79R7863 MSE-D

By:  Madla                                                        S.B. No. 1025


A BILL TO BE ENTITLED
AN ACT
relating to the regulation of the practice of optometry and therapeutic optometry. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. (a) This Act may be called the Eye Doctor Competition Act. (b) It is the policy of this state to: (1) promote maximum patient access to quality eye care in this state, both geographically and economically; (2) promote vigorous competition among well-trained optometrists and therapeutic optometrists so as to encourage better service and competitive pricing for eye care services while maintaining high quality care; (3) fully utilize the training and capabilities of this state's relatively scarce pool of highly skilled optometrists and therapeutic optometrists and to remove unreasonable impediments that prevent this state's highly skilled optometrists and therapeutic optometrists from being utilized to the full extent of their capabilities; and (4) remove outdated restrictions that effectively prevent highly skilled optometrists and therapeutic optometrists from using the latest health care technology as it is developed. (c) This Act is adopted to effectuate the policies of this state as outlined in this section. This Act shall be liberally construed to achieve that purpose. SECTION 2. Section 104.003, Occupations Code, is amended by amending Subsection (f) and adding Subsection (f-1) to read as follows: (f) A person who is licensed by the Texas Optometry Board as an optometrist shall use: (1) optometrist; (2) doctor, optometrist; (3) doctor of optometry; [or] (4) doctor, O.D.; or (5) O.D. (f-1) A person who is licensed by the Texas Optometry Board as a therapeutic optometrist shall use a designation approved and authorized by the board. SECTION 3. Section 351.002, Occupations Code, is amended by amending Subdivisions (1), (6), and (7) and adding Subdivisions (2-a), (2-b), (3-a), (3-b), (5-a), and (10) to read as follows: (1) "Adnexa" means the lids, [and] drainage system, and adjacent structures of the eye. (2-a) "Contact lens" means any lens designed to be placed directly on the eye, including a plano lens. (2-b) "CPT code" means the Current Procedural Terminology code, as published by the American Medical Association, in effect on January 1, 2004. (3-a) "Major surgery" means a surgical procedure other than a procedure that is minor surgery. The term includes cataract removal surgery. (3-b) "Minor surgery" means surgical procedures that: (A) are rational to the treatment of the human eye, adnexa, or visual system; (B) do not require general or retrobulbar anesthesia or opening the globe of the eye; and (C) are listed or approved for use by therapeutic optometrists under Section 351.3585 or 351.3586. (5-a) "Pharmaceutical agent" means any medication, drug, diagnostic agent, or therapeutic agent, including a controlled narcotic substance other than one listed in Schedule I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.), that is rational to the diagnosis or treatment of the human eye, adnexa, or visual system. (6) "Practice of optometry" means the examination and diagnosis of any disease, condition, or disorder of the human eye, adnexa, or visual system. The term does not include treatment with drugs or surgery. The term includes the performance or ordering of appropriate laboratory and diagnostic tests and procedures and the administration or prescription of: (A) lenses, prisms, or corrective devices, including spectacles or contact lenses; (B) vision therapy or low vision rehabilitation services; and (C) topical ocular pharmaceutical agents for diagnostic purposes [using objective or subjective means, with or without the use of topical ocular pharmaceutical agents, to: [(A) determine or measure the powers of vision of the human eye as provided by Section 351.355; [(B) examine or diagnose visual defects, abnormal conditions, or diseases of the human eye or adnexa; or [(C) prescribe or fit lenses or prisms to correct or remedy a defect or abnormal condition of vision as provided by Section 351.356]. (7) "Practice of therapeutic optometry" means the examination, diagnosis, and treatment of any disease, condition, or disorder of the human eye, adnexa, or visual system by any appropriate means. The term does not include the treatment of cancer or treatment with major surgery. The term includes the performance or ordering of appropriate laboratory and diagnostic tests and procedures, physical treatments, nonsurgical primary care procedures, and minor surgery, and the administration or prescription of: (A) lenses, prisms, or corrective devices, including spectacles or contact lenses; (B) vision therapy or low vision rehabilitation services; and (C) pharmaceutical agents to be administered in any manner rational to the diagnosis or treatment of the human eye, adnexa, or visual system [using objective or subjective means, not including surgery or laser surgery, to: [(A) determine or measure the powers of vision of the human eye as provided by Section 351.355; [(B) examine or diagnose visual defects, abnormal conditions, or diseases of the human eye or adnexa; [(C) prescribe or fit lenses or prisms to correct or remedy a defect or abnormal condition of vision as provided by Section 351.356; [(D) administer or prescribe a drug or physical treatment in