Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-10, 18VAC105-20-15, 18VAC105-20-20, 18VAC105-20-45, 18VAC105-20-60).

Statutory Authority: §§ 54.1-2400 and 54.1-3223 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 31, 2014.

Effective Date: January 15, 2015.

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 are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Optometry the authority to promulgate regulations to administer the regulatory system. The specific requirement for licensure as an optometrist is found in § 54.1-3204 of the Code of Virginia: "Practicing or offering to practice optometry, or the public representation of being qualified to practice the same by any person not authorized to practice optometry, shall be sufficient evidence of a violation of the law."

Purpose: The purpose of the amended regulation is reduction of or alleviation of barriers to licensure, especially for applicants who have been licensed in other states. A clearer differentiation between licensure by examination and licensure by endorsement will enable applicants to navigate the process more easily. By retaining requirements relating to evidence of competency and ethical practice, the board continues to protect the health, safety, and welfare of the public while making it less burdensome to come to Virginia to establish an optometric practice.

Rationale for Using Fast-Track Process: The amendments proposed will result in a less restrictive regulation or a revision for clarity in requirements for licensure. There should be no controversy with any of the changes, which were approved unanimously by board members.

Substance: The amendments (i) clarify that an applicant who is or was licensed in another state but who does not meet the active practice requirement for endorsement may apply by examination; (ii) allow approval of an applicant whose license has lapsed in another state provided he is eligible for reinstatement and holds at least one current license; (iii) allow an applicant who took the examination more than five years ago to qualify by continuing education rather than retaking the examination; (iv) accept the examination required in another state at the time of initial licensure for an applicant by endorsement rather than requiring a "comparable" examination; and (v) revise renewal language to allow for electronic submissions.

Issues: There are no advantages or disadvantages to the public. Allowing applicants to provide proof of passage of the examination required for initial licensure instead of proof of comparability may benefit a very small number of persons. There are no advantages or disadvantages to the agency or the Commonwealth.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Optometry proposes to: 1) clarify that an applicant who is or was licensed in another state but who does not meet the active practice requirement for endorsement may apply by examination, 2) allow approval of an applicant whose license has lapsed in another state provided he is eligible for reinstatement and has one current license, 3) allow an applicant who took the examination more than five years ago to qualify by continuing education rather than retaking the examination, 4) accept the examination required in another state at the time of initial licensure for an applicant by endorsement rather than requiring a "comparable" examination, and 5) revise renewal language to allow for electronic submissions.

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

Estimated Economic Impact. The proposed amendments reduce barriers to licensure, especially for applicants who have been licensed in other states. A clearer differentiation between licensure by examination and licensure by endorsement will enable applicants to navigate the process more easily. By retaining requirements relating to evidence of competency and ethical practice, the Board continues to protect the public while making it less burdensome to come to Virginia to establish an optometric practice.

Businesses and Entities Affected. The Board estimated that there are 3-4 persons per year who apply for licensure by endorsement who have not taken the national examination. There are currently 1420 licensed optometrists with TPA certification and 151 licensed optometrists without TPA. There are 479 optometry offices in the Commonwealth.

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

Projected Impact on Employment. By reducing barriers to licensure, the proposed amendments may moderately increase the number of practicing optometrists in the Commonwealth.

Effects on the Use and Value of Private Property. By reducing barriers to licensure, the proposed amendments reduce costs for some optometrists.

Small Businesses: Costs and Other Effects. By reducing barriers to licensure, the proposed amendments reduce costs for some optometry practices.

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

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Board of Optometry concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments, which were adopted following a periodic review of the regulation, (i) clarify that an applicant who is or was licensed in another state but who does not meet the active practice requirement for endorsement may apply by examination, (ii) allow approval of an applicant whose license has lapsed in another state provided he is eligible for reinstatement and has one current license, (iii) allow an applicant who took the examination more than five years ago to qualify by continuing education rather than retaking the examination, (iv) accept the examination required in another state at the time of initial licensure for an applicant by endorsement rather than requiring a "comparable" examination, and (v) revise renewal language to allow for electronic submissions.

18VAC105-20-10. Licensure by examination.

