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SB-1386 Optometry.(2017-2018)

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Date Published: 04/19/2018 09:00 PM
SB1386:v96#DOCUMENT

Amended  IN  Senate  April 19, 2018
Amended  IN  Senate  April 12, 2018
Amended  IN  Senate  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1386


Introduced by Senator McGuire

February 16, 2018


An act to amend Sections 3059, 3070, 3070, 3077, and 3110 of, and to add Sections 3041.4 and 16780 to, and to repeal Section 3077 of, the Business and Professions Code, relating to professions and vocations.


LEGISLATIVE COUNSEL'S DIGEST


SB 1386, as amended, McGuire. Optometry.
(1) The Optometry Practice Act provides for the licensure and regulation of the practice of optometry by the State Board of Optometry. The act prohibits engaging in the practice of optometry without an optometrist license from the board. The act specifies that the practice of optometry includes the prevention and diagnosis of disorders and dysfunctions of the visual system, and the treatment and management of certain disorders and dysfunctions of the visual system, among other things, and the doing of any or all of certain specified acts. system. Existing law requires an optometrist diagnosing or treating eye disease to be held to the same standard of care to which physicians and surgeons and osteopathic physicians and surgeons are held. Existing law specifies that a violation of the act is a misdemeanor punishable by fine or imprisonment, as provided.
This bill would require a licensee to provide professional optometric services, defined to include all of the acts described above, within a standard of care consistent with industry standards. The bill would require a licensee with an ownership interest in an optometric practice of 15% or more to ensure that the standard of care provided to patients within his or her practice meets a standard of care consistent with industry standards and to report to the board within 15 days of a termination or adverse action taken against an optometrist within the practice for care that did not meet that standard of care, as specified. The bill would provide failure to comply with this requirement is unprofessional conduct. be responsible for ensuring that industry standards of care are met in providing optometric services to patients in that optometric practice, and to report any termination or adverse actions taken against an optometrist related to the provision of substandard optometric care to the board within 15 days of that termination or adverse action. The bill would make all licensees with an ownership interest of 15% or more in an optometric practice who fail to submit this report guilty of unprofessional conduct.

Existing law requires the board to adopt regulations that require, as a condition to the renewal of an optometrist license, that all holders of licenses submit proof satisfactory to the board that they have informed themselves of the developments in the practice of optometry occurring since the original issuance of their licenses by pursuing one or more continuing education courses satisfactory to the board, as specified.

This bill would require the board to adopt regulations establishing a conflict of interest policy for its continuing education providers on or before January 1, 2021, as specified.

Existing law requires each licensed optometrist, before engaging in the practice of optometry, to notify the board in writing of the address or addresses where he or she is to engage in the practice of optometry and of any changes in his or her place of practice, after which a licensed optometrist is required to obtain a statement of licensure from the board to be placed in all practice locations other than an optometrist’s principal place of practice. Existing law exempts a licensed optometrist who holds a branch office license from the requirement to obtain a statement of licensure to practice at that branch office.
This bill would remove the exemption provided to a licensed optometrist who holds a branch office license from the requirement to obtain a statement of licensure to practice at that branch office.
Existing law prohibits a person, singly or in combination with others, from having an office or other place for the practice of optometry, unless he or she is licensed to practice optometry. Existing law authorizes an optometrist, or 2 or more optometrists jointly, to have one office without obtaining a branch office license from the board, however, an optometrist, and 2 or more optometrists jointly, may not have more than one office unless he, she, or they comply with specified licensure provisions as to the additional office, which constitutes a branch office.
This bill would repeal remove those provisions relating to licensure of branch offices. offices and would authorize an optometrist to own, maintain, or operate up to 12 branch offices.
Existing law authorizes the board to take action against any licensee who is charged with unprofessional conduct, and to deny an application for a license if the applicant has committed unprofessional conduct, which includes, among other things, directly or indirectly assisting in or abetting the violation of, or conspiring to violate any provision of, the Optometry Practice Act or regulations adopted by the board.
This bill would provide that “directly or indirectly assisting in or abetting a violation” under these provisions includes any licensee who has more than a 15% an ownership interest of 15% or more in an optometric practice who individually, or jointly with the other owners, knew or should have known of the violation of the act which constituted unprofessional conduct. Because a violation of various provisions of this bill under the Optometry Practice Act would be a crime, this bill would impose a state-mandated local program.
(2) Existing law declares that the purpose of the Unfair Practices Act is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent, and discriminatory practices by which fair and honest competition is destroyed or prevented. The act makes any person or any corporation that violates its provisions guilty of a misdemeanor punishable by a fine or imprisonment, as specified.
This bill would prohibit a person or entity from employing or contracting with an optometrist in any setting in which the optometrist is subject to interference in the exercise of his or her professional judgment in treating a patient and would specify that a violation of this provision shall be considered an unfair trade practice, punishable as specified. Because the bill would create a new crime, it would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3041.4 is added to the Business and Professions Code, to read:

3041.4.
 (a) A licensee shall provide professional optometric services within a standard of care consistent with industry standards. Professional optometric services include any act described in Section 3041.
(b) A licensee with an ownership interest in an any optometric practice of 15 percent or more shall ensure that the standard of care provided to patients within his or her practice meets a standard of care consistent with industry standards and shall report to the board within 15 days of a termination or adverse action taken against an optometrist within the practice for care that did not meet that standard of care. be responsible for ensuring that industry standards of care are met in providing optometric services to patients in that optometric practice. Any termination or adverse actions taken against an optometrist related to the provision of substandard optometric care shall be reported to the board within 15 days of that termination or adverse action. The report shall include the name and license number of the licensee involved, licensee, a description of the facts and circumstances of the action, cause, or reason, and any other relevant information deemed appropriate by the reporter. Failure of a licensee and the termination or adverse action taken. All licensees with an ownership interest of 15 percent or more in an optometric practice to submit the report within 15 days of the date of the termination or adverse action shall constitute unprofessional conduct. shall be guilty of unprofessional conduct for failure to submit this report.

SEC. 2.Section 3059 of the Business and Professions Code is amended to read:
3059.

(a)It is the intent of the Legislature that the public health and safety would be served by requiring all holders of licenses to practice optometry granted under this chapter to continue their education after receiving their licenses. The board shall adopt regulations that require, as a condition to the renewal thereof, that all holders of licenses submit proof satisfactory to the board that they have informed themselves of the developments in the practice of optometry occurring since the original issuance of their licenses by pursuing one or more courses of study satisfactory to the board or by other means deemed equivalent by the board.

(b)The board may, in accordance with the intent of this section, make exceptions from continuing education requirements for reasons of health, military service, or other good cause.

(c)If for good cause compliance cannot be met for the current year, the board may grant exemption of compliance for that year, provided that a plan of future compliance that includes current requirements as well as makeup of previous requirements is approved by the board.

(d)The board may require that proof of compliance with this section be submitted on an annual or biennial basis as determined by the board.

(e)An optometrist certified to use therapeutic pharmaceutical agents pursuant to Section 3041.3 shall complete a total of 50 hours of continuing education every two years in order to renew his or her certificate. Thirty-five of the required 50 hours of continuing education shall be on the diagnosis, treatment, and management of ocular disease in any combination of the following areas:

(1)Glaucoma.

(2)Ocular infection.

(3)Ocular inflammation.

(4)Topical steroids.

(5)Systemic medication.

(6)Pain medication.

(f)The board shall encourage every optometrist to take a course or courses in pharmacology and pharmaceuticals as part of his or her continuing education.

(g)The board shall consider requiring courses in child abuse detection to be taken by those licensees whose practices are such that there is a likelihood of contact with abused or neglected children.

