Current StatusView additional legislative information at the LPITS web site.Bill Number: 893 Ratification Number: 484 Act Number 395 Introducing Body: Senate Subject: Relating to opticians and optometrists
(A395, R484, S893)
AN ACT TO AMEND CHAPTER 37 OF TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OPTICIANS AND OPTOMETRISTS, SO AS TO DELETE PROVISIONS RELATING TO OPTICIANS; TO REGULATE OPTOMETRISTS; TO PROVIDE PENALTIES; AND TO REAUTHORIZE THE EXISTENCE OF THE SOUTH CAROLINA BOARD OF EXAMINERS IN OPTOMETRY FOR SIX YEARS IN ACCORDANCE WITH THE PROVISIONS OF ACT 608 OF 1978.
Be it enacted by the General Assembly of the State of South Carolina:
Opticians and optometrists
Section 1. Chapter 37 of Title 40 of the 1976 Code is amended to read:
"Chapter 37
Optometrists
Section 40-37-10. Any person shall be deemed to be practicing optometry within the meaning of this chapter who shall:
(1) Display a sign or in any way advertise as an optometrist;
(2) Employ any means, other than the use of drugs, for the measurement of the powers of vision or the adaptation of lenses for the aid thereof;
(3) In the sale of spectacles, eyeglasses, or lenses, use lenses in the testing of the eye therefor other than lenses actually sold;
(4) Examine the human eye by the employment of any subjective or objective physical means, without the use of drugs, to ascertain the presence of defects or abnormal conditions for the purpose of relieving them by the use of lenses, prisms or other physical or mechanical means; or
(5) Practice orthoptics or prescribe or fit contact lenses.
Section 40-37-20. There is hereby created the South Carolina Board of Examiners in Optometry which shall consist of seven members. Five members shall be licensed optometrists appointed by the Governor upon nomination by all licensed optometrists in this State through an election conducted by the board. The Governor may reject any or all of those nominated upon satisfactory showing as to the unfitness of those rejected. If the Governor declines to appoint any of such nominees so submitted, additional nominees shall be submitted in the same manner. Vacancies shall be filled in like manner by appointment by the Governor for the unexpired portion of the term. Two members of the board shall be members of the general public who do not derive their income or support from any optical or related business or who are not related to any members of these professions. These public members shall be nominated by any individual, group, or association, and appointed by the Governor.
The board shall be responsible for examining applicants for optometric licenses, for investigating complaints, and for investigating and prosecuting violations of this chapter.
The members of the board shall be appointed for terms of four years and until their successors are appointed and qualify. No person may serve more than two consecutive four-year terms on the board, except that if any person is appointed to fill an unexpired term on the board, he may be reappointed for two additional four-year terms. The Governor may remove any member of the board who has been guilty of continued neglect of his duties or who is found to be incompetent, or for just cause. No member shall be removed without first giving him an opportunity to refute the charges filed against him. He shall be given a copy of the charges at the time they are filed.
Section 40-37-30. The members of the board shall qualify by taking the oath of office before a notary public or other officer empowered to administer oaths in the county in which each one, respectively, resides. At the first meeting of the board, after each annual appointment, the board shall elect a president, vice-president and secretary-treasurer. A majority of members of the board shall constitute a quorum. Regular meetings shall be held at least once a year, at such time and place as shall be deemed most convenient. Special meetings may be held upon the call of the president.
If a board member is disqualified and his absence results in the lack of a quorum or an adequate number of board members to perform official functions, then the Governor is authorized to deputize an individual to replace the disqualified board member during the period of disqualification. The individual deputized must take the same oath as required of other members of the board.
Section 40-37-40. Each member may receive for his services and expenses such per diem and mileage as is provided by law for members of state boards, commissions and committees for each day actually engaged in the duties of his office, including a reasonable number of days for the preparation and reviewing of examinations, in addition to such time actually spent in conducting examinations.
Section 40-37-50. The South Carolina Board of Examiners in Optometry may adopt an official seal, prescribe regulations and bylaws for its proceedings and government and for the practice of optometry and for the examination of applicants for the practice of optometry.
The board or any member thereof may administer oaths for all purposes requiring the discharge of its duties. For the purpose of any investigation ar proceeding under the provisions of this chapter, the board or any person designated by it may subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, a court of common pleas upon application of the board may issue an order requiring the person to appear before the board, or a person designated by it, and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Section 40-37-60. All revenues and income from licenses, examination fees, other fees, sale of commodities and services, and income derived from any other board source or activity shall be remitted to the State Treasurer as collected, when practicable, but at least once each week, and shall be credited to the general fund of the State. All assessments, fees, or licenses shall be levied pursuant to the Administrative Procedures Act in an amount sufficient to at least equal the amount appropriated in the annual general appropriations act for the board, plus any additional funds allocated by the Budget and Control Board for implementation of the state's personnel compensation plan.