the manner authorized by this chapter; or [(E) treat the visual system, including the eye or adnexa as authorized by this chapter]. (10) "Vision therapy" means the use of orthoptics, hand-eye coordination exercises, visual training, and developmental vision therapy and the evaluation and remediation of learning or behavioral disabilities associated with or caused by a defective or abnormal condition of vision. SECTION 4. Section 351.004, Occupations Code, is amended to read as follows: Sec. 351.004. SUNSET PROVISION. The Texas Optometry Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2017 [2005]. SECTION 5. Section 351.051(a), Occupations Code, is amended to read as follows: (a) The Texas Optometry Board consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) six [optometrists or] therapeutic optometrists; and (2) three members who represent the public. SECTION 6. Section 351.052(a), Occupations Code, is amended to read as follows: (a) A [An optometrist or] therapeutic optometrist member of the board must have been a resident of this state engaged in the practice of optometry or therapeutic optometry in this state for the five years preceding the date of the member's appointment. SECTION 7. Section 351.053(a), Occupations Code, is amended to read as follows: (a) A member or employee of the board may not: (1) be [a member of the faculty of a college of optometry or] an agent, paid consultant, officer, or employee of a wholesale optical company; (2) have a financial interest in a college of optometry or wholesale optical company; (3) be an officer, employee, or paid consultant of a trade association in the field of health care; or (4) be related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in the field of health care. SECTION 8. Section 351.054, Occupations Code, is amended to read as follows: Sec. 351.054. TERMS. (a) Members of the board serve staggered six-year terms. The terms of two [optometrist or] therapeutic optometrist members and one public member expire on January 31 of each odd-numbered year. (b) A member may not serve more than two complete terms. [Service on the board before September 1, 1981, does not count toward that limitation.] SECTION 9. Section 351.154(b), Occupations Code, is amended to read as follows: (b) The board shall deposit in the University of Houston development fund 25 [15] percent of each annual renewal fee collected by the board under Section 351.152. The money paid to that fund under this subsection may be used solely for scholarships or improvements in the physical facilities, including library facilities, of the College of Optometry. SECTION 10. Section 351.251, Occupations Code, is amended to read as follows: Sec. 351.251. LICENSE REQUIRED. (a) A person may not practice optometry [or therapeutic optometry] unless the person holds a license to practice optometry issued under this chapter. (b) A person may not practice therapeutic optometry unless the person holds a license to practice therapeutic optometry issued under this chapter. SECTION 11. The heading to Section 351.260, Occupations Code, is amended to read as follows: Sec. 351.260. [LIMITED LICENSE FOR] CLINICAL FACULTY. SECTION 12. Section 351.260, Occupations Code, is amended by adding Subsection (d) to read as follows: (d) A faculty member of an institution of higher education of this state who provides instruction in optometry or therapeutic optometry and who holds a license under this chapter may, in the course of teaching, perform and teach any procedure that may lawfully be performed by a licensed optometrist, therapeutic optometrist, or optometric physician in any other state. SECTION 13. Section 351.308(a), Occupations Code, is amended to read as follows: (a) An optometrist or therapeutic optometrist must take annual courses in subjects relating to the use and application of scientific, technical, and clinical advances in subjects relating to the practice of optometry or therapeutic optometry regularly taught in recognized optometric universities and schools[, including: [(1) vision care; [(2) vision therapy; and [(3) visual training]. SECTION 14. Section 351.351(b), Occupations Code, is amended to read as follows: (b) Not later than the 30th [10th] day after the date of a change in the information required to be filed with the board under Subsection (a), the license holder shall file with the board a written notice of the change. SECTION 15. Section 351.353, Occupations Code, is amended to read as follows: Sec. 351.353. INITIAL EXAMINATION OF PATIENT. To ensure adequate examination of a patient for whom an optometrist or therapeutic optometrist signs or causes to be signed an ophthalmic lens prescription, in the initial examination of the patient the optometrist or therapeutic optometrist shall make and record, if possible, the following findings concerning the patient's condition: (1) case history, consisting of ocular, physical, occupational, and other pertinent information; (2) visual acuity; (3) the results of a biomicroscopy examination, including an examination of the anterior segment of the eye and lids[, cornea, and sclera]; (4) the results of an internal ophthalmoscopic examination, including an examination of media and fundus; (5) objective and subjective refractive status [the results of a static retinoscopy, O.D., O.S., or autorefractor]; (6) [subjective findings, far point and