Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-20, 18VAC105-20-70; adding 18VAC105-20-61).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Public Hearing Information:

June 28, 2019 - 9:05 a.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 200, Board Room 3, Conference Center, Henrico, VA

Public Comment Deadline: August 23, 2019.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4508, FAX (804) 527-4471, or email leslie.knachel@dhp.virginia.gov.

Basis: Regulations of the Board of Optometry are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the board the authority to promulgate regulations to administer the regulatory system.

Purpose: The purpose is to promulgate regulations for the issuance of inactive licenses for optometrists. The regulations will include a provision that an inactive license does not authorize an optometrist to practice in Virginia and provisions for evidence of continued competency in order to reactivate an inactive license. All provisions are necessary to protect patients receiving optometric services from being seen by doctors who have not maintained continuing education and competency.

Substance: The amendments (i) add fees for inactive licensure to 18VAC105-20-20 in accordance with fee principles for all boards so that a fee for an inactive license is set at half the cost of an active license, the fee for late renewal of an inactive license is set at approximately one third the cost of renewal, and a fee for reactivation to active status is set at the difference between the renewal fee for an active license and the fee for an inactive license; (ii) add 18VAC105-20-61 with the requirements for inactive licensure, including provisions for requesting an inactive license and for reactivation of a license; and (iii) amend 18VAC105-20-70 to clarify that the requirements for continuing education pertain to maintenance of an active license.

Reactivation will require evidence of continuing education for the time of inactivity with a maximum of 40 hours or the equivalent of two years of continuing education. There is also be a provision stating that an inactive license does not authorize the practice of optometry in Virginia

Issues: There are no advantages or disadvantages to the public; the amendments will benefit optometrists who are not actively practicing by allowing them to keep their optometry license at half the cost of an active license. There are no advantages or disadvantages to the agency or the Commonwealth. The loss of revenue can be absorbed in the budget of the Board of Optometry without necessitating any increase in fees.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. In response to a petition for rulemaking,¹ the Board of Optometry (Board) proposes to establish rules for an inactive optometrist licensure.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Inactive licensure is not in the current regulation. In order to maintain licensure to practice optometry, optometrists must fill out and submit a renewal form, pay the annual renewal fee ($200 for license with TPA² certification, $150 for license without TPA certification), and complete 20 hours of continuing education (CE) annually.³ The license of every person who does not complete the renewal form and submit the renewal fee each year may be renewed for up to one year by paying the prescribed renewal fee and late fee ($65 with TPA certification, $50 without TPA certification), provided the CE requirements have been met. After the renewal deadline, a license that has not been renewed is lapsed. Practicing optometry in Virginia with a lapsed license may subject the licensee to disciplinary action and additional fines by the board.

An optometrist whose license has been lapsed for more than one year and who wishes to resume practice in Virginia, must apply for reinstatement. The Department of Health Professions' executive director may grant reinstatement provided that: 1) the applicant can demonstrate continuing competence, 2) the applicant has satisfied current requirements for CE for the period in which the license has been lapsed, not to exceed two years, and 3) the applicant has paid the prescribed reinstatement application fee ($400).

The Board proposes to establish that:

An optometrist who holds a current, unrestricted license in Virginia may, upon a request on the renewal application and submission of the required fee [$100], be issued an inactive license. The holder of an inactive license shall not be required to maintain continuing education requirements and shall not perform any act requiring a license to practice optometry in Virginia.

A licensee whose license has been inactive and who requests reactivation of an active license shall file an application, pay the difference between the inactive and active renewal fees for the current year, and provide documentation of having completed continuing education hours equal to the requirement for the number of years in which the license has been inactive, not to exceed 40 contact hours.

The inactive license would be beneficial for optometrists licensed with TPA certification who plan not to practice for less than three years, but not three or more years.

