Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-20, 18VAC105-20-40; repealing 18VAC105-20-50).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 14, 2020.

Effective Date: October 29, 2020.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 597-4130, 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.

Purpose: The purpose of the regulatory change is to eliminate requirements and fees that are not necessary for public protection. The board found that current law and regulations protect consumer interest and protect the health, safety, and welfare of the public.

Rationale for Using Fast-Track Rulemaking Process: The impetus for this regulatory action is the recommendation of a subcommittee appointed by the board to study the use of professional designations. In its review of law and regulation, the subcommittee found no statutory requirement for registration of such designations and no necessity in terms of consumer protection for such registration. Since the amendments will eliminate a restriction and regulatory burden on optometrists, it is not expected to be controversial.

Substance: The amendments repeal 18VAC105-20-50, which establishes the requirements for issuance and usage of a professional designation and change 18VAC105-20-20, relating to professional designations, and 18VAC105-20-40, relating to unprofessional conduct for practicing in a location with an unregistered professional designation, for consistency with the repealed section.

Issues: There are no primary advantages or disadvantages to the public. The public is adequately protected by current laws and regulations for disclosures, posting, and recordkeeping without registration of professional designations.

There are no advantages or disadvantages to the agency or the Commonwealth. Eliminating an administrative function of registering professional designations is advantageous, but it is a very small component of the board's work.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Optometry (Board) proposes to amend 18VAC105-20 Regulations of the Virginia Board of Optometry in order to repeal the requirement to register a professional designation and remove the associated registration fees and penalties for failing to meet that requirement.

Background. Under the Board's current regulation, all licensed optometrists who practice at an office under a professional designation, as opposed to practicing under the legal name of the optometrist, are required to register the professional designation with the Board and pay fees to maintain the registration. For example, if an optometrist named John Smith practiced under the professional designation of "Eye Care Optometry," as opposed to practicing as "John Smith, Doctor of Optometry," then he would have to register "Eye Care Optometry" with the Board as a professional designation and renew the registration every year.¹ The proposed amendment would remove all of the Board's requirements associated with professional designation.

The professional designation requirements currently in place were promulgated as a precaution against false advertising. Section 54.1-3204 of the Code of Virginia deems it illegal for anyone to "publish or cause to be published in any manner an advertisement that is false, deceptive or misleading, contains a claim of professional superiority or violates regulations of the Board governing advertising by optometrists."² Section 54.1-3215 of the Code authorizes the Board to revoke or suspend a license or reprimand the licensee for "advertising which directly or indirectly deceives, misleads or defrauds the public, claims professional superiority, or offers free optometrical services or examinations."³ However, the Code does not define or make any mention of professional designations.

The Department of Health Professions (DHP) reported that these requirements were adopted so that licensees would not operate under a name that could be construed by the public as belonging to a medical facility. Based on a review