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

Senate Bill No. 492

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 begin delete (m). end delete begin insert (n). end insert

(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 begin delete appropriate laboratory and diagnostic imaging
tests necessary to diagnose conditions of the eye or adnexa. end delete begin insert 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. end insert

(9) A clinical laboratory test or examination begin delete necessary to
diagnose conditions of the eye or adnexa and end delete classified as waived
under the federal Clinical Laboratory Improvement Amendments
of 1988 (42 U.S.C. Sec. 263a) begin delete (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. end delete
begin insert (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. end insert

(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 begin delete (m), end delete begin insert (n), end insert 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 begin delete board
pursuant to Section 3041.10. end delete begin insert board. end insert

(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 begin delete or laboratory
experience: end delete begin insert experience on live human patients: end insert

begin delete

(i) Video demonstration.

end delete begin delete

(ii)

end delete

begin insert (i end insert begin insert ) end insert  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 begin delete chair, end delete begin insert chairperson, end insert 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.

begin insert

(ii) Video demonstration.

end insert

(iii) A formal clinical begin delete or laboratory end delete 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.

begin insert

(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.

end insert begin delete

(i)

end delete

begin insert ( end insert begin insert j) end insert  The board shall grant to an optometrist, certified pursuant to
subdivision (f), a certificate for immunizations, as described in
subdivision begin delete (o), end delete begin insert (p), end insert 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.

begin delete

(j)

end delete

begin insert ( end insert begin insert k) end insert  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.

begin delete

(k)

end delete

begin insert ( end insert begin insert l) end insert  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.

begin delete

(l)

end delete

begin insert ( end insert begin insert m) end insert  An optometrist licensed under this chapter is subject to the
provisions of Section 2290.5 for purposes of practicing telehealth.

begin delete

(m)

end delete

begin insert ( end insert begin insert n) end insert  For purposes of this chapter, “glaucoma” means either of
the following:

(1) All primary open-angle glaucoma.

(2) Exfoliation and pigmentary glaucoma.

begin delete

(n)

end delete

begin insert ( end insert begin insert o) end insert  For purposes of this chapter, “adnexa” means ocular adnexa.

begin delete

(o)

end delete

begin insert ( end insert begin insert p) end insert  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.

begin delete

(p)

end delete

begin insert ( end insert begin insert q) end insert  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.

begin delete

(q)

end delete

begin insert ( end insert begin insert r) end insert  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 begin delete Section 290 end delete begin insert Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1 end insert 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 begin insert Public end insert Health begin delete Care Services end delete 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.