A. The applicant, in order to be eligible for licensure by examination to practice optometry in the Commonwealth, shall meet the requirements for TPA certification in 18VAC105-20-16 and shall:

1. Be a graduate of a school of optometry accredited by the Accrediation Council on Optometric Education; have an official transcript verifying graduation sent to the board;

2. Request submission of an official report from the NBEO of a score received on each required part of the NBEO examination or other board-approved examination; and

3. Submit a completed application and the prescribed fee.

B. Applicants who passed the National Board Examination prior to May 1985 shall apply for licensure by endorsement as provided for in 18VAC105-20-15.

C. Required examinations.

1. For the purpose of § 54.1-3211 of the Code of Virginia, the board adopts all parts of the NBEO examination as its written examination for licensure. After July 1, 1997, the board shall require passage as determined by the board of Parts I, II, and III of the NBEO examination.

2. As part of the application for licensure, an applicant must sign a statement attesting that he has read, understands, and will comply with the statutes and regulations governing the practice of optometry in Virginia.

D. If an applicant has been licensed in another jurisdiction, and has not been engaged in active clinical practice for at least 36 out of the last 60 months preceding application, as required for licensure by endorsement, he may apply for licensure by examination, and the following requirements shall also apply:

1. The applicant shall attest that he is not a respondent in a pending or unresolved malpractice claim; and

2. Each jurisdiction in which the applicant is currently or has been licensed shall verify that:

a. The license is full current and unrestricted, or if the license has lapsed, it is eligible for reinstatement;

and all b. All continuing education requirements have been completed, if applicable;

b. c. The applicant is not a respondent in any pending or unresolved board action; and

c. d. The applicant has not committed any act that would constitute a violation of § 54.1-3204 or 54.1-3215 of the Code of Virginia.

E. An applicant who did not complete completed all parts of the board-approved examination within more than five years prior to the date of the board's receipt of their his application for licensure by this board may be required to retake all or any part of the board-approved examination or take up to 32 hours of board-approved continuing education unless they demonstrate that they have maintained clinical, ethical, and legal practice for 36 of the past 60 months immediately prior to submission of an application for licensure.

18VAC105-20-15. Licensure by endorsement.

A. An applicant for licensure by endorsement shall meet the requirements for TPA certification in 18VAC105-20-16, pay the fee as prescribed in 18VAC105-20-20, and file a completed application that certifies the following:

1. The applicant has successfully completed a licensing passed the examination or certification required for licensure in optometry in any jurisdiction of the United States that is approximately comparable to the Virginia examination at the time of initial licensure.

2. The applicant has been engaged in active clinical practice for at least 36 months out of the last 60 months immediately preceding application.

3. The applicant is not a respondent in a pending or unresolved malpractice claim.

4. The applicant is currently licensed in another jurisdiction of the United States.

4. 5. Each jurisdiction in which the applicant is currently or has been licensed has verified shall verify that:

a. The license is full current and unrestricted, or if the license has lapsed, it is eligible for reinstatement;

and all b. All continuing education requirements have been completed, if applicable;

b. c. The applicant is not a respondent in any pending or unresolved board action;

c. d. The applicant has not committed any act that would constitute a violation of § 54.1-3204 or 54.1-3215 of the Code of Virginia; and

d. e. The applicant has graduated from an accredited school or college of optometry.

B. The applicant shall also provide proof of competency in the use of diagnostic pharmaceutical agents (DPAs) which that shall consist of a report from the national board of passing scores on all sections of Parts I and II of the NBEO examination taken in May 1985 or thereafter. If the applicant does not qualify through examination, he shall provide other proof of meeting the requirements for the use of DPA as provided in §§ 54.1-3220 and 54.1-3221 of the Code of Virginia.

C. As part of the application for licensure, an applicant must sign a statement attesting that he has read, understands, and will comply with the statutes and regulations governing the practice of optometry in Virginia.

D. In the case of a federal service optometrist, the commanding officer shall also verify that the applicant is in good standing and provide proof of credentialing and quality assurance review to satisfy compliance with applicable requirements of subsection A of this section.

E. In the event the examinations for initial licensure are determined not comparable, the board may require the applicant to take and pass a regional or national practical examination.

F. An optometrist previously licensed in Virginia is not eligible for licensure by endorsement but may apply for reinstatement of licensure under 18VAC105-20-60.

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
Late renewal without TPA certification	$50
Late renewal with TPA certification	$65
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. Until December 31, 2013, the following fees shall be in effect:

Annual licensure renewal without TPA certification	$100
Annual licensure renewal with TPA certification	$135
Annual professional designation renewal (per location)	$30

18VAC105-20-45. Standards of practice.