	Inactive License	Reinstatement
Cost while not practicing	$100 annually	$0
Required CE to resume active practice	20 hours for one year; 40 hours for two or more years	20 hours for one year; 40 hours for two or more years
Required fee payment to resume active practice	$100 for license with TPA certification; $50 for license without TPA certification	$400

The total cost of having an inactive license for three years, and then applying to reactivate the license with TPA certification would be $400⁴ plus the time, fees and travel costs associated with obtaining 40 hours of CE. The total cost to just not renew the regular license, and then apply for reinstatement after three years would be $400 plus the time, fees, and travel costs associated with obtaining 40 hours of CE as well. Since $100 annual installments would have to be made with the inactive license, while no payments would be made until the end of the three years with the reinstatement route, the reinstatement route would likely be preferable. Since the cost for the reinstatement route would remain $400 plus the 40 hours of CE for all years not practicing greater than three, while the inactive license route cost would increase by $100 per additional year, the reinstatement route would also be preferable for those optometrists who plan not to practice for more than three years.

For optometrists licensed without TPA certification, the inactive license may be preferable for those who plan not to practice for three years. Since the fee to reactivate this license is only $50, the total cost of having an inactive license for three years would only be $350, versus the $400 for the reinstatement route. On the other hand, the inactive route would have installment payments, while the reinstatement route does not.

The proposed inactive license would be beneficial for those optometrists who plan not to practice for less than three years, since the total cost would be less than under the reinstatement route. For example, the total cost of having an inactive license with TPA certification for two years, and then applying to reactivate the license would be $300 plus the time, fees and travel costs associated with obtaining 40 hours of CE. The total cost to just not renew the regular license, and then apply for reinstatement after two years would be $400 plus the time, fees and travel costs associated with obtaining 40 hours of CE.

Businesses and Entities Affected. The proposed amendments potentially affect the 1,656 persons who hold a Virginia optometrist license.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments would not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Costs would be moderately reduced for small optometry practices that pay for their optometrists licensing fees.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

______________________________

¹See http://townhall.virginia.gov/l/viewpetition.cfm?petitionid=264

²TPA is therapeutic pharmaceutical agents. TPA certification is authorization by the Board for an optometrist to treat diseases and abnormal conditions of the human eye and its adnexa and to prescribe and administer certain therapeutic pharmaceutical agents.

³A licensee who completes more than 20 hours of continuing education in a year is allowed to carry forward up to 10 hours of continuing education for the next annual renewal cycle.

⁴$100 fee for each of the three years that the license is inactive, plus $100 fee to reactivate the license. This calculation does not take account of the time value of money over the three years.

Agency's Response to Economic Impact Analysis: The Board of Optometry concurs with the analysis of the Department of Planning and Budget, relating to an inactive license. However, an inactive license is most often chosen by a person who does not intend to resume active practice but wants to retain the professional license he has always held. For those persons, allowing an active license to lapse is not an acceptable option; taking inactive status is preferable. Therefore, the cost comparison of inactive licensure versus reinstatement of a lapsed license is not relevant for the majority of licensees.

Summary:

The amendments enable the board to issue inactive licenses.

18VAC105-20-20. Fees.

A. Required fees.

Initial application and licensure (including TPA certification)	$250
Application for TPA certification	$200
Annual licensure renewal without TPA certification	$150
Annual licensure renewal with TPA certification	$200
Annual renewal of inactive license	$100
Late renewal without TPA certification	$50
Late renewal with TPA certification	$65
Late renewal of inactive license	$35
Returned check	$35
Professional designation application	$100
Annual professional designation renewal (per location)	$50
Late renewal of professional designation	$20
Reinstatement application fee (including renewal and late fees)	$400
Reinstatement application after disciplinary action	$500
Duplicate wall certificate	$25
Duplicate license	$10
Licensure verification	$10

B. Unless otherwise specified, all fees are nonrefundable.

C. From October 31, 2018, to December 31, 2018, the following fees shall be in effect:

Annual licensure renewal without TPA certification	$75
Annual licensure renewal with TPA certification	$100
Annual professional designation renewal (per location)	$25

18VAC105-20-61. Inactive licensure; reactivation.

A. An optometrist who holds a current, unrestricted license in Virginia may, upon a request on the renewal application and submission of the required fee, be issued an inactive license. The holder of an inactive license shall not be required to maintain continuing education requirements and shall not perform any act requiring a license to practice optometry in Virginia.

