Part 14. TEXAS OPTOMETRY BOARD

Chapter 279. INTERPRETATIONS

22 TAC §279.1

The Texas Optometry Board adopts amendments to §279.1 with the following change to the proposed text published in the December 22, 2000, issue of the Texas Register (25 TexReg 12589): Section "351.359" is added to the list of authority in subsection (a).

The amendments update the items a contact lens prescription must contain, including the deletion of some items no longer necessary to write a complete prescription, the addition of restrictions contained in the Contact Lens Prescription Act regarding length of prescription, and the addition of explanatory language concerning substitution of brand names for private labels versus prescribing of proprietary lenses.

The Board (agency) received comments from the Texas Department of Health, Contact Lens Dispensing Permit Program (the Department). The Department commented that it is against adoption of the amendments. No other comments on the rule were received.

The Department commented that language should be added to subsection (b)(3) directing the doctor to verbally explain to the patient and document in the patient's record the reasons that the prescription was for a period of less than one year. The Agency disagrees with the commentor that this statement is appropriate in a rule that defines the contents of a prescription and not the legal requirements for providing a prescription.

The Department commented that §279.12 had been in effect for several years and that the Agency was changing the rule, and in its comments posed several questions regarding when a proprietary lens was medically indicated. The Agency disagrees with these comments. Section 351.359 of the Texas Optometry Act prohibits a prescription from containing a restriction that limits the parameters to a private label not available to the industry as a whole. The amended language of the rule, as did the original rule language of §279.12 concerning private labels, similarly prohibits such a restriction in a prescription by requiring the inclusion of substitution language. A proprietary lens, which unlike a private label lens is not intended to be an exclusive lens solely because of a brand name, may be medically indicated, for example, in the advanced geometric designs for treating keratoconus or corneal anomalies. Section 351.359 does not prohibit the prescribing of a proprietary lens when medically indicated.

The Department commented that a certain type of lens was a proprietary lens and since it was not available to the public as a whole, could not be prescribed by an optometrist. The Agency disagrees with this comment. The lens referred to by the Department, if not available to the industry as a whole, would properly be classified as a private label and not a proprietary lens. However, the referenced lens is available to the optical industry as a whole. If the lens were a private label, the rule would require substitution language in the prescription.

The Department commented that the Contact Lens Prescription Act prohibits conditioning the issuance of a prescription on the condition that contact lenses be purchased from the prescribing doctor. The commentor stated that the amendments to the rule regarding proprietary lenses would permit the doctor to restrict the prescription to a proprietary lens that is interchangeable with a non-proprietary lens without a benefit to the ocular health of the patient. The Agency disagrees with these comments. The rule amendments are made pursuant to §351.359 of the Optometry Act. A proprietary lens is not a private label lens but a lens that offers clinical superiority for specific medical conditions, and may only be prescribed when medically indicated. Although a proprietary lens may not be offered by every contact lens dispenser, the lenses are commonly available to a large segment of dispensers and not restricted by brand name to one doctor or practice. Therefore the prescribing of such a lens will not require the patient to obtain the lenses from the prescribing doctor.

The Department commented that if a proprietary lens were prescribed, the rule should require that the prescribing doctor verbally inform the patient and document in the record the reasons for prescribing the proprietary lens. The Agency disagrees that there is any legal authority or requirement for such a provision.

The amended rule is adopted under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.356, 351.357, 351.359, and 351.607, and Contact Lens Prescription Act, §§353.152, 353.153, and 353.158. The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The Board interprets §§351.151, 351.356, 351.357, 351.359, 351.607, 353.152, 353.153, and 353.158, as defining the requirements for a contact lens prescription.

§279.1.Board Interpretation Number One

(a)

A contact lens prescription must comply with the requirements of the Texas Optometry Act, §§351.005, 351.356, 351.357, 351.359 and 351.607, and the Contact Lens Prescription Act, §§353.152, 353.153 and 353.158.

