California Senate Bill SB492 Amended / Bill

 BILL NUMBER: SB 492AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 4, 2014 AMENDED IN ASSEMBLY JULY 1, 2014 AMENDED IN ASSEMBLY JUNE 16, 2014 AMENDED IN ASSEMBLY AUGUST 5, 2013 AMENDED IN SENATE MAY 8, 2013 AMENDED IN SENATE APRIL 24, 2013 AMENDED IN SENATE APRIL 16, 2013 AMENDED IN SENATE APRIL 1, 2013 INTRODUCED BY Senator Hernandez FEBRUARY 21, 2013 An act to amend Sections 3041, 3041.1, and 3110 of the Business and Professions Code, relating to optometry. LEGISLATIVE COUNSEL'S DIGEST SB 492, as amended, Hernandez. Optometrist: practice: licensure. The Optometry Practice Act creates the State Board of Optometry, which licenses optometrists and regulates their practice. Existing law defines the practice of optometry to include, among other things, 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, as well as the provision of rehabilitative optometric services, and doing certain things, including, but not limited to, the examination of the human eyes, the determination of the powers or range of human vision, and the prescribing of contact and spectacle lenses. Existing law authorizes an optometrist certified to use therapeutic pharmaceutical agents to diagnose and treat specified conditions, use specified pharmaceutical agents, and order specified diagnostic tests. Any violation of the act is a crime. This bill would include the provision of habilitative optometric services within the scope of practice of optometry. The bill would expand the scope of practice of optometrists who are certified to use therapeutic pharmaceutical agents by, among other things, authorizing those optometrists to use all therapeutic pharmaceutical agents approved by the United States Food and Drug Administration and indicated for use in diagnosing and treating the eye conditions covered by these provisions. The bill would also modify the ability of an optometrist certified to use therapeutic pharmaceutical agents to diagnose and treat certain diseases. The bill would require the board to grant a certificate to an optometrist for the use of advanced procedures, as defined, if the optometrist meets certain educational and certification requirements. The board would also be required to grant a certificate to an optometrist for immunizations if the optometrist meets certain educational and certification requirements. The bill would authorize the board to allow optometrists to use any noninvasive technology to treat specified conditions. Existing law requires optometrists in diagnosing or treating eye disease to be held to the same standard of care as physicians and surgeons and osteopathic physicians and surgeons. This bill would expand this requirement to include diagnosing other diseases, and would require an optometrist to consult with and, if necessary, refer to a physician and surgeon or other appropriate health care provider if a situation or condition was beyond the optometrist's scope of practice. This bill would delete obsolete provisions and make conforming changes. Because this bill would change the definition of a crime, it would create a state-mandated local program. 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. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3041 of the Business and Professions Code is amended to read: 3041. (a) 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, as well as the provision of habilitative or rehabilitative optometric services, and is the doing of any or all of the following: (1) The examination of the human eye or eyes, or its or their appendages, and the analysis of the human vision system, either subjectively or objectively. (2) The determination of the powers or range of human vision and the accommodative and refractive states of the human eye or eyes, including the scope of its or their functions and general condition. (3) The prescribing or directing the use of, or using, any optical device in connection with ocular exercises, visual training, vision training, or orthoptics. (4) The prescribing of contact and spectacle lenses for, or the fitting or adaptation of contact and spectacle lenses to, the human eye, including lenses that may be classified as drugs or devices by any law of the United States or of this state. (5) The use of topical pharmaceutical agents for the purpose of the examination of the human eye or eyes for any disease or pathological condition. (b) (1) An optometrist who is certified to use therapeutic pharmaceutical agents, pursuant to Section 3041.3, may also diagnose and treat the human eye or eyes, or any of its or their appendages, for all of the following conditions: (A) Through medical treatment, infections of the anterior segment and adnexa. (B) Ocular allergies of the anterior segment and adnexa. (C) Ocular inflammation of the anterior segment and adnexa nonsurgical in cause, except when comanaged with the treating physician and surgeon. (D) Traumatic or recurrent conjunctival or corneal abrasions and erosions. (E) Corneal surface disease and dry eyes. Treatment for purposes of this subparagraph includes, but is not limited to, the use of mechanical lipid extraction of meibomian glands using nonsurgical techniques. (F) Ocular pain nonsurgical in cause, except when comanaged with the treating physician and surgeon. (G) Pursuant to subdivision (f), glaucoma in patients over 18 years of age, as described in subdivision  (m).   (n).  (H) Eyelid disorders, including hypotrichosis and blepharitis. (2) For purposes of this section, "treat" means the use of therapeutic pharmaceutical agents, as described in subdivision (c), and the procedures described in subdivision (e). (c) In diagnosing and treating the conditions listed in subdivision (b), an optometrist certified to use therapeutic pharmaceutical agents pursuant to Section 3041.3 may use all therapeutic pharmaceutical agents approved by the United States Food and Drug Administration and indicated for use in diagnosing and treating eye conditions set forth in this chapter, including codeine with compounds and hydrocodone with compounds as listed in the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code) and the federal Controlled Substances Act (21 U.S.C. Sec. 801 et seq.). The use of controlled substances shall be limited to five days. (d) In any case that an optometrist consults with a physician and surgeon, the optometrist and the physician and surgeon shall both maintain a written record in the patient's file of the information provided to the physician and surgeon, the physician and surgeon's response, and any other relevant information. Upon the request of the optometrist or physician and surgeon and with the patient's consent, a copy of the record shall be furnished to the requesting party. (e) An optometrist who is certified to use therapeutic pharmaceutical agents pursuant to Section 3041.3 may also perform all of the following: (1) Corneal scraping with cultures. (2) Debridement of corneal epithelia. (3) Mechanical epilation. (4) Venipuncture for testing patients suspected of having diabetes. (5) Suture removal, upon notification of the treating physician and surgeon or optometrist. (6) Treatment or removal of sebaceous cysts by expression. (7) Use of an auto-injector to counter anaphylaxis. (8) Ordering of  appropriate laboratory and diagnostic imaging tests necessary to diagnose conditions of the eye or adnexa.   smears, cultures, sensitivities, complete blood count, mycobacterial culture, acid fast stain, urinalysis, tear fluid analysis, and X-rays necessary for the diagnosis of conditions or diseases of the eye or adnexa. An optometrist may order other types of images subject to prior consultation with an ophthalmologist or appropriate physician and surgeon.  (9) A clinical laboratory test or examination  necessary to diagnose conditions of the eye or adnexa and  classified as waived under the federal Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Sec. 263a)  (CLIA). These laboratory tests are required to be performed in compliance with both CLIA and all clinical laboratory licensing requirements in Chapter 3 (commencing with Section 1200), and any ancillary personnel utilized shall be in compliance with those same requirements.   (CLIA) and designated as waived in paragraph (8) necessary for the diagnosis of conditions and diseases of the eye or adnexa, or if otherwise specifically authorized by this chapter.  (10) Punctal occlusion by plugs, excluding laser, diathermy, cryotherapy, or other means constituting surgery as defined in this chapter. (11) The prescription of therapeutic contact lenses, including lenses or devices that incorporate a medication or therapy the optometrist is certified to prescribe or provide. (12) Removal of foreign bodies from the cornea, eyelid, and conjunctiva with any appropriate instrument other than a scalpel. Corneal foreign bodies shall be nonperforating, be no deeper than the midstroma, and require no surgical repair upon removal. (13) For patients over 12 years of age, lacrimal irrigation and dilation, excluding probing of the nasal lacrimal tract. The board shall certify any optometrist who graduated from an accredited school of optometry before May 1, 2000, to perform this procedure after submitting proof of satisfactory completion of 10 procedures under the supervision of an ophthalmologist or lacrimal irrigation and dilation certified optometrist as confirmed by the ophthalmologist or lacrimal irrigation and dilation certified optometrist. Any optometrist who graduated from an accredited school of optometry on or after May 1, 2000, is exempt from the certification requirement contained in this paragraph. (f) The board shall grant a certificate to an optometrist certified pursuant to Section 3041.3 for the treatment of glaucoma, as described in subdivision  (m),   (n),  in patients over 18 years of age after the optometrist meets the following applicable requirements: (1) For licensees who graduated from an accredited school of optometry on or after May 1, 2008, submission of proof of graduation from that institution. (2) For licensees who were certified to treat glaucoma under this section prior to January 1, 2009, submission of proof of completion of that certification program. (3) For licensees who completed a didactic course of not less than 24 hours in the diagnosis, pharmacological, and other treatment and management of glaucoma, submission of proof of satisfactory completion of the case management requirements for certification established by the board pursuant to Section 3041.10. (4) For licensees who graduated from an accredited school of optometry on or before May 1, 2008, and not described in paragraph (2) or (3), submission of proof of satisfactory completion of the requirements for certification established by the  board pursuant to Section 3041.10.   