HBA-MPM H.B. 2394 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2394
By: Maxey
Public Health
3/19/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, the Texas Optometry Act regulates the practice of optometry in
Texas.  H.B. 2394 amends this Act to update statutory references to the
recodification of the Open Meetings Act, the Open Records Act, and the
Administrative Procedures Act.  Furthermore, this bill revises dated
references throughout the Act, and makes substantive changes in the Act
with respect to the following: 

_the time limit that individuals may serve on the optometry board;
_the prevention of optical companies from controlling the practice of
optometrists regarding the number of patients the optometrist sees, and the
diagnostic procedures performed by the optometrist (such companies are also
prohibited from requiring direct access to the optometrist's computer
records); and 
_licensure by endorsement.

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 2.02(i), Article 4552-2.02, V.T.C.S. (Texas
Optometry Act), to prohibit the time a person serves on the Texas Optometry
Board (board) prior to September 1, 1998, rather than 1981, from counting
toward the two complete-term limitations placed on board members. 

SECTION 2.  Amends Article 3, Article 4552-3.01 et seq., V.T.C.S. (Texas
Optometry Act), by adding Section 3.085, as follows: 

Sec. 3.085. LICENSE WITHOUT EXAMINATION.  Authorizes the board to issue a
license to practice therapeutic optometry without requiring the applicant
to pass all or part of the examination required by Section 3.01 of this Act
if: 
 
_the applicant is licensed in good standing as a therapeutic optometrist in
another state, the District of Columbia, or a territory of the United
States; 
_the applicant has passed an examination that is substantially equivalent
to the examination required by Section 3.01 of this Act;  
_during at least five of the seven years preceding the application date,
the applicant has been actively engaged in the practice of therapeutic
optometry or engaged in full-time teaching at an accredited college of
optometry or medicine; 
_there are no pending disciplinary actions against the applicant in the
state, district, or territory in which the applicant is licensed; and 
_the applicant's license has never been suspended or revoked.

SECTION 3.  Amends Section 4.07, Article 4552-4.07, V.T.C.S. (Texas
Optometry Act), by adding Subsections (d)-(g), as follows: 

(d)  Provides that a complaint or investigation concerning a license holder
and all  information and materials compiled by the board in connection with
the complaint or investigation, except as provided by Subsections (e) and
(f) of this section, are confidential and privileged and not subject to
disclosure under Chapter 552 (Public Information), Government Code, or to
disclosure, discovery, subpoena, or other means of legal compulsion for
release of information to any person. 

(e) Authorizes the board, notwithstanding Subsection (d) of this section,
to disclose the number of complaints in each category filed with the board
regarding a license holder and the disciplinary action taken by the board
against a license holder. 

(f)  Provides that a complaint or investigation described by Subsection (d)
of this section and all information and materials compiled by the board in
connection with the complaint or investigation may be disclosed to the
board and its employees or agents involved in license holder discipline; a
party to a disciplinary action against the license holder or that party's
designated representative; or a law enforcement or other governmental
agency, if the disclosure is required or permitted by law. 

(g)  Requires the board to provide the license holder with access to all
information it intends to offer into evidence at a hearing no later than
the 30th day it receives a written request from a license holder who is
entitled to a hearing under this Act or from the license holder's attorney
of record, unless good cause for delay is shown to the presiding officer at
the hearing. 

SECTION 4.  Amends Section 5.06, Article 4552-5.06, V.T.C.S. (Texas
Optometry Act), to include contact lenses among other items that it is
unlawful for any person in this state to give, or cause to be given,
deliver, or cause to be delivered, in any manner whatsoever, as a prize or
premium, or as an inducement to sell any item of merchandise whatsoever.
Deletes book, paper, magazine, or any work of literature or art from the
merchandise listed.  Makes nonsubstantive changes. 

SECTION 5.  Amends Section 5.11(b), Article 4552-5.11, V.T.C.S. (Texas
Optometry Act), to include the following actions defined as "controlling or
attempting to control the professional judgment, the manner of practice, or
the practice or an optometrist or therapeutic optometrist" for purposes of
this section: 

_setting or attempting to set the minimum number of patients an optometrist
or therapeutic optometrist may see or the number of types of diagnostic
procedures an optometrist or therapeutic optometrist may perform; or 
_requiring or attempting to require that a person other than an optometrist
or therapeutic optometrist have computer access or other automatic access
to patient records, patient names, or other information relating to
patients. 

Makes conforming changes.

SECTION 6.  Amends Sections 5.12(a) and (c), Article 4552-5.12, V.T.C.S.
(Texas Optometry Act), as follows: 

(a)  Requires an optometrist or therapeutic optometrist to make and record
certain findings in the initial examination of a patient, if the
optometrist determines that the patient requires a prescription for an
opthalmic lens, rather than if the optometrist or therapeutic optometrist
signs or causes to be signed a prescription for an opthalmic lens.  Makes
nonsubstantive changes. 

(c)  Requires the willful or repeated failure or refusal of an optometrist
or therapeutic optometrist to comply with any of the foregoing requirements
to be considered by the board to constitute prima facie evidence that the
optometrist or therapeutic optometrist is unfit or incompetent by reason of
negligence within the meaning of Section 4.04(a)(2), rather than
4.04(a)(3), of this Act, and to be sufficient ground for the filing of
charges to cancel, revoke, or suspend a license.  Specifies that charges
stated against a person, or the person's attempts to establish compliance,
are in reference to this section, rather than this rule.  Section
4.04(a)(2) (Basic Competence) states that in order to ensure an adequate
examination of a patient for whom an optometrist or therapeutic optometrist
signs or causes to be signed a prescription for an ophthalmic lens, in the
initial examination of the patient the optometrist or therapeutic
optometrist shall make and record findings of the patient's visual acuity.
Makes conforming and nonsubstantive changes. 

SECTION 7.  Amends Sections 5.13(b), (c), and (j), Article 4552-5.13,
V.T.C.S. (Texas Optometry Act), as follows: 

(b)  Makes a conforming change.

(c)  Makes conforming and nonsubstantive changes.

(j)  Makes conforming changes.

SECTION 8.  Amends Section 5.14(a), Article 4552-5.14, V.T.C.S. (Texas
Optometry Act),  to make provisions of this section applicable to any
optometrist or therapeutic optometrist who leases space from, or, rather
than and, practices optometry or therapeutic optometry on the premises of a
mercantile establishment.  

SECTION 9.  Effective date: September 1, 1999.

SECTION 10.  Emergency clause.