BILL NUMBER: AB 595 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 15, 2015
INTRODUCED BY Assembly Member Alejo
(Principal coauthor: Assembly Member Dodd)
( Coauthors: Assembly Members
Dababneh and Cristina Garcia )
( Coauthor: Senator Bates
)
FEBRUARY 24, 2015
An act to amend Section 2555 of Section
3077 of, to add Sections 3090.1 and 3109.1 to, to repeal Section 2556
of, and to repeal and add Sections 655 and 2555 of, the
Business and Professions Code, relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
AB 595, as amended, Alejo. Registered dispensing opticians:
certificates. optometrists: practices.
(1) The Optometry Practice Act provides for the licensure and
regulation of the practice of optometry by the State Board of
Optometry, and makes a violation of the act a crime. Existing law
requires individuals, corporations, and firms engaged in the business
of filling prescriptions of physicians and surgeons and optometrists
for prescription lenses and kindred products to register with the
Division of Licensing of the Medical Board of California as a
registered dispensing optician, and makes a violation of the
provisions governing registered dispensing opticians a crime.
(2) Existing law prohibits a licensed optometrist from having any
membership, proprietary interest, coownership, landlord-tenant
relationship, or any profit-sharing arrangement, in any form, whether
directly or indirectly, with any person licensed as a registered
dispensing optician, and prohibits a registered dispensing optician
from having any membership, proprietary interest, coownership,
landlord-tenant relationship, or any profit-sharing arrangement in
any form directly or indirectly with a licensed optometrist. Existing
law also prohibits a licensed optometrist from having any
membership, proprietary interest, coownership, landlord-tenant
relationship, or any profit-sharing arrangement in any form, directly
or indirectly, either by stock ownership, interlocking directors,
trusteeship, mortgage, trust deed, or otherwise with any person who
is engaged in the manufacture, sale, or distribution to physicians
and surgeons, optometrists, or dispensing opticians of lenses,
frames, optical supplies, optometric appliances or devices or kindred
products. Under existing law, a violation of the above provisions by
a licensed optometrist and any person, whether or not licensed, who
participates with a licensed optometrist in violating those
provisions constitutes a misdemeanor.
This bill would delete those provisions. The bill instead would
prohibit a licensed registered dispensing optician or a manufacturer
or distributor of optical goods that is renting or leasing office
space to or from, sharing office space with, or receiving space from
an optometrist from engaging in conduct that would influence or
interfere with the clinical decisions, as defined, of that
optometrist, as specified. The bill would prohibit an optometrist
that is using or sharing office space with a registered dispensing
optician from giving or receiving, among other things, a fee or thing
of material value, to or from any person in return for referral of
patients or to secure patients. The bill would make a violation of
these provisions punishable as a misdemeanor.
(3) Existing law permits a certificate of a registered dispensing
optician to be suspended, revoked, or subjected to probation for
violation of regulations or laws, as specified, or for incompetence,
gross negligence, or repeated similar negligent acts by the
registrant or an employee, as provided.
This bill would delete those provisions. The bill similarly would
permit a certificate of a registered dispensing optician to be
suspended, revoked, or subjected to probation for violation of
regulations or laws, as specified, or for incompetence, gross
negligence, or repeated negligent acts by the registrant or an
employee, as provided, and additionally would permit the certificate
to be suspended, revoked, or subjected to probation for
unprofessional conduct, which includes repeated interference with the
optometrist's clinical judgment or compliance with prevailing
clinical standards. The bill authorizes assessment of administrative
fines for violation of specified provisions of law and requires
registered dispensing opticians to cooperate with investigations into
a complaint or alleged violation of law.
(4) Under existing law, it is unlawful for a registered dispensing
optician to advertise the furnishing of, or to furnish, the services
of a refractionist, an optometrist, or a physician and surgeon; to
directly or indirectly employ or maintain on or near the premises
used for optical dispensing a refractionist, an optometrist, a
physician and surgeon, or a practitioner of any other profession for
the purpose of any examination or treatment of the eyes; or to
duplicate or change lenses without a prescription or order from a
person duly licensed to issue the same.