Section 40-37-70. The board shall make an annual report in accordance with the provisions of Act 165 of 1979.
Section 40-37-80. Any person desiring to be examined by the board must make application to the board, in a manner prescribed by the board, at least thirty days prior to the holding of the examination. Each applicant on making application shall pay to the board a fee as determined by regulation of the board.
Section 40-37-90. A person is qualified to receive a certificate of registration as a registered optometrist who:
(1) Has a minimum of two academic years at an accredited college or university;
(2) Was graduated from an accredited school or college of optometry which required four years' attendance and which grants the degree of doctor of optometry (O.D.), provided all schools and courses are approved by the board;
(3) Has passed a satisfactory examination recognized by the board; or
(4) Has passed the National Board of Optometry Examination or an equivalent examination and has practiced for five years in another state or states and is in good standing in the state in which he was last actively engaged in the practice of optometry;
(5) Has not been convicted of a felony or misdemeanor involving moral turpitude, in which case the record of conviction or a certified copy thereof certified by the clerk of the court in which the conviction occurred shall be conclusive evidence thereof.
Section 40-37-100. Every applicant to practice optometry in this State shall pass the examination of the National Board of Optometry, or if such is not available, an equivalent examination prepared or selected by the board. The board may also require a relevant practical or oral examination which shall not be substantially duplicative of the National Board examination.
Section 40-37-110. All persons successfully meeting the requirements of licensure shall be numbered and registered in the board's register, which shall be kept by the secretary of the board upon payment to the secretary of the board of a fee established by regulation sufficient to cover the costs of printing, publication, and processing of the certificate.
Section 40-37-120. Every person to whom a certificate of registration is granted under this chapter shall display it in a conspicuous place in his principal place of practice. A duplicate, certified by the secretary of the board, shall be displayed in any secondary place of practice.
Section 40-37-130. Any failure, neglect, or refusal on the part of any person holding such a certificate of registration to display it as herein provided, for three months after the issuance of such certificate, shall ipso facto work the forfeiture of such certificate of registration and it shall not be restored except upon the payment of twenty-five dollars to the board.
Section 40-37-140. Every optometrist practicing in this State who desires to continue to be licensed shall annually, on or before the first day of October of each year, pay a renewal fee, to be fixed by regulation. In case of default in making such payment by any person, his license shall be automatically terminated provided the board gives the licensee thirty days' notice in writing prior to the imposition of the mandatory termination. The deposit of such notice in the United States Post Office addressed to the licensee at his last current address as registered with the board, with postage prepaid, shall be due and legal service of such notice. If within the thirty-day period the person so notified shall pay such penalty as the board may impose, not to exceed fifty dollars, as well as his renewal fee, his license shall be renewed. Any person whose license is terminated because of a failure to pay a renewal fee may apply to have it regranted upon payment to the board of all renewal fees that should have been paid had the license remained active, together with a penalty of one hundred dollars. If the license has lapsed for a period greater than two years, the licensee shall appear before the board who shall then determine whether or upon what conditions the license should be reinstated. Each active South Carolina optometrist shall annually attend a minimum of twelve hours of continuing educational courses or meetings. The instruction shall be on subjects relative to optometry, exclusive of office management or administration, at board approved and recognized educational seminars and courses or accredited institutions of learning. Satisfactory proof of compliance with this requirement is a prerequisite for annual renewal.
Section 40-37-150. Any person licensed to practice the profession of optometry in this State who is serving in the armed forces of the United States in time of war or preparation for war during any national emergency shall not thereby forfeit his current license or registration. Any such person who has paid an annual renewal registration fee shall be refunded that portion of such annual renewal fee for the time that he has served in the armed forces of the nation. Any such person, upon presentation of his discharge from such service within one year from the date thereof and upon payment of the fee prescribed by law for the portion of the current renewal period only, shall be entitled to a renewal of his license or registration as though such renewal had been made prior to the expiration of his last preceding renewal and as though all intermediate renewal fees had been paid.
