 60 Del. Laws, c. 460, § 4; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 7; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, § 20; 80 Del. Laws, c. 356, § 1.;
§ 2113 Grounds for refusal, revocation or suspension of licenses.
(a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 2115 of this title if, after a hearing, the Board finds that the optometrist has:
(1) Practiced in a merchandising store;
(2) 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 a 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 by the majority of professional optometrists in the area;
(3) Continued in the employ of, or acted as an assistant to, any person, firm or corporation, either directly or indirectly, after the optometrist has knowledge that such person, firm or corporation is violating the laws of Delaware concerning the practice of optometry;
(4) 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 nonpractitioner to induce referral business from that nonpractitioner;
(5) Caused or permitted the use of that optometrist's 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;
(6) Practiced for or in conjunction with, either directly or indirectly, a corporation or company, except that allowed under Chapter 6 of Title 8; 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 (JCAH) or the American Osteopathic Association;
(7) 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 that optometrist's license; or aided or abetted a person not licensed as an optometrist to represent himself or herself as an optometrist;
(8) Been convicted of a crime that is substantially related to the practice of optometry. "Substantially related" means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of optometry. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(8), if it finds all of the following:
a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.
b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.
c. The applicant is capable of practicing optometry in a competent and professional manner.
d. The granting of the waiver will not endanger the public health, safety or welfare;
(9) Excessively used or abused drugs (including alcohol, narcotics or chemicals);
(10) Engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;
(11) Had that optometrist's 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 facts found by the appropriate authority in the other jurisdiction constitute 1 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) Failed to notify the Board that the optometrist's 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;
(13) Engaged in illegal, negligent or unethical conduct in the practice of optometry; or
(14) Violated any provision of this chapter or any rule or regulation of the Board.
(b) Where a practitioner fails to comply with the Board's request that the practitioner 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 this chapter and Chapter 101 of Title 29, 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 [Chapter 101 of Title 29].
25 Del. Laws, c. 113, § 13; Code 1915, § 904; 37 Del. Laws, c. 69, § 3; Code 1935, § 1014; 47 Del. Laws, c. 106, § 3; 24 Del. C. 1953, § 2113; 59 Del. Laws, c. 250, §§ 5-9; 63 Del. Laws, c. 115, § 2; 66 Del. Laws, c. 1, § 1; 70 Del. Laws, c. 149, § 212; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, § 21; 72 Del. Laws, c. 172, § 4; 74 Del. Laws, c. 262, § 41; 75 Del. Laws, c. 436, § 21; 77 Del. Laws, c. 199, § 17; 78 Del. Laws, c. 44, §§ 34, 35.;
§ 2114 Complaints.
All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29 and the Division shall be 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 be investigated by the Division of Professional Regulation.
§ 2115 Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 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; and
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; and/or
(7) The Board shall permanently revoke the license to practice optometry of a person who is convicted of a felony sexual offense.
(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.
(c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person's license, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee. An order temporarily suspending a license may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license.
(d) Where a license has been suspended due to a disability of 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 of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter.
§ 2116 Hearing procedures.
(a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, 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 of Title 29.
(b) All hearings shall be informal without use of rules of evidence. If the Board finds by a majority vote of all members that the complaint has merit, the Board 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, that practitioner 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 the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29.
§ 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.
(b) 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.
(c) 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.
(d) 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.
§ 2118 Exemptions.
(a) Nothing in this chapter shall be construed to prevent the sale and/or application of spectacles in the ordinary course of trade, provided no part of this chapter is violated by this exemption.
(b) Those persons having the degree of Doctor of Medicine or Doctor of Osteopathy and licensed to practice medicine and surgery in this State under Chapter 17 of this title shall be exempt from this chapter, and nothing in this chapter shall apply to or restrict a nationally registered contact lens technician, acting under a valid written spectacle prescription not more than 2 years old and under the supervision of a licensed ophthalmologist or optometrist, as defined in subsection (c) of this section, whose office is on the same premises as the contact lens technician. The contact lens technician shall keep the Board informed of the identity and office location of the contact lens technician's licensed supervising ophthalmologist or optometrist.