(b)

A fully written contact lens prescription must contain all information required to accurately dispense the contact lens, including:

(1)

patient's name;

(2)

date the prescription is issued;

(3)

expiration date of the prescription, which shall be one year or more unless a shorter period is medically indicated;

(4)

examining optometrist's signature or authorized signature in compliance with Rule §279.14(b);

(5)

name of the lens manufacturer, if required to accurately dispense the lens;

(6)

lens brand name, including:

(A)

a statement that brand substitution is permitted if the optometrist intends to authorize a contact lens dispenser to substitute the brand name, and

(B)

a statement specifying a substitute brand name when the prescribed brand name is not available to the optical industry as a whole, unless the prescribing of a proprietary lens brand is medically indicated;

(7)

lens power;

(8)

lens diameter, unless set by the manufacturer;

(9)

base curve, unless set by the manufacturer; and

(10)

number of lenses and recommended replacement interval.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 15, 2001.

TRD-200101538

Lois Ewald

Executive Director

Texas Optometry Board

Effective date: April 4, 2001

Proposal publication date: December 22, 2000

For further information, please call: (512) 305-8500

22 TAC §279.12

The Texas Optometry Board adopts amendments to §279.12 without changes to the proposed text published in the December 22, 2000, issue of the Texas Register (25 TexReg 12590).

The amendments clarify the limited situations in which a proprietary lens may be prescribed.

The Board (agency) received comments from the Texas Department of Health, Contact Lens Dispensing Permit Program (the Department). The Department commented that it is against adoption of the amendments. No other comments on the rule were received.

The Department commented that §279.12 had been in effect for several years and that the Agency was changing the rule, and in its comments posed several questions regarding when a proprietary lens was medically indicated. The Agency disagrees with these comments. Section 351.359 of the Texas Optometry Act prohibits a prescription from containing a restriction that limits the parameters to a private label not available to the industry as a whole. The amended language of the rule, as did the original rule language of §279.12 concerning private labels, similarly prohibits such a restriction in a prescription by requiring the inclusion of substitution language. A proprietary lens, which unlike a private label lens is not intended to be an exclusive lens solely because of a brand name, may be medically indicated, for example, in the advanced geometric designs for treating keratoconus or corneal anomalies. Section 351.359 does not prohibit the prescribing of a proprietary lens when medically indicated.

The Department commented that a certain type of lens was a proprietary lens and since it was not available to the public as a whole, could not be prescribed by an optometrist. The Agency disagrees with this comment. The lens referred to by the Department, if not available to the industry as a whole, would properly be classified as a private label and not a proprietary lens. However, this lens is available to the optical industry as a whole. If the lens were a private label, the rule would require substitution language in the prescription.

The Department commented that the Contact Lens Prescription Act prohibits conditioning the issuance of a prescription on the condition that contact lenses be purchased from the prescribing doctor. The commentor stated that the amendments to the rule regarding proprietary lenses would permit the doctor to restrict the prescription to a proprietary lens that is interchangeable with a non-proprietary lens without a benefit to the ocular health of the patient. The Agency disagrees with these comments. The rule amendments are made pursuant to Section 351.359 of the Optometry Act. A proprietary lens is not a private label lens but a lens that offers clinical superiority for specific medical conditions, and may only be prescribed when medically indicated. Although a proprietary lens may not be offered by every contact lens dispenser, the lenses are commonly available to a large segment of dispensers and not restricted by brand name to one doctor or practice. Therefore the prescribing of such a lens will not require the patient to obtain the lenses from the prescribing doctor.

The Department commented that if a proprietary lens were prescribed, the rule should require that the prescribing doctor verbally inform the patient and document in the record the reasons for prescribing the proprietary lens. The Agency disagrees that there is any legal authority or requirement for such a provision.

The amended rule is adopted under the Texas Optometry Act, Texas Occupations Code, §§351.151 and 351.359. The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The Board interprets §351.359 as defining the requirements for a contact lens prescription.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 15, 2001.

TRD-200101539

Lois Ewald

Executive Director

Teas Optometry Board

Effective date: April 4, 2001

Proposal publication date: December 22, 2000

For further information, please call: (512) 305-8500

Chapter 597. UNLAWFUL ACTS AND GROUNDS FOR REVOCATION

22 TAC §597.2

The Structural Pest Control Board adopts amendments of 22 TAC 597.2 without changes to the proposed text published in the January 5, 2001 issue of the Texas Register (26 TexReg 57).