B. A licensee whose license has been inactive and who requests reactivation of an active license shall file an application, pay the difference between the inactive and active renewal fees for the current year, and provide documentation of having completed continuing education hours equal to the requirement for the number of years in which the license has been inactive, not to exceed 40 contact hours.

18VAC105-20-70. Requirements for continuing education.

A. Each license renewal of an active license shall be conditioned upon submission of evidence to the board of 20 hours of continuing education taken by the applicant during the previous license period. A licensee who completes more than 20 hours of continuing education in a year shall be allowed to carry forward up to 10 hours of continuing education for the next annual renewal cycle.

1. The 20 hours may include up to two hours of recordkeeping for patient care, including coding for diagnostic and treatment devices and procedures or the management of an optometry practice, provided that such courses are not primarily for the purpose of augmenting the licensee's income or promoting the sale of specific instruments or products.

2. For optometrists who are certified in the use of therapeutic pharmaceutical agents, at least 10 of the required continuing education hours shall be in the areas of ocular and general pharmacology, diagnosis and treatment of the human eye and its adnexa, including treatment with new pharmaceutical agents, or new or advanced clinical devices, techniques, modalities, or procedures.

3. At least 10 hours shall be obtained through real-time, interactive activities, including in-person or electronic presentations, provided that during the course of the presentation, the licensee and the lecturer may communicate with one another.

4. A licensee may also include up to two hours of training in cardiopulmonary resuscitation (CPR).

5. Two hours of the 20 hours required for annual renewal may be satisfied through delivery of professional services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for three hours of providing such volunteer services, as documented by the health department or free clinic.

B. Each licensee shall attest to fulfillment of continuing education hours on the required annual renewal form. All continuing education shall be completed prior to the renewal deadline unless an extension or waiver has been granted by the Continuing Education Committee. A request for an extension or waiver shall be received prior to the renewal deadline each year.

C. All continuing education courses shall be offered by an approved sponsor or accrediting body listed in subsection G of this section. Courses that are not approved by a board-recognized sponsor in advance shall not be accepted for continuing education credit. For those courses that have a post-test requirement, credit will only be given if the optometrist receives a passing grade as indicated on the certificate.

D. Licensees shall maintain continuing education documentation for a period of not less than three years. A random audit of licensees may be conducted by the board, which will require that the licensee provide evidence substantiating participation in required continuing education courses within 14 days of the renewal date.

E. Documentation of hours shall clearly indicate the name of the continuing education provider and its affiliation with an approved sponsor or accrediting body as listed in subsection G of this section. Documents that do not have the required information shall not be accepted by the board for determining compliance. Correspondence courses shall be credited according to the date on which the post-test was graded as indicated on the continuing education certificate.

F. A licensee shall be exempt from the continuing competency requirements for the first renewal following the date of initial licensure by examination in Virginia.

G. An approved continuing education course or program, whether offered by correspondence, electronically or in person, shall be sponsored, accredited, or approved by one of the following:

1. The American Optometric Association and its constituent organizations.

2. Regional optometric organizations.

3. State optometric associations and their affiliate local societies.

4. Accredited colleges and universities providing optometric or medical courses.

5. The American Academy of Optometry and its affiliate organizations.

6. The American Academy of Ophthalmology and its affiliate organizations.

7. The Virginia Academy of Optometry.

8. Council on Optometric Practitioner Education (COPE).

9. State or federal governmental agencies.

10. College of Optometrists in Vision Development.

11. The Accreditation Council for Continuing Medical Education of the American Medical Association for Category 1 credit.

12. Providers of training in cardiopulmonary resuscitation (CPR).

13. Optometric Extension Program.

H. In order to maintain approval for continuing education courses, providers or sponsors shall:

1. Provide a certificate of attendance that shows the date, location, presenter or lecturer, content hours of the course and contact information of the provider or sponsor for verification. The certificate of attendance shall be based on verification by the sponsor of the attendee's presence throughout the course, either provided by a post-test or by a designated monitor.

2. Maintain documentation about the course and attendance for at least three years following its completion.

I. Falsifying the attestation of compliance with continuing education on a renewal form or failure to comply with continuing education requirements may subject a licensee to disciplinary action by the board, consistent with § 54.1-3215 of the Code of Virginia.