board.  (g) The board shall grant to an optometrist, certified pursuant to subdivision (f), a certificate for the use of advanced procedures, as described in subdivision (h), after the optometrist meets the following applicable requirement: (1) Licensees who graduated from an accredited school of optometry, on or after May 1, 2016, shall submit proof of completion at that school of a satisfactory curriculum on advanced procedures, as determined by the board, including passage of a test for competency and performance of the procedures contained in subparagraph (F) of paragraph (2). (2) Licensees who graduated from an accredited school before May 1, 2016, are required to submit proof of completion of a board-approved course that meets all of the requirements in subparagraphs (A) to (G), inclusive. An optometrist certified pursuant to Section 3041.3 may perform the training procedures in their own practices under the supervision of a physician and surgeon or an optometrist with an advanced procedure certification. (A) Provided by an accredited school of optometry and developed in consultation with an ophthalmologist who has experience teaching optometric students. (B) Taught by full-time or adjunct faculty members of an accredited school of optometry. (C) Sponsored by an organization that meets the standards of Section 1536 of Title 16 of the California Code of Regulations. (D) Included passage of a test for competency. (E) Included all of the following didactic instruction: (i) Laser physics, hazards, and safety. (ii) Biophysics of laser. (iii) Laser application in clinical optometry. (iv) Laser tissue interactions. (v) Laser indications, contraindications, and potential complications. (vi) Gonioscopy. (vii) Laser therapy for open angle glaucoma. (viii) Laser therapy for angle closure glaucoma. (ix) Posterior capsulotomy. (x) Common complications: lids, lashes, and lacrimal. (xi) Medicolegal aspects of anterior segment procedures. (xii) Peripheral iridotomy. (xiii) Laser Trabeculoplasty. (xiv) Minor surgical procedures. (xv) Overview of surgical instruments, asepsis, and the federal Occupational Safety and Health Administration. (xvi) Surgical anatomy of the eyelids. (xvii) Emergency surgical procedures. (xviii) Chalazion management. (xix) Epilumeninesence microscopy. (xx) Suture techniques. (xxi) Local anesthesia: techniques and complications. (xxii) Anaphylaxsis and other office emergencies. (xxiii) Radiofrequency surgery. (xxiv) Postoperative wound care. (F) Included all of the following clinical  or laboratory experience:   experience on live human patients:   (i) Video demonstration.   (ii)   (i   )  Between 20 and 35 clinical eyelid or adnexa surgical training procedures, between 18 and 25 laser training procedures, and between 6 and 12 injection training procedures. The board shall convene an advisory committee to establish the exact number of training procedures required, including a minimum number of training procedures for each procedure listed in subdivision (h). The advisory committee shall be composed of the Director of Consumer Affairs or his or her appointee, who shall also serve as the  chair,   chairperson,  two practicing optometrists, two practicing ophthalmologists, one faculty member of a school of optometry, and one ophthalmologist that teaches at a school of optometry. The members of the advisory committee shall be appointed by the respective licensing boards. Recommendations from the advisory committee shall be reported to the board within six months of being convened.  (ii) Video demonstration.  (iii) A formal clinical  or laboratory  practical examination. (G) Required passage of a written test utilizing the National Board of Examiners in Optometry format. (h) For the purposes of this chapter, "advanced procedures" means any of the following: (1) Therapeutic lasers used for posterior capsulotomy secondary to cataract surgery. (2) Therapeutic lasers appropriate for treatment of glaucoma and peripheral iridotomy for the prophylactic treatment of angle closure glaucoma. (3) Removal, destruction, or drainage of lesions of the eyelid and adnexa clinically evaluated by the optometrist to be noncancerous. (4) Closure of a wound resulting from a procedure described in paragraph (3). (5) Injections for the treatment of conditions of the eye and adnexa described in paragraph (1) of subdivision (b), excluding intraorbital injections and injections administered for cosmetic effect.  (i) "Advanced procedures" does not include performing blepharoplasty or other cosmetic surgery procedures that reshape normal structures of the body in order to improve appearance and self-esteem.   (i)   (   j)  The board shall grant to an optometrist, certified pursuant to subdivision (f), a certificate for immunizations, as described in subdivision  (o),   (p),  after the optometrist meets all of the following applicable requirements: (1) For licensees who graduated, on or after May 1, 2016, from an accredited school of optometry that includes satisfactory curriculum on immunizations, as determined by the board, submission of proof of graduation from that institution. (2) Licensees who graduated from an accredited school before May 1, 2016, shall do all of the following: (A) Submit proof of completion of a board-approved immunization training program that, at a minimum, includes hands-on injection technique, clinical evaluation of indications and contraindications of vaccines, and the recognition and treatment of emergency reactions to vaccines, and shall maintain that training. (B) Be certified in basic life support for health care professionals. (C) Comply with all state and federal recordkeeping and reporting requirements, including providing documentation to the patient's primary care provider and entering information in the appropriate immunization registry designated by the immunization branch of the State Department of Public Health.  (j)   (   k)  Other than for prescription ophthalmic devices described in subdivision (b) of Section 2541, any dispensing of a therapeutic pharmaceutical agent by an optometrist shall be without charge.  (k)   (   l)  Except as authorized by this section, the practice of optometry does not include performing surgery. "Surgery" means any procedure in which human tissue is cut, altered, or otherwise infiltrated by mechanical or laser means. Nothing in this section shall limit an optometrist's authority to utilize diagnostic laser and ultrasound technology within his or her scope of practice.  (l)   (   m)  An optometrist licensed under this chapter is subject to the provisions of Section 2290.5 for purposes of practicing telehealth.  (m)   (   n)  For purposes of this chapter, "glaucoma" means either of the following: (1) All primary open-angle glaucoma. (2) Exfoliation and pigmentary glaucoma.  (n)   (  o)  For purposes of this chapter, "adnexa" means ocular adnexa.  (o)   (   p)  For the purposes of this chapter, "immunization" means administration of immunizations for influenza, Pertussis, herpes zoster virus, and additional immunizations that may be necessary to protect public health during a declared disaster or public health emergency in compliance with individual Advisory Committee on Immunization Practices (ACIP) vaccine recommendations published by the federal Centers for Disease Control and Prevention (CDC) for persons 18 years of age or older.  (p)   (   q)  In an emergency, an optometrist shall stabilize, if possible, and immediately refer any patient who has an acute attack of angle closure to an ophthalmologist.  (q)   (   r)  The board may authorize optometrists to use any noninvasive technology to treat a condition listed in paragraph (1) of subdivision (b). SEC. 2. Section 3041.1 of the Business and Professions Code is amended to read: 3041.1. With respect to the practices set forth in Section 3041, optometrists diagnosing or treating eye disease or diagnosing other diseases shall be held to the same standard of care to which physicians and surgeons and osteopathic physicians and surgeons are held. An optometrist shall consult with and, if necessary, refer to a physician and surgeon or other appropriate health care provider if a situation or condition occurs that is beyond the optometrist's scope of practice. SEC. 3. 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. (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  Section 290   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 blood borne 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  Care Services  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 blood borne pathogens in health care settings. As necessary, the board may consult with the Medical Board of California, the Board of Podiatric Medicine, the Board of Registered Nursing, and the Board of Vocational Nursing and Psychiatric Technicians, 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 if an examination of the eyes indicates a substantial likelihood of any pathology that requires the attention of that physician. SEC. 4. It is the intent of the Legislature that the Office of Statewide Health Planning and Development, under the Health Workforce Pilot Projects Program, designate a pilot project intended to test, demonstrate, and evaluate expanded roles for optometrists in the performance of management and treatment of diabetes mellitus, hypertension, and hypercholesterolemia. SEC. 5. 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.