The justification for the rule will allow expedited review by suspension or revocation of licenses the Board has determined no longer able to obey the Board's laws and regulations.

The rule will function in that the licensee must request a hearing within 20 days of the date of the letter setting out legal basis and supporting facts challenging Board decision and relief sought by petitioner.

There were no comments received.

There were no groups or associations making comments for or against the rule.

The amendment is adopted under Tex.Rev.Civ.Stat.Ann., Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 16, 2001.

TRD-200101554

Benny M. Mathis, Jr.

Executive Director

Structural Pest Control Board

Effective date: April 5, 2001

Proposal publication date: January 5, 2001

For further information, please call: (512) 451-7200

22 TAC §599.11

The Structural Pest Control Board adopts amendments of 22 TAC 599.11 with changes to the proposed text published in the January 5, 2001 issue of the Texas Register (26 TexReg 58).

Justification for the rule clarifies the certified applicator as the responsible person for the entire fumigation process, posting, securing the structure, and that the aeration procedures are followed to assure safe re-entry. The regulation also updates language to make it consistent with label requirements approved by the U.S. Environmental Protection Agency (EPA).

The rule will function in that it clearly requires the certified applicator to oversee the entire fumigation process and requires that the clearance devices that ensure safe re-entry are calibrated annually in accordance with manufacturer's requirements.

Summary of comments are as follows. One commentator noted that the requirement to have a clearance device calibrated by an outside entity is not necessary. Companies could train their people to perform the calibration of the device. Companies that sell fumigants also have expressed an interest in having a party besides the user verify the working order of the clearance. One commentator mentioned that the rule should not be adopted until the U.S. Environmental Protection Agency resolved differences on the Vikane fumigant label with Dow Agrosciences. One commentator proposed the wording "monitoring" device be changed to "clearance device". The commentator also suggested that "ventilated" be changed to "aerated". One commentator noted that the revised Rule §599.11(a) no longer requires the certified applicator to be present when aeration of the structure commences. One commentator expressed the concern about the revised Rule §599.11(j) about the requirement on having a security guard perform the inspections.

Names of groups and associations making comments for and against the rule were Southwestern Pest Services Company, Orkin Pest Control, Dow Agrosciences and Elite Exterminating.

Reasons why the agency agrees or disagrees with the comments. The Board disagrees with the commenter in that label requirements may require outside fumigation. Companies that sell calibration devices utilize proprietary information with those clearance devices and have elected not to train individuals outside their companies in the maintenance of those devices. The Board disagrees with the commenter. The resolution of the label issue between the U.S. Environmental Protection Agency and Dow Agrosciences could take a long time to resolve. The Board needs to take action now to keep the regulation current. Further, the label of any fumigant will still be the controlling factor as to application of the fumigant after the differences are resolved between EPA and Dow Agrosciences. The Board agrees with the commenter on the change of "monitoring" to "clearance" device and is changing the words to reflect that throughout the rule. The Board disagrees with the commenter on the need for the presence of the certified applicator when aeration commences. The label requirements of fumigants are the controlling factor, and the label requirements specify that the certified applicator be present when aeration is commenced. The Board disagrees with the commentator on the requirement of having a security guard perform inspections. The revised rule does not require a security guard to perform inspections on an hourly basis. It is the responsibility of the person posted at the location to deter entry into the structure by routinely inspecting the structure at least once each hour.

The amendment is adopted under Tex.Rev.Civ.Stat.Ann., Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

§599.11.Structural Fumigation Requirements.

(a)

Fumigation of structures to control wood destroying organisms shall be performed only under the direct on-site supervision of a certified applicator licensed by the Board in the category of fumigation. Direct on-site supervision shall mean that the certified applicator exercising such supervision shall be present at the site of the fumigation during the entire time the fumigants are being released and at the time property is released for occupancy.

(b)

Fumigation shall be performed in compliance with all label requirements applicable to state, county, and city laws and ordinances and all applicable laws and regulations of the United States.

(c)

Prior to the commencement of fumigation, warning signs shall be posted in plainly visible locations on or in the immediate vicinity of all entrances to the space under fumigation and shall not be moved until fumigation and ventilation have been completed, and the premises determined safe for reocccupancy. Ventilation shall be conducted with due regard for the public safety.