Section 40-37-160. Whenever it is required by law that a visual test of the eye be made or optometric care of the eye be required of any person by any school or college, state or county board or other agency of the government, such test or care may be made or had by an optometrist duly licensed in this State. When any person is required to furnish evidence of visual efficiency a report of any such optometrist shall be a compliance with the law requiring such certificate or report.
All agencies of the State and its subdivisions, and all commissions, clinics, and boards administering relief, public assistance, public welfare assistance, social security or health services under the laws of this State, shall accept the services of licensed optometrists for all services that they are licensed to perform relating to any person receiving benefits from such agencies or subdivisions. All of the governmental agencies or agents, officials or employees thereof, including the public schools, may counsel with and advise the persons needing eye care as to the type of service needed and as to those qualified to render such service, but no attempt shall be made to steer an individual seeking vision care to either an optometrist or a physician. The patient shall be given free choice in his selection of a specialist to serve his vision-care needs, in examinations, vision screening, or other vision services. Provided, that an exception shall be made in emergency cases of obvious eye injury or disease where delay in obtaining the services of a physician might endanger the patient's visual health. Provided, further, that in recognized instances of disease or anomalies disclosed in the original physical evaluation by the state agency, such cases may be referred directly to specialists, ophthalmologists or optometrists as deemed appropriate by the evaluating agency.
There shall be no differential in the fee schedule for vision-care services, whether performed by an optometrist or a physician, that is, for like services common to both professions.
No funds appropriated for vision care shall be used by any agency that practices discrimination between a licensed optometrist or a licensed physician.
Nothing in this section shall prevent a nurse, school teacher, or welfare worker, employed in public service, from ascertaining the probable need of visual services, provided such person does not attempt to diagnose or prescribe or to recommend any particular practitioner or system of practice.
Section 40-37-170. Any person practicing optometry shall be prohibited from using the prefix 'Doctor' to his name, unless he has received a degree from a duly accredited college, authorized to grant the title.
Section 40-37-180. It shall be unlawful for any person to disseminate by any means whatsoever, directly or indirectly, or cause to be disseminated, any untruthful, impossible, improbable, misleading, or deceptive advertisement or representation concerning eye examinations, ophthalmic goods, ophthalmic services, or the practice of optometry. In addition, it shall be unlawful for any person, partnership, or corporation to disseminate by any means whatsoever, directly or indirectly, or cause to be disseminated any untruthful, impossible, improbable, misleading, or deceptive advertisement or representation concerning the terms, guarantee, or warranty which relates in any manner to the procurement of ophthalmic goods or services.
It shall be unlawful for any person to offer or give eyeglasses, spectacles, lenses, or any part used in connection therewith, as a premium or bonus with merchandise or in any other manner to induce trade or to give or offer to give any thing of value to any other person, the object of which is to induce the examination of the eye or the sale of spectacles, eyeglasses, lenses, or any part used in connection therewith. Provided, that the provisions of this section shall not prohibit giving ophthalmic products incidental to the use of the product being offered nor the offering of a reduced price, sale, or discount on purchases if the following disclosures are made with the offer:
(a) If the offered price is represented as being a reduced price, sale price, or discounted price, the offer shall disclose whether the reduced price, sale price, or discounted price is from the offeror's regular selling price, or shall disclose any other price and its source which serves as the standard from which the offeror represents the offered price as being a reduced price, sale price, or discounted price.
(b) The date the offer terminates.
It shall be unlawful for any person to disseminate price information concerning ophthalmic goods and services without including therein:
(a) Whether an advertised price for eyeglasses includes single vision or multi-focal lenses;
(b) Whether an advertised price for contact lenses refers to hard or soft contact lenses;
(c) Whether an advertised price for ophthalmic materials includes all dispensing fees;
(d) Whether an advertised price for ophthalmic materials includes an eye examination;
(e) Whether an advertised price for eyeglasses includes both frame and lenses.
Section 40-37-190. It shall be unlawful for any person to offer eye examinations at a discount price or as a premium, the object of which is to induce the sale of ophthalmic services or materials.
Section 40-37-200. It shall be unlawful for any such licensee to permit his license to be used by any unlicensed person and shall be a violation of the terms hereof for any unlicensed person to practice or attempt to practice or conduct his business under the rights and privileges conferred upon some other person duly licensed. Notwithstanding any other provision of law, an optometrist may delegate tasks to his assistants working under his direct supervision. As used herein, 'direct supervision' means that a licensed optometrist shall be on the premises at all times. Nothing herein shall preclude such optometrist from being absent from the practice for reasonable periods during the working day, such as lunch or other customary, practice related absences. No contact lenses shall be dispensed during his absence. Provided, however, that under no circumstances will these assistants be allowed to make a refraction for eyeglasses or give a contact lens fitting. Provided, however, nothing herein shall be construed to interfere with the operation of offices in accordance with Section 40-37-290.