This bill would delete those prohibitions.
(5) The Optometry Practice Act prohibits a person from having an
office for the practice of optometry unless he or she is licensed to
practice optometry, and requires an optometrist that has more than
one office to comply with certain provisions of the act, including,
among others, that an optometrist obtain a branch office license for
any additional office. The act prohibits more than one branch office
license from being issued to an optometrist or any 2 or more
optometrists, jointly. The act requires an optometrist that had a
branch office prior to January 1, 1957, and who wants to continue
that branch office on or after that date to notify the board, as
specified.
The bill would delete the prohibition of an optometrist or 2 or
more optometrists, jointly, from having more than one branch office,
and would delete the requirement that an optometrist that had a
branch office prior to January 1, 1957, and who wants to continue
that branch office to notify the board. The bill would prohibit a
person from having any proprietary interest in an office for the
practice of optometry unless he or she is licensed to practice
optometry. The bill would specify that a branch office is any
additional office that is not the principal place of business of an
optometrist, as specified.
(6) The Optometry Practice Act prohibits an optometrist from
directly or indirectly accepting employment from any person not
having a valid, unrevoked license as an optometrist, except that the
act authorizes an optometrist to be employed by a physician and
surgeon who practices in the specialty of ophthalmology or by a
health care service plan.
This bill would require an optometrist to report to the State
Board of Optometry any action or circumstance that the optometrist
reasonably and in good faith believes is an attempt by a registered
dispensing optician, or an employee or agent thereof, to interfere
with the optometrist's independent clinical judgment or compliance
with prevailing clinical standards. The bill would require the State
Board of Optometry to report these complaints to the Division of
Licensing of the Medical Board of California.
(7) The bill also would require the State Board of Optometry to
receive any complaint made to a state board or department related to
care provided to a patient by a licensed optometrist.
(8) A violation of the optometry laws and the law governing
registered dispensing opticians is a crime. Therefore, by expanding
the scope of an existing crime, this bill would impose 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.
Existing law provides for the issuance of a certificate of
dispensing optician upon registration. Existing law permits a
certificate to be suspended, revoked, or subjected to probation for
violations of regulations or laws, as specified, or for incompetence,
gross negligence, or repeated similar negligent acts by the
registrant or an employee, as provided.
This bill additionally would permit a certificate to be suspended,
revoked, or subjected to probation for unprofessional conduct, as
defined. This bill also would permit a certificate to be suspended,
revoked, or subjected to probation for actions by the registrant's
agent.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 655 of the Business
and Professions Code is repealed.
655. (a) No person licensed under Chapter 7 (commencing with
Section 3000) of this division may have any membership, proprietary
interest, coownership, landlord-tenant relationship, or any
profit-sharing arrangement in any form, directly or indirectly, with
any person licensed under Chapter 5.5 (commencing with Section 2550)
of this division.
(b) No person licensed under Chapter 5.5 (commencing with Section
2550) of this division may have any membership, proprietary interest,
coownership, landlord-tenant relationship, or any profit sharing
arrangement in any form directly or indirectly with any person
licensed under Chapter 7 (commencing with Section 3000) of this
division.
(c) No person licensed under Chapter 7 (commencing with Section
3000) of this division may have any membership, proprietary interest,
coownership, landlord-tenant relationship, or any profit-sharing
arrangement in any form, directly or indirectly, either by stock
ownership, interlocking directors, trusteeship, mortgage, trust deed,
or otherwise with any person who is engaged in the manufacture,
sale, or distribution to physicians and surgeons, optometrists, or
dispensing opticians of lenses, frames, optical supplies, optometric
appliances or devices or kindred products.
Any violation of this section constitutes a misdemeanor as to such
person licensed under Chapter 7 (commencing with Section 3000) of
this division and as to any and all persons, whether or not so
licensed under this division, who participate with such licensed
person in a violation of any provision of this section.