(d)

Local fire authorities or, when not available, local police authorities, shall be notified prior to introduction of the fumigant and at the time the structure is released for occupancy.

(e)

The space to be fumigated shall be vacated by all occupants prior to the commencement of fumigation. The space to be fumigated shall be sealed in such manner to assure concentration of the fumigant released has been retained in compliance with the manufacturer's recommendations.

(f)

Warning signs shall be printed in red on white backgrounds and shall contain the following statement in letters not less than two inches in height; "Danger-Fumigation." They shall also depict a skull and crossbones, not less than one inch in height, the name of the fumigant, the date and time fumigant was introduced, and the name, address, and telephone number where the certified applicator performing the fumigation may be reached twenty four (24) hours a day.

(g)

On any structure that has been fumigated, the certified applicator who performed the fumigation shall, immediately upon completion, post a durable sign on the wall adjacent to the electric breaker box, water heater, beneath the kitchen sink or in the interior bath trap access. This shall be a durable sign not less than one inch by two inches in size. It shall have the name of the certified applicator, date of fumigation, fumigant used, and the purpose for which it was fumigated (target pest).

(h)

A certified applicator performing fumigation shall use adequate warning agents with all fumigants which lack such properties. When conditions involving abnormal hazards exist, the person exercising direct on-site supervision shall take such safety precautions in addition to those prescribed to protect the public health and safety. The certified applicator shall visibly inspect the structures to assure vacancy prior to introduction of fumigant.

(i)

The certified applicator shall also post a person or persons at the location from the time the fumigant is introduced until all tarpaulins and seals are removed and the label concentration for aeration is reached. The certified applicator shall then secure all entrances to the structure in such a manner as to prevent entry by anyone other than the certified applicator or an agent of the certified applicator. The structure shall remain secured until the concentration indicated by the fumigant label for release for occupancy is reached.

(j)

For the purpose of maintaining proper safety and establishing responsibility in handling the fumigants, the business license holder shall compile and retain for a period of at least two (2) years a report for each fumigation job and/or treatment. The person posted at the location shall deter entry into the structure by routinely inspecting the structure under fumigation at least once each hour. The person posted at the location shall be alert and on duty to prevent entry into the structure while the structure while the fumigant is present. The report for each fumigation job or treatment shall contain the following information:

(1)

name and address of pest control company;

(2)

name and address of property and owner;

(3)

type of roof;

(4)

cubic feet fumigated;

(5)

target pest or pest controlled;

(6)

fumigant or fumigants used and amount;

(7)

name of warning agent and amount used;

(8)

type of sealing method;

(9)

temperature and wind conditions;

(10)

time gas introduced and aerated (date and hour);

(11)

name of licensee (certified applicator);

(12)

list of any extraordinary safety precautions taken;

(13)

time released for occupancy (signed by certified applicator;

(14)

the date and hour fire or police authorities were notified; and

(15)

verification of clearing procedures and identification of devices used.

(k)

Fumigations for the purpose of controlling wood destroying insects are subject to the provisions of 599.4 of this title (relating to Disclosure).

(l)

Every business license holder engaged in application of a fumigant is required to use an approved clearance device as prescribed on the fumigant label.

(1)

This approved calibrated clearance device must be used as required by the label. As appropriate, this device must be calibrated in accordance with manufacturer's recommendations.

(2)

An independent facility or person must perform calibration of the clearance device annually. Calibration shall be in compliance with the manufacturer's requirements.

(3)

Proof of calibration must be kept on file for a period of two (2) years and available for review by Board personnel and by placing a yearly validation on the clearance device.

(m)

The certified applicator responsible for the fumigation site shall be responsible for following all the label prescribed procedures for aeration and clearing the structure that is being fumigated.

(n)

The word "trained" is defined as a person having the same qualifications as an apprentice unless the label states more stringent requirements in the application of the fumigant.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 16, 2001.

TRD-200101553

Benny M. Mathis, Jr.

Executive Director

Structural Pest Control Board

Effective date: April 5, 2001

Proposal publication date: January 5, 2001

For further information, please call: (512) 451-7200