Section 40-37-210. The board shall receive complaints by any person against a licensed optometrist and shall require the complaints to be submitted in written form. Upon receipt of the complaint, the secretary or such other person as the president may designate shall investigate the allegations in the complaint, and make a report to the board concerning his investigation. If the board shall then desire to proceed further, it may, in its discretion, file a formal accusation charging the optometrist with a violation of a provision of this chapter. The accusation shall be signed by the president or the vice-president on behalf of the board. When the accusation is filed and the board shall set a date for hearing thereon, the secretary of the board shall notify the accused in writing not less than thirty days prior to the hearing and a copy of the accusation shall be attached to the notice. The accused may appear and show cause why his license should not be suspended or revoked. The accused shall have the right to be confronted with and to cross-examine the witnesses against him and he shall have the right to counsel. For the purposes of such hearings, the board is empowered to require ,by subpoena the attendance of witnesses, the production of documents, and to administer oaths and hear testimony, either oral or documentary, for and against the accused. In instances where a board member has made the initial investigation or complaint, he shall not sit with the board at the hearing of such complaint.
Such notice may be sent to the accused by registered mail, return receipt requested, directed to his last mailing address furnished to the board. The post office registration receipt signed by the accused, his agent, or a responsible member of his household, or office staff, or, if not accepted by the person to whom addressed, the postal authority stamped thereon showing the notice 'refused' shall be prima facie evidence of service of such notice.
All investigations and proceedings undertaken under the provisions of this chapter shall be confidential.
Every communication, whether oral or written, made by or on behalf of any complainant to the board or its agents or any hearing panel or member thereof, pursuant to this act whether by way of complaint or testimony, shall be privileged; and no action or proceeding, civil or criminal, shall lie against any such person, by whom or on o whose behalf such communication shall have been made, by reason thereof.
Section 40-37-220. The board may revoke, suspend, reprimand, or otherwise restrict the license of any optometrist when it is established that the license holder is guilty of misconduct as defined herein.
Misconduct which constitutes grounds for a revocation, suspension, reprimand, or other restriction of a license or a limitation on or other discipline of an optometrist shall be a satisfactory showing in to the board of any of the following:
(1) That any false, fraudulent, or forged statement or document has been used, and any fraudulent, deceitful, or dishonest act has been practiced by the holder of a license or certificate in connection with any of the license requirements.
(2) That the holder of a license has been convicted of a felony or any other crime involving moral turpitude. Forfeiture of a bond or a plea of nolo contendere shall be considered as the equivalent of a conviction.
(3) That the holder of a license practiced optometry while under either the influence of alcohol or drugs to such a degree as to adversely affect his ability to practice optometry.
(4) That the holder of a license uses alcohol or drugs to such a degree as to adversely affect his ability to practice optometry.
(5) That the holder of a license has knowingly performed any act which in any way assists a person to practice optometry illegally.
(6) That the holder of a license has caused to be published or circulated directly or indirectly any fraudulent, false, or misleading statements as to the skill or methods of practice of any optometrist.
(7) That the holder of a license has failed to provide and maintain reasonable sanitary facilities.
(8) That the holder of a license has sustained any physical or mental impairment or disability which renders further practice by him dangerous to the public.
(9) That the holder of a license has violated the principles of ethics as adopted by the board and published in its rules and regulations.
(10) That the holder of a license has engaged in conduct that is deceptive, fraudulent, or harmful to the public.
(11) That the holder of a license is guilty of obtaining fees or assisting in obtaining such fees under deceptive, false, or fraudulent circumstances.
(12) That the holder of a license is guilty of the use of any intentionally false or fraudulent statement in any document connected with the practice of optometry.
(13) That the holder of a license has been found by the board to lack the professional competence to practice optometry.
(14) That the holder of a license has violated any provision of this chapter regulating the practice of optometry.
(15) That the holder of a license has been guilty of using a solicitor, peddlers, cappers or steerers to obtain patronage.
In addition to all other remedies and actions incorporated in this chapter, the license of an optometrist adjudged mentally incompetent by any court of competent jurisdiction shall be automatically suspended by the board until he is adjudged by a court of competent jurisdiction or in any other manner provided by law as being restored to mental competency.