(h)The board shall consider requiring courses in elder abuse detection to be taken by those licensees whose practices are such that there is a likelihood of contact with abused or neglected elder persons.

(i)On or before January 1, 2021, the board shall adopt regulations establishing a conflict of interest policy for continuing education providers in order to avoid approving a provider that has an inappropriate financial interest in optometrical services.

SEC. 3.SEC. 2.

 Section 3070 of the Business and Professions Code is amended to read:

3070.
 (a) Before engaging in the practice of optometry, each licensed optometrist shall notify the board in writing of the address or addresses where he or she is to engage in the practice of optometry and, also, of any changes in his or her place of practice. After providing the address or addresses and place of practice information to the board, a licensed optometrist shall obtain a statement of licensure from the board to be placed in all practice locations other than an optometrist’s principal place of practice. The practice of optometry is the performing or the controlling of any of the acts set forth in Section 3041.
(b) A licensed optometrist is not required to provide the notification described in subdivision (a) if he or she engages in the temporary practice of optometry. “Temporary practice” is defined as the practice of optometry at locations other than the optometrist’s principal place of practice for not more than five calendar days during a 30-day period, and not more than 36 days within a calendar year. This limitation shall apply to all practice locations where the licensed optometrist is engaging in temporary practice, not to each practice location individually. If the time period of the temporary practice needs to be extended for any reason, the licensed optometrist shall submit an application for a statement of licensure to the board pursuant to Section 1506 of Title 16 of the California Code of Regulations.
(c) Notwithstanding Section 3075, an optometrist engaging in the temporary practice of optometry at a location described in subdivision (b) shall carry and present upon demand evidence of his or her licensure but shall not be required to post his or her current license or other evidence of current license status issued by the board.
(d) In addition to the information required by Section 3076, a receipt issued to a patient by an optometrist engaging in the temporary practice of optometry at a location described in subdivision (b) shall contain the address of the optometrist’s primary practice location and the temporary practice location where the services were provided.

SEC. 4.Section 3077 of the Business and Professions Code is repealed.

SEC. 3.

 Section 3077 of the Business and Professions Code is amended to read:

3077.
 As used in this section, “office” means any office or other place for the practice of optometry.
(a) No person, singly or in combination with others, may have an office unless he or she is licensed to practice optometry under this chapter.

(b)An optometrist, or two or more optometrists jointly, may have one office without obtaining a branch office license from the board.

(c)On and after October 1, 1959, no

(b) No optometrist, and no two or more optometrists jointly, may have more than one office unless he or she or they comply with the provisions of this chapter as to an additional office. The additional office, for the purposes of this chapter, constitutes a branch office.

(d)Any optometrist who has, or any two or more optometrists, jointly, who have, a branch office prior to January 1, 1957, and who desire to continue the branch office on or after that date shall notify the board in writing of that desire in a manner prescribed by the board.

(e)On and after January 1, 1957, any optometrist, or any two or more optometrists, jointly, who desire to open a branch office shall notify the board in writing in a manner prescribed by the board.

(f)On and after January 1, 1957, no branch office may be opened or operated without a branch office license. Branch office licenses shall be valid for the calendar year in or for which they are issued and shall be renewable on January 1 of each year thereafter. Branch office licenses shall be issued or renewed only upon the payment of the fee therefor prescribed by this chapter.

On or after October 1, 1959, no more than one branch office license shall be issued to any optometrist or to any two or more optometrists, jointly.

(g)

(c) Any failure to comply with the provisions of this chapter relating to branch offices or branch office licenses as to any branch office shall work the suspension of the optometrist license of each optometrist who, individually or with others, has a branch office. An optometrist license so suspended shall not be restored except upon compliance with those provisions and the payment of the fee prescribed by this chapter for restoration of a license after suspension for failure to comply with the provisions of this chapter relating to branch offices.