(c) For purposes of subsection (b) of this section, the following definitions apply:
(1) "On the same premises" means being within the same building as the designated licensed supervising ophthalmologist or optometrist. The building occupied by the designated licensed supervising ophthalmologist or optometrist must not include space with a building or structure owned, leased or occupied by the designated licensed supervising practitioner in which the designated licensed supervising practitioner does not engage in the regular and consistent practice of ophthalmology or optometry.
(2) "Supervision" means the regular and consistent physical presence and availability of a designated licensed supervising ophthalmologist or optometrist within the same building as the contact lens technician.
25 Del. Laws, c. 113, § 17; Code 1915, § 907; 37 Del. Laws, c. 69, § 6; Code 1935, § 1017; 24 Del. C. 1953, § 2117; 59 Del. Laws, c. 250, § 14; 61 Del. Laws, c. 346, § 1; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, §§ 24, 25, 29; 72 Del. Laws, c. 424, § 1.;
§ 2119 Discrimination by state boards between optometrists and ophthalmologists forbidden.
No state board or commission, created or existing by law, including public schools and other state agencies, in the performance of their duties, shall in any way show any discrimination between optometrists and ophthalmologists.
All boards or commissions shall honor ocular reports or other professional services by legally qualified and licensed optometrists in this State.
§ 2120 Penalty.
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 that person's name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the person is qualified to practice optometry, shall be guilty of a misdemeanor. Upon the first offense, that person shall be fined not less than $100 nor more than $500 for each offense; and, in addition, may be imprisoned for not more than 1 year. For a second or subsequent conviction, the fine shall be not less than $500 nor more than $1,000 for each offense. Superior Court shall have jurisdiction over all violations of this chapter.
25 Del. Laws, c. 113, §§ 15, 16; Code 1915, § 906; 37 Del. Laws, c. 69, § 5; 38 Del. Laws, c. 49, § 2; Code 1935, § 1016; 24 Del. C. 1953, § 2119; 54 Del. Laws, c. 332; 66 Del. Laws, c. 1, § 1; 69 Del. Laws, c. 288, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, §§ 27, 29.;
§ 2121 Continuing education requirements.
(a), (b) [Repealed.]
(c) The Board shall publish in its rules and regulations the guidelines governing acceptable continuing education requirements.
(d) In the event that any optometrist licensed in this State fails to meet continuing education requirements, that optometrist's license shall lapse, and not be eligible for renewal, at the end of the licensing period in which the requirements were not met. The Board may provide for hardship exceptions to the continuing education requirements in its rules and regulations. Subject to the time period for renewal established pursuant to § 2112 of this title, the Board shall renew such license upon presentation of satisfactory evidence of successful completion of continuing education requirements and upon payment of all fees due.
§ 2122 Prescription requirements.
(a) No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed:
(1) The name, address and phone number of the prescriber;
(2) The name and strength of the drug prescribed;
(3) The quantity of the drug prescribed;
(4) The directions for use of the drug;
(5) Date of issue.
(b) Optometrists who apply for a provider identifier number for controlled substances shall do so as outlined by the Division of Professional Regulation.
(c) A completed application must provide proof of graduate level coursework that includes general and ocular pharmacology.
(d) Controlled substances registration must include both of the following:
(1) Optometrists must register with the Drug Enforcement Agency [DEA] and use such DEA number for controlled substance prescriptions.
(2) Optometrists must register biennially with the Office of Controlled Substances in accordance with § 4732 of Title 16.
§ 2123 Duty to report conduct that constitutes grounds for discipline or inability to practice.
(a) Every optometrist to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation, in writing, information that the licensee reasonably believes indicates that any other optometrist licensed under this chapter or any other healthcare provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other healthcare provider's licensing statute.
(b) Every individual to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation, in writing, information that the licensee reasonably believes indicates that any other optometrist licensed under this chapter or any other healthcare provider may be unable to practice with reasonable skill and safety to the public by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol.
(c) Every individual to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation any information that the reporting individual reasonably believes indicates that an individual certified and registered to practice optometry in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol.
(d) All reports required under this section must be filed within 30 days of becoming aware of such information. An individual reporting or testifying in any proceeding as a result of making a report pursuant to this section is immune from claim, suit, liability, damages, or any other recourse, civil or criminal, if the individual acted in good faith and without gross or wanton negligence; good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.