Section 40-37-230. If the board shall be satisfied that the optometrist is guilty of any offense charged in the formal accusation provided for in this chapter, it shall thereupon revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board.
Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote of the entire board qualified and serving at the time and shall be subject to review by the circuit court upon petition filed by the licensee with the court and a copy thereof served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. Such review shall be limited to the record established by the board's hearing.
Section 40-37-240. It shall be unlawful for any person to practice optometry within the meaning of this chapter in violation of the provisions hereof and any person committing such a violation shall, upon conviction, be fined not more than one thousand dollars or imprisoned not more than two years, or both, in the discretion of the court. Each violation shall constitute a separate offense. The penalties provided in this section shall apply to any corporation, association or person aiding and abetting in a violation.
Any person violating any other of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction in a court of competent jurisdiction, be punished ,by a fine of not less than twenty-five dollars and not exceeding one hundred dollars or by imprisonment for not less than twenty days and not exceeding thirty days.
Section 40-37-250. The possession of optical supplies or instruments, equipment or appliances for the examination of the eye shall be prima facie evidence of working as an optometrist for conviction under the provisions of this chapter.
Section 40-37-260. It shall be unlawful for any person to engage in the practice of optometry in this State unless such person shall be licensed by the South Carolina Board of Examiners in Optometry.
This act shall not apply to:
(1) Any bona fide student of optometry, medicine, or osteopathy in the clinic rooms or an approved program of an accredited school of optometry, medicine or osteopathy;
(2) Any commissioned officer in the Armed Services who is engaged in the practice of optometry in the State of South Carolina insofar as such practice is in the performance of his military duties;
(3) An individual licensed in another jurisdiction who is in the State of South Carolina to make a clinical demonstration before a professional society, convention, professional association, school or college, or agency of the government.
Nothing in this chapter shall be construed to apply to (a) physicians authorized to practice under the laws of this State, in the due course of their professional practice, except that they shall be subject to the provisions of Sections 40-37-180, 40-37-190, and the first sentence of 40-37-200 and the penalties for violation thereof; (b) persons who sell as merchandise from a regular established place of business ready-made eyeglasses or spectacles if such person shall not aid the purchaser in the fitting thereof.
'Physician', as used in this section, shall be construed to mean any person licensed to practice medicine under the provisions of Chapter 47 of this title.
Nothing in this chapter shall preclude a licensed optician from practicing opticianry as defined by the laws of this State.
Section 40-37-270. Nothing contained in this chapter or any other provision of law shall be construed as restricting or setting the price that may be charged for eyeglasses.
Section 40-37-280. Nothing in this chapter or any other provision of law shall be construed to prevent an optometrist licensed under this chapter from maintaining and operating a laboratory required for his private professional practice.
Section 40-37-290. Nothing in this chapter shall be construed to limit the number of offices each individual optometrist or group of optometrists may operate. Every optometrist must display a separate registration certified by the board in each location in which he practices. Duplicate registrations may be obtained from the board by filing an application on a form prescribed by the board and paying the prescribed fees.
Each office shall post in a conspicuous place the office hours that will be maintained. Office hours shall be determined as those hours in which a licensed optometrist is actually present on the premises. This section shall not prevent the office from being open for the purpose of accepting appointments or payments or performing other duties that by law do not require the presence of a licensed optometrist. Advertisements or any other public announcement of office hours must specify those hours in which a licensed optometrist is present on the premises.
Mobile units may be used. However, any optometrist practicing in a mobile unit shall obtain a registration for such by the board. Such unit shall be limited to visiting and providing services to licensed health care facilities within the State.
Section 40-37-300. No member of the board, or its secretary, its committees, special examiners, agents, and employees shall be held liable for acts performed in the course of official duties except where actual malice is shown."
Board may continue to examine applicants for licensure
Section 2. Until July 1, 1984, the South Carolina Board of Examiners in Optometry may continue to examine applicants for licensure as optometrists under the provisions of Section 40-37-130 of the 1976 Code as such section was constituted prior to the effective date of this act.
Present members of board shall continue to serve
Section 3. Present members of the Board of Examiners in Optometry shall continue to serve until expiration of their current terms and until their successors are appointed and qualify. Present board members shall be eligible for reappointment if they have not served more than two consecutive complete terms.
Board reauthorized
Section 4. In accordance with the provisions of Section 7 of Act 608 of 1978, the existence of the South Carolina Board of examiners in Optometry is reauthorized for six years.
Time effective
Section 5. This act shall take effect upon the approval by the Governor.