(h)The holder or holders of a branch office license shall pay the annual renewal fee therefor in the amount required by this chapter between the first day of January and the first day of February of each year. The failure to pay the fee in advance on or before February 1 of each year during the time it is in force shall ipso facto work the suspension of the branch office license. The license shall not be restored except upon written application and the payment of the penalty prescribed by this chapter, and, in addition, all delinquent branch office fees.

(i)Nothing in this chapter shall limit or authorize the board to limit the number of branch offices that are in operation on October 1, 1959, and that conform to this chapter, nor prevent an optometrist from acquiring any branch office or offices of his or her parent. The sale after October 1, 1959, of any branch office shall terminate the privilege of operating the branch office, and no new branch office license shall be issued in place of the license issued for the branch office, unless the branch office is the only one operated by the optometrist or by two or more optometrists jointly.

Nothing in this chapter shall prevent an optometrist from owning, maintaining, or operating more than one branch office if he or she is in personal attendance at each of his or her offices 50 percent of the time during which the office is open for the practice of optometry.

(d) An optometrist may own, maintain, or operate up to 12 branch offices.

(j)

(e) The board shall have the power to adopt, amend, and repeal rules and regulations to carry out the provisions of this section.

(k)

(f) Notwithstanding any other provision of this section, neither an optometrist nor an individual practice association shall be deemed to have an additional office solely by reason of the optometrist’s participation in an individual practice association or the individual practice association’s creation or operation. As used in this subdivision, the term “individual practice association” means an entity that meets all of the following requirements:
(1) Complies with the definition of an optometric corporation in Section 3160.
(2) Operates primarily for the purpose of securing contracts with health care service plans or other third-party payers that make available eye/vision services to enrollees or subscribers through a panel of optometrists.
(3) Contracts with optometrists to serve on the panel of optometrists, but does not obtain an ownership interest in, or otherwise exercise control over, the respective optometric practices of those optometrists on the panel.

Nothing in this subdivision shall be construed to exempt an optometrist who is a member of an individual practice association and who practices optometry in more than one physical location, from the requirement of obtaining a branch office license for each of those locations, as required by this section. However, an optometrist shall not be required to obtain a branch office license solely as a result of his or her participation in an individual practice association in which the members of the individual practice association practice optometry in a number of different locations, and each optometrist is listed as a member of that individual practice association.

SEC. 5.SEC. 4.

 Section 3110 of the Business and Professions Code is amended to read:

3110.
 The board may take action against any licensee who is charged with unprofessional conduct, and may deny an application for a license if the applicant has committed unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following:
(a) Violating or attempting to violate, directly or indirectly assisting in or abetting the violation of, or conspiring to violate any provision of this chapter or any of the rules and regulations adopted by the board pursuant to this chapter. Directly “Directly or indirectly assisting in or abetting a violation violation includes, but is not limited to, any licensee who has more than 15 percent or more ownership interest in an optometric practice who individually, or jointly with the other owners, knew or should have known of the violation.
(b) Gross negligence.
(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions.
(d) Incompetence.
(e) The commission of fraud, misrepresentation, or any act involving dishonesty or corruption, that is substantially related to the qualifications, functions, or duties of an optometrist.
(f) Any action or conduct that would have warranted the denial of a license.
(g) The use of advertising relating to optometry that violates Section 651 or 17500.
(h) Denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a health care professional license by another state or territory of the United States, by any other governmental agency, or by another California health care professional licensing board. A certified copy of the decision or judgment shall be conclusive evidence of that action.
(i) Procuring his or her license by fraud, misrepresentation, or mistake.
(j) Making or giving any false statement or information in connection with the application for issuance of a license.
(k) Conviction of a felony or of any offense substantially related to the qualifications, functions, and duties of an optometrist, in which event the record of the conviction shall be conclusive evidence thereof.
(l) Administering to himself or herself any controlled substance or using any of the dangerous drugs specified in Section 4022, or using alcoholic beverages to the extent, or in a manner, as to be dangerous or injurious to the person applying for a license or holding a license under this chapter, or to any other person, or to the public, or, to the extent that the use impairs the ability of the person applying for or holding a license to conduct with safety to the public the practice authorized by the license, or the conviction of a misdemeanor or felony involving the use, consumption, or self-administration of any of the substances referred to in this subdivision, or any combination thereof.
(m) (1) Committing or soliciting an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of an optometrist.
(2) Committing any act of sexual abuse, misconduct, or relations with a patient. The commission of and conviction for any act of sexual abuse, sexual misconduct, or attempted sexual misconduct, whether or not with a patient, shall be considered a crime substantially related to the qualifications, functions, or duties of a licensee. This paragraph shall not apply to sexual contact between any person licensed under this chapter and his or her spouse or person in an equivalent domestic relationship when that licensee provides optometry treatment to his or her spouse or person in an equivalent domestic relationship.
(3) Conviction of a crime that requires the person to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1 of the Penal Code. A conviction within the meaning of this paragraph means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction described in this paragraph shall be considered a crime substantially related to the qualifications, functions, or duties of a licensee.
(n) Repeated acts of excessive prescribing, furnishing, or administering of controlled substances or dangerous drugs specified in Section 4022, or repeated acts of excessive treatment.
(o) Repeated acts of excessive use of diagnostic or therapeutic procedures, or repeated acts of excessive use of diagnostic or treatment facilities.
(p) The prescribing, furnishing, or administering of controlled substances or drugs specified in Section 4022, or treatment without a good faith prior examination of the patient and optometric reason.
(q) The failure to maintain adequate and accurate records relating to the provision of services to his or her patients.
(r) Performing, or holding oneself out as being able to perform, or offering to perform, any professional services beyond the scope of the license authorized by this chapter.
(s) The practice of optometry without a valid, unrevoked, unexpired license.
(t) The employing, directly or indirectly, of any suspended or unlicensed optometrist to perform any work for which an optometry license is required.
(u)  Permitting another person to use the licensee’s optometry license for any purpose.
(v) Altering with fraudulent intent a license issued by the board, or using a fraudulently altered license, permit certification or any registration issued by the board.
(w) Except for good cause, the knowing failure to protect patients by failing to follow infection control guidelines of the board, thereby risking transmission of bloodborne infectious diseases from optometrist to patient, from patient to patient, or from patient to optometrist. In administering this subdivision, the board shall consider the standards, regulations, and guidelines of the State Department of Public Health developed pursuant to Section 1250.11 of the Health and Safety Code and the standards, guidelines, and regulations pursuant to the California Occupational Safety and Health Act of 1973 (Part 1 (commencing with Section 6300) of Division 5 of the Labor Code) for preventing the transmission of HIV, hepatitis B, and other bloodborne pathogens in health care settings. As necessary, the board may consult with the Medical Board of California, the California Board of Podiatric Medicine, the Board of Registered Nursing, and the Board of Vocational Nursing and Psychiatric Technicians of the State of California, to encourage appropriate consistency in the implementation of this subdivision.
(x) Failure or refusal to comply with a request for the clinical records of a patient, that is accompanied by that patient’s written authorization for release of records to the board, within 15 days of receiving the request and authorization, unless the licensee is unable to provide the documents within this time period for good cause.
(y) Failure to refer a patient to an appropriate physician and surgeon if an examination of the eyes indicates a substantial likelihood of any pathology that requires the attention of that physician and surgeon.

SEC. 6.SEC. 5.

 Section 16780 is added to the Business and Professions Code, to read:

16780.
 (a) A person or entity shall not employ or contract with an optometrist in any setting in which the optometrist is subject to interference in the exercise of his or her professional judgment in treating a patient.
(b) A violation of this section shall be considered an unfair trade practice subject to action under Chapter 4 (commencing with Section 17000).

SEC. 7.SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.