22 TAC §277.6
The Texas Optometry Board adopts amendments to §277.6
without change to the proposed text published in the December 20, 2002, issue
of the
Texas Register
(27 TexReg 11889).
The amendments set maximum administrative penalties for first time violations
of specific sections of the Texas Optometry Act and Rules. The amendments
also correct citations to the Act as codified in the Texas Occupations Code.
The Texas Optometry Board (agency) received comments from the National
Association of Optometrists and Opticians (association). The association commented
that the statutes cited in the rule do not support the amendment of the rule,
and that the Texas Optometry Act prohibits a retailer, wholesaler or manufacturer
of ophthalmic goods from ". . . exercising undue control over an optometrist's
professional judgment or manner of practice." The agency disagrees with this
comment. Section 351.408(a) of the Optometry Act actually reads: "[t]his section
. . . shall be liberally construed to prevent manufacturers, wholesalers,
and retailers of ophthalmic goods from controlling or attempting to control
the professional judgment, manner of practice, or practice of an optometrist
or therapeutic optometrist." The word "undue" is not part of the statute,
and nowhere in the statue is the effect of the statute limited to this restriction
as proposed by the association. Such a proposed limitation would be directly
contradicted by the "liberally construed" pronouncement in subsection (a).
The association also commented that the Optometry Act does not prohibit
opticians from making appointments for optometrists, optometrists from sharing
appointment information with an optical on the availability of appointments,
or opticals from providing "such information" to its customers in response
to inquiries about the practice of an optometrist. The agency disagrees with
this comment. Section 351.408(b) of the Optometry Act states "[i]n this section,
[']control or attempt to control the professional judgment, manner of practice,
or practice of an optometrist or therapeutic optometrist['] includes: . .
. (4) providing, hiring, or sharing employees, business services, or similar
items to or with an optometrist or therapeutic optometrist; . . ." This subsection,
as well as subsection (a) quoted above, prohibit the activities set out in
the proposed language of subsection (d)(2)(A).
The association also commented that the proposed rule would prohibit manufacturers,
wholesalers, and retailers of ophthalmic goods from advertising to optometrists
the availability of space to lease for professional practice. The agency disagrees
with this comment. The proposed amendment is not intended to prohibit such
activity, but instead prohibits manufacturers, wholesalers, and retailers
of ophthalmic goods from providing or sharing business services with an optometrist.
The association also commented that the proposed rule would prohibit manufacturers,
wholesalers, and retailers of ophthalmic goods from advertising to the public
that an " . . . optometric practice [is] located adjacent to or near the optical
premises." The agency disagrees with this comment. The proposed amendment
is not intended to prohibit the use of a phrase in advertising by manufacturers,
wholesalers, and retailers of ophthalmic goods that as a factual matter an
independent optometrist is located next to the optical or at another location
convenient to the premises of the optical.
The association also commented that the Optometry Act does not prohibit
optometrists from voluntarily agreeing to maintain minimum office hours, since
such an agreement is ". . . not indicative of undue control or influence."
The agency disagrees with this comment. Again, neither the word "undue" or
any similar word is contained in §351.408 to limit the scope of the prohibition
on controlling or attempting to control an optometrist's manner of practice
or practice. The proposed rule language of "[d]irecting or allowing optical
employees or owners to set the practice hours . . ." is authorized by the
specific language of §351.408(b): "[i]n this section, [']control or attempt
to control the professional judgment, manner of practice, or practice of an
optometrist or therapeutic optometrist['] includes: (1) setting or attempting
to influence the professional fees or office hours of an optometrist or therapeutic
optometrist . . . ."
No other comments were received regarding the amendments.
The amendments are adopted under the Texas Optometry Act, Texas
Occupations Code, §§351.151, 351.551 and 351.552. 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 §351.551 and §351.552 as authorizing the imposition of
administrative penalties by the Board according to provisions set out in the
Act. The only other sections affected by the amendments are §351.351
(address changes); §351.362 (display of name); §351.203 (public
interest information); §351.155 and §351.403 (advertising restrictions); §351.404
(offering glasses or contacts as a prize); and §§351.408, 351.459,
351.363 and 351.364 (prohibiting control of optometry by manufacturers, wholesalers,
and retailers of ophthalmic goods, and requiring complete separation between
dispensing opticians and optometrists).
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 18, 2003.
TRD-200301798
Chris Kloeris
Executive Director
Texas Optometry Board
Effective date: April 7, 2003
Proposal publication date: December 20, 2002
For further information, please call: (512) 305-8502