SEC. 2. Section 655 is added to the
Business and Professions Code , to read:
655. (a) A person registered under Chapter 5.5 (commencing with
Section 2550), (registered dispensing optician), a person who is
engaged in the manufacture, sale or distribution to physicians and
surgeons, optometrists, or dispensing opticians of lenses, frames,
optical supplies, optometric appliances or devices or kindred
products that is renting or leasing office space, directly or through
an intermediary, to or from or otherwise using or sharing office
space with, or receiving space from, any person licensed under
Chapter 7 (commencing with Section 3000), (optometrist), shall not
engage in conduct that would influence or interfere with the clinical
decisions of that optometrist including, but not limited to, the
following:
(1) Setting quotas for the number of exams or limiting the amount
of time that an optometrist can spend with an individual patient.
(2) Holding an optometrist responsible for the sale of, or
requiring that person to sell, the eyewear of a registered dispensing
optician.
(3) Providing compensation to an optometrist for the sale of the
eyewear of a registered dispensing optician.
(b) The optometrist's clinical decisions means the judgment
necessary to perform or control any acts as set forth in Section
3041.
(c) An optometrist that is renting or leasing space to or from or
otherwise using or sharing office space with any registered
dispensing optician shall not give or receive a fee, salary,
commission, or thing of material value, in any manner or under any
pretext, to or from any person, firm, or corporation for either of
the following:
(1) In return for the referral of optometric patients.
(2) In order to secure optometric patients.
(d) In connection with the transactions described in (a), all of
the following shall be met:
(1) Registered dispensing opticians shall ensure signs and
displays concerning the optometrist's office shall have the name of
the doctor or doctors of optometry and the nature of the relationship
between the registered dispensing optician and the optometrist.
(2) The optometrist's office shall have a separate telephone
listing and number from that of the registered dispensing optician,
but may be accessible from a general number that the public
associates with the premises.
(3) Registered dispensing opticians shall not:
(A) Constrain the optometrist in scheduling patients, the fees
charged for optometric services, the amount of time spent with a
patient, or the number of patients to be seen in a particular time
period. The optometrist may contract to provide or arrange for the
provision of optometric services during agreed-upon hours and days.
(B) Limit the optometrist's participation in managed care or
insurance plans.
(C) Have an interest in the optometrist's patient records, to
which the optometrist shall have 24-hour access, including physical
access or electronic access.
(D) Advertise that it performs eye examinations or other
optometric services that it is not permitted to lawfully perform
under state law.
(4) The parties shall execute a written agreement, with
commercially reasonable terms, providing that rent payments are not
affected by either party's referral of any person or sales of product
by either party, and a term of at least one year, terminable only
for cause as defined under the agreement or at the expiration of the
agreement on at least 60 days' written notice.
(5) Optometric office space inside an optical dispensary shall be
definite and distinct from space occupied by other occupants of the
premises and shall include at least one private room for the
exclusive use of providing optometric services to patients by the
optometrist.
(6) Forms used by the optometric office shall be separate from
those of the registered dispensing optician.
(7) The optometrist shall be free to practice to the full scope of
his or her license under law, and shall control the hiring,
staffing, training, and office and employment policies of the
individuals employed or engaged to assist the optometrist in the
management and administrative aspects of his or her practice and in
patient care. The optometrist may contract for the provision of
technician and administrative services. Nothing herein shall limit
the right of the optometrist and the registered dispensing optician
to agree to restrict the optometrist from offering or selling
spectacles, lenses, frames, contact lenses or other optical goods to
the optometrist's patients or to the public in the occupied space
during the term of the written agreement.
(8) The optometrist shall be responsible for and shall maintain
full and independent control of information disseminated to the
public through any advertising or other commercial medium when that
information relates to optometric services being provided by the
optometrist, whether or not that advertising is paid for or sponsored
by the optometrist. It is not a violation of this section to include
in an advertisement that is not disseminated by the optometrist a
statement advertising the availability of optometric services,
including eye examinations, by an independent doctor of optometry
located adjacent to or in proximity to a registered dispensing
optician or a statement containing substantially similar language.