near point; [(7)] assessment of binocular function; (7) assessment of functional near vision; (8) [amplitude or range of accommodation; [(9)] tonometry; and (9) assessment of visual fields [(10) angle of vision, to right and to left]. SECTION 16. Subchapter H, Chapter 351, Occupations Code, is amended by adding Sections 351.3585, 351.3586, and 351.3587 to read as follows: Sec. 351.3585. MINOR SURGICAL PROCEDURES THAT MAY BE PERFORMED BY THERAPEUTIC OPTOMETRIST. (a) The CPT code numbers in this section are provided only for reference. (b) A therapeutic optometrist may perform the minor surgical procedures listed in this section: (1) removal of foreign body, external eye; conjunctival superficial (CPT code 65205); (2) removal of foreign body, external eye; conjunctival embedded (includes concretions), subconjunctival, or scleral nonperforating (CPT code 65210); (3) removal of foreign body, external eye; corneal, without slit lamp (CPT code 65220); (4) removal of foreign body, external eye; corneal, with slit lamp (CPT code 65222); (5) repair of laceration; application of tissue glue, wounds of cornea or sclera (CPT code 65286); (6) scraping of cornea, diagnostic, for smear or culture (CPT code 65430); (7) correction of trichiasis; by forceps only (CPT code 67820); (8) removal of embedded foreign body, eyelid (CPT code 67938); (9) removal of foreign body or dacryolith, lacrimal passages (CPT code 68530); (10) closure of lacrimal punctum; by plug (CPT code 68761); (11) dilation of lacrimal punctum, with or without irrigation (CPT code 68801); (12) probing of lacrimal canaliculi, with or without irrigation (CPT code 68840); (13) probing of nasolacrimal duct, with or without irrigation (CPT code 68810); (14) removal of corneal epithelium; with or without chemocauterization (abrasion, curettage) (CPT code 65435); (15) removal of corneal epithelium; with application of chelating agent (EDTA, for example) (CPT code 65436); (16) multiple punctures of anterior cornea (for corneal erosion or tattoo, for example) (CPT code 65600); (17) blepharotomy, drainage of abscess, eyelid (CPT code 67700); (18) destruction of lesion of lid margin (up to one centimeter) (CPT code 67850); (19) incision of conjunctiva, drainage of cyst (CPT code 68020); (20) expression of conjunctival follicles (for trachoma, for example) (CPT code 68040); (21) subconjunctival injection (CPT code 68200); (22) injection of contrast medium for dacryocystography (CPT code 68850); and (23) any other surgical procedures for which the therapeutic optometrist has been certified by the board under Section 351.3586. Sec. 351.3586. MINOR SURGICAL PROCEDURES REQUIRING CERTIFICATION. (a) The CPT code numbers in this section are provided only for reference. (b) A therapeutic optometrist who has completed the education and testing requirements established for a procedure listed in this section may perform that procedure. (c) The board by rule shall adopt additional education and testing requirements that a therapeutic optometrist must complete before being certified to perform a minor surgical procedure listed in this section: (1) repair of laceration; conjunctiva, with or without nonperforating laceration sclera, direct closure (CPT code 65270); (2) corneal relaxing incision for correction of surgically induced astigmatism (CPT code 65772); (3) trabeculoplasty by laser surgery (CPT code 65855); (4) severing adhesions of anterior segment, laser technique (CPT code 65860); (5) iridotomy/iridectomy by laser surgery (for glaucoma, for example) (CPT code 66761); (6) iridoplasty by photocoagulation (for improvement of vision or for widening of anterior chamber angle, for example) (CPT code 66762); (7) discission of secondary membranous cataract (opacified posterior lens capsule or anterior hyaloid); laser surgery (YAG laser, for example) (CPT code 66821); (8) prophylaxis of retinal detachment (retinal break or lattice degeneration, for example) without drainage, one or more sessions; photocoagulation (laser or xenon arc) (CPT code 67145); (9) destruction of localized lesion of choroid (choroidal neovascularization, for example); photodynamic therapy (includes intravenous infusion) (CPT codes 67221 and 67225); (10) injection of medication or another substance into Tenon's capsule (CPT code 67515); (11) severing of tarsorrhaphy (CPT code 67710); (12) excision of chalazion (CPT codes 67800, 67801, and 67805); (13) biopsy of eyelid (CPT code 67810); (14) correction of trichiasis; epilation by other than forceps (by electrosurgery, cryotherapy, or laser surgery, for example) (CPT code 67825); (15) excision of lesion of eyelid (except chalazion) without closure or with simple direct closure (CPT code 67840); (16) temporary closure of eyelids by suture (Frost suture, for example) (CPT code 67875); (17) repair of ectropion, thermocauterization (CPT code 67915); (18) biopsy of conjunctiva (CPT code 68100); (19) incision, drainage of lacrimal sac (dacryocystotomy or dacryocystostomy) (CPT code 68420); (20) snip incision of lacrimal punctum (CPT code 68440); (21) correction of everted punctum, cautery (CPT code 68705); (22) closure of lacrimal punctum; by thermocauterization, ligation, or laser surgery (CPT code 68760); (23) cosmetic tattoo of the lid or adnexa; (24) photo-refractive keratectomy (PRK); (25) laser-assisted in situ keratomileusis (Lasik); (26) conductive keratoplasty (CK); (27) photo-therapeutic keratectomy (PTK); and (28) other minor surgical procedures approved by the board that: (A) do not require general anesthesia, retrobulbar anesthesia, or opening of the globe of the eye; and (B) are rational to the treatment of the human eye, adnexa, or visual system. Sec. 351.3587. REMOVAL FOR ORGAN DONATION. A therapeutic optometrist may remove all or part of the eye from a deceased person for transplant or other scientific purposes. SECTION 17. Section 351.360, Occupations Code, is amended to read as follows: Sec. 351.360. PROFESSIONAL STANDARD OF THERAPEUTIC OPTOMETRIST. A therapeutic optometrist[, including an optometric glaucoma specialist,] is subject to the same standard of professional care and judgment as a person practicing as an ophthalmologist under Subtitle B. SECTION 18. Section 351.362(b), Occupations Code, is amended to read as follows: (b) An optometrist or therapeutic optometrist practicing in this state shall display the actual name under which the optometrist or therapeutic optometrist is licensed by the board, so that the name is visible to the public before entry into the optometrist's or therapeutic optometrist's office reception area. This subsection does not apply to a person acting as a temporary relief optometrist or a temporary relief therapeutic optometrist. SECTION 19. Subchapter H, Chapter 351, Occupations Code, is amended by adding Section 351.367 to read as follows: Sec. 351.367. COMANAGED CARE. (a) In this section, "comanage" means to share peri-operative or other diagnosis and treatment responsibilities between a physician licensed under Subtitle B and a therapeutic optometrist. (b) Notwithstanding any other law, a physician licensed under Subtitle B may: (1) comanage surgery or other procedures with a therapeutic optometrist, provided that the services provided by the therapeutic optometrist must be within the scope of practice of the therapeutic optometrist; and (2) rely on the professional judgment of a therapeutic optometrist if the professional judgment relates to a matter within the scope of practice of the therapeutic optometrist. SECTION 20. Section 351.404, Occupations Code, is amended to read as follows: Sec. 351.404. OPHTHALMIC GOODS OR SERVICES [EYEGLASSES] AS PRIZE OR INDUCEMENT. A person in this state may not give or deliver, or cause to be given or delivered, in any manner, ophthalmic goods or services as an inducement to sell nonophthalmic goods or services. This section is not intended to prevent the donation of ophthalmic goods or services for charitable purposes [eyeglasses as: [(1) a prize or premium; or [(2) an inducement to sell an item of merchandise, including a book, paper, magazine, or work of literature or art]. SECTION 21. Section 351.452, Occupations Code, is amended to read as follows: Sec. 351.452. PROHIBITED USE OF SCHEDULE I CONTROLLED SUBSTANCE [PHARMACEUTICAL AGENT]. A therapeutic optometrist may not administer or prescribe a controlled substance included in Schedule I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.) [use a pharmaceutical agent not authorized by the board or by law]. SECTION 22. Section 351.4521, Occupations Code, is amended to read as follows: Sec. 351.4521. PERFORMANCE OF MAJOR SURGERY PROHIBITED. A therapeutic optometrist may not perform major surgery [or laser surgery]. SECTION 23. Section 351.552(a), Occupations Code, is amended to read as follows: (a) The amount of an administrative penalty may not exceed $5,000 [$2,500] for each violation. Each day a violation continues or occurs is a separate violation. SECTION 24. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.078 to read as follows: Sec. 531.078. REDUCED PAYMENT FOR CERTAIN MINOR SURGICAL PROCEDURES. The commissioner shall set the reimbursement rate payable to a therapeutic optometrist under the state Medicaid program for a procedure listed in Sections 351.3585(b)(14)-(23) and 351.3586(c), Occupations Code, at 90 percent of the reimbursement rate payable to an ophthalmologist for the same procedure. SECTION 25. Sections 351.160, 351.165, 351.354, 351.355, 351.358, and 351.3581, Occupations Code, are repealed. SECTION 26. (a) The change in law made by this Act to Section 351.051, Occupations Code, does not affect the entitlement of an optometrist serving on the Texas Optometry Board immediately before the effective date of this Act to continue to serve as a board member for the remainder of the member's term. An optometrist who is serving on the Texas Optometry Board on the effective date of this Act may be reappointed to the board if the optometrist has the qualifications required for a board member under Subchapter B, Chapter 351, Occupations Code, as amended by this Act. (b) The change in law made by this Act does not prohibit a person certified by the Texas Optometry Board as an "optometric glaucoma specialist" on the effective date of this Act from continuing to use that designation if the person is licensed by the board as a therapeutic optometrist. (c) It is the intention of the legislature that the changes in law made by this Act are not intended to and will not have the effect of preventing an optometrist or therapeutic optometrist from performing any act that the optometrist or therapeutic optometrist could legally perform before the enactment of this Act. SECTION 27. This Act takes effect September 1, 2005.