A. An optometrist shall legibly document in a patient record the following:

1. During a routine or medical eye examination:

a. An adequate case history, including the patient's chief complaint;

b. The performance of appropriate testing;

c. The establishment of an assessment or diagnosis; and

d. A recommendation for an appropriate treatment or management plan, including any necessary follow up.

2. During an initial contact lens examination:

a. The requirements of a routine or medical eye examination as prescribed in subdivision 1 of this subsection;

b. Assessment of corneal curvature;

c. Evaluation of contact lens fitting;

d. Acuity through the lens; and

e. Directions for the wear, care, and handling of lenses.

3. During a follow-up contact lens examination:

a. Evaluation of contact lens fitting and anterior segment health;

b. Acuity through the lens; and

c. Such further instructions as necessary for the individual patient.

4. In addition, the record of any examination shall include the signature of the attending optometrist and, if indicated, refraction of the patient.

B. The following information shall appear on a prescription for ophthalmic goods:

1. The printed name of the prescribing optometrist;

2. The address and telephone number at which the patient's records are maintained and the optometrist can be reached for consultation;

3. The name of the patient;

4. The signature of the optometrist;

5. The date of the examination and an expiration date, if medically appropriate; and

6. Any special instructions.

C. Contact lens.

1. Sufficient information for complete and accurate filling of an established contact lens prescription shall include but not be limited to (i) the power, (ii) the material or manufacturer or both, (iii) the base curve or appropriate designation, (iv) the diameter when appropriate, and (v) medically appropriate expiration date.

2. An optometrist shall provide a patient with a copy of the patient's contact lens prescription i at the end of the contact lens fitting, even if the patient does not ask for it. An optometrist may first require all fees to be paid, but only if he requires immediate payment from patients whose eye examinations reveal no need for corrective eye products.

3. An optometrist shall provide or verify the prescription to anyone who is designated to act on behalf of the patient, including contact lens sellers.

4. An optometrist shall not require patients to buy contact lens, pay additional fees, or sign a waiver or release in exchange for a copy of the contact lens prescription.

5. An optometrist shall not disclaim liability or responsibility for the accuracy of an eye examination.

D. Spectacle lens.

1. A licensed optometrist shall provide a written prescription for spectacle lenses immediately after the eye examination is completed. He may first require all fees to be paid, but only if he requires immediate payment from patients whose eye examinations reveal no need for corrective eye products.

2. An optometrist shall not require patients to buy ophthalmic goods, pay additional fees, or sign a waiver or release in exchange for a copy of the spectacle prescription.

3. An optometrist shall not disclaim liability or responsibility for the accuracy of an eye examination.

E. Practitioners shall maintain a patient record for a minimum of five years following the last patient encounter with the following exceptions:

1. Records that have previously been transferred to another practitioner or health care provider or provided to the patient or his personal representative; or

2. Records that are required by contractual obligation or federal law to be maintained for a longer period of time.

F. From March 17, 2011, practitioners Practitioners shall post information or in some manner inform all patients concerning the time frame for record retention and destruction. Patient records shall only be destroyed in a manner that protects patient confidentiality.

18VAC105-20-60. Renewal of licensure; reinstatement; renewal fees.

A. Every person authorized by the board to practice optometry shall, on or before December 31 of every year, submit a completed renewal application form and pay the prescribed annual licensure fee.

B. It shall be the duty and responsibility of each licensee to assure that the board has the licensee's current address of record and the public address, if different from the address of record. All changes of address or name shall be furnished to the board within 30 days after the change occurs. All notices required by law or by these rules and regulations are to be deemed to be validly tendered when mailed to the address of record given and shall not relieve the licensee of the obligation to comply.

C. The license of every person who does not return the completed complete the renewal form and submit the renewal fee by December 31 of each year may be renewed for up to one year by paying the prescribed renewal fee and late fee, provided the requirements of 18VAC105-20-70 have been met. After December 31, 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.

D. An optometrist whose license has been lapsed for more than one year and who wishes to resume practice in Virginia shall apply for reinstatement. The executive director may grant reinstatement provided that:

1. The applicant can demonstrate continuing competence;

2. The applicant has satisfied current requirements for continuing education 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.

E. The board may require an applicant who has allowed his license to expire and who cannot demonstrate continuing competency to pass all or parts of the board-approved examinations.