(e) A violation of this section is punishable as a misdemeanor.
SEC. 3. Section 2555 of the Business
and Professions Code is repealed.
2555. Certificates issued hereunder may in the discretion of the
division be suspended or revoked or subjected to terms and conditions
of probation for violating or attempting to violate this chapter,
Chapter 5.4 (commencing with Section 2540) or any regulation adopted
under this chapter or, Chapter 5.4 (commencing with Section 2540), or
Section 651, 654, or 655, or for incompetence, gross negligence, or
repeated similar negligent acts performed by the registrant or by an
employee of the registrant. The proceedings shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code, and the division
shall have all the powers granted therein.
SEC. 4. Section 2555 is added to the
Business and Professions Code , to read:
2555. (a) Certificates issued hereunder may in the discretion of
the division be suspended or revoked or subjected to terms and
conditions of probation for violating or attempting to violate this
chapter, Chapter 5.4 (commencing with Section 2540), any regulation
adopted under this chapter or Chapter 5.4 (commencing with Section
2540), or Section 651, 654, or 655, or for incompetence, gross
negligence, unprofessional conduct or repeated negligent acts
performed by the registrant or by an employee of the registrant.
Unprofessional conduct includes, but is not limited to, repeated
interference with the independent clinical judgment of an optometrist
or the optometrist's compliance with prevailing clinical standards
for the practice of optometry and when the registered dispensing
optician knows or has reason to know that the repeated interference
is impairing the optometrist's ability to provide appropriate health
care to his or her patients. Nothing herein shall limit the ability
of the optometrist to file a complaint about the registered
dispensing optician's interference directly with any state regulatory
agency with authority to oversee the practice of optometry or of
registered dispensing opticians. The proceedings shall be conducted
in accordance with Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code, and the division
shall have all the powers granted therein.
(b) If the division determines during a proceeding conducted in
accordance with subdivision (a) that a registered dispensing optician
has violated Section 655, the division may assess an administrative
fine of up to five thousand dollars ($5,000) for the first violation
and up to twenty-five thousand dollars ($25,000) for any subsequent
violation that occurs within three years after the division's finding
of a first violation. If a registered dispensing optician's second
violation of Section 655 occurs after three years of its first
violation, then the division shall assess a fine of up to five
thousand dollars ($5,000). This section is not to be construed to
limit the division's existing authority to enforce the provisions of
subdivision (a) or any other law.
(c) Registered dispensing opticians shall comply with all requests
for information by the division within 30 days after the request.
Failure to provide to the division, as directed, lawfully requested
copies of documents relating to a complaint or alleged violation of
the law shall constitute unprofessional conduct on the part of the
registered dispensing optician, unless the registered dispensing
optician is unable to provide the documents within the time period
for good cause, including, but not limited to, inability to access
the documents in the time allowed.
(d) Failure to cooperate and participate in any division
investigation pending against a registered dispensing optician
relating to a complaint or alleged violation of the law shall also
constitute unprofessional conduct by the registered dispensing
optician. This subdivision shall not be construed to deprive a
registered dispensing optician of any privilege guaranteed by the
Constitution of the United States or any other constitutional or
statutory privileges. The registered dispensing optician's assertion
of any applicable constitutional, statutory, or other privilege,
including, but not limited to, attorney-client privilege or attorney
work product privilege, is not a violation of this section.
(e) If the registered dispensing optician disputes a determination
by the division regarding a complaint or violation of the law, the
registered dispensing optician may appeal the division's decision to
an independent administrative law judge pursuant to Chapter 5
(commencing with Section 1100) of Part 1 of Division 3 of Title 2 of
the Government Code. Penalties, if any, shall be paid when all
appeals have been exhausted and the division's decision has been
upheld. In the event that the division's position has been upheld,
after all appeals have been exhausted the registered dispensing
optician shall be responsible for payment of all costs associated
with the prosecution of the matter.
(f) A registered dispensing optician shall not discharge,
terminate, suspend, threaten, harass, or retaliate or discriminate
against an optometrist because that optometrist files a complaint as
set forth in Section 3109.1 or any other complaint against a
registered dispensing optician, or for lawful acts done by an
optometrist in disclosing information relating to any complaint
against a registered dispensing optician. When an optometrist files a
complaint against a registered dispensing optician, the optometrist
shall have all of the protections provided in Section 1102.5 of the
Labor Code.
SEC. 5. Section 2556 of the Business
and Professions Code is repealed.
2556. It is unlawful to do any of the following: to advertise the
furnishing of, or to furnish, the services of a refractionist, an
optometrist, or a physician and surgeon; to directly or indirectly
employ or maintain on or near the premises used for optical
dispensing, a refractionist, an optometrist, a physician and surgeon,
or a practitioner of any other profession for the purpose of any
examination or treatment of the eyes; or to duplicate or change
lenses without a prescription or order from a person duly licensed to
issue the same.
SEC. 6. Section 3077 of the Business
and Professions Code is amended to read:
3077. As (a) As
used in this section, "office" means any office or other place
for the practice of optometry.
(a) No
(b) A person, singly or in
combination with others, may have not have
any proprietary interest in an office unless he or she is
licensed to practice optometry under this chapter.
(b)
(c) 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
(d) An optometrist, and
no or two or more optometrists jointly, may
not 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,
additional offices. An additional office that is not
the optometrist's principal place of practice, as described by
Section 3070, constitutes a branch office.
office for purposes of this chapter.
(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 Any
optometrist who desires to open a branch office that is
not his or her principal place of business shall notify the
board in writing in a manner prescribed by the board.
(f) On and after January 1, 1957, no A
branch office may not 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) 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 biennial 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.
renewal period. 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.
(j)
(i) The board shall have the power to adopt, amend, and
repeal rules and regulations to carry out the provisions of this
section.
(k) 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. 7. Sect ion 3090.1 is added to the
Business and Professions Code , to read:
3090.1. The State Board of Optometry shall receive any complaint
made to a state board or department related to care provided to a
patient by a licensed optometrist under Chapter 7 (commencing with
Section 3000).
SEC. 8. Section 3109.1 is added to the
Business and Professions Code , to read:
3109.1. (a) An optometrist shall report to the board any action
or circumstance that the optometrist reasonably and in good faith
believes constitutes a continued and unresolved attempt to interfere
with his or her independent clinical judgment or compliance with
prevailing clinical standards for the practice of optometry by a
registered dispensing optician or any employee or agent of the
registered dispensing optician that violates Section 655.
(b) The board shall report the complaint to the Division of
Licensing of the Medical Board of California, and the division shall
investigate the complaint pursuant to Section 2555.
(c) A registered dispensing optician shall not discharge,
terminate, suspend, threaten, harass, or in any other manner
retaliate or discriminate against an optometrist that files a good
faith complaint pursuant to this section or any other law, or for
lawful acts done by an optometrist in disclosing information relating
to any complaint against a registered dispensing optician. When an
optometrist files a good faith complaint against a registered
dispensing optician, the optometrist shall have all of the
protections provided in Section 1102.5 of the Labor Code.
SEC. 9. 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.
SECTION 1. Section 2555 of the Business and
Professions Code is amended to read:
2555. Certificates issued hereunder may in the discretion of the
division be suspended or revoked or subjected to terms and conditions
of probation for violating or attempting to violate this chapter,
Chapter 5.4 (commencing with Section 2540) or any regulation adopted
under this chapter or, Chapter 5.4 (commencing with Section 2540), or
Section 651, 654, or 655, or for incompetence, gross negligence,
unprofessional conduct, or repeated negligent acts performed by the
registrant or by an employee or agent of the registrant.
Unprofessional conduct includes, but is not limited to, repeated
interference with the independent clinical judgment of an optometrist
or with compliance by an optometrist with prevailing clinical
standards for the practice of optometry. The proceedings shall be
conducted in accordance with Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code, and
the division shall have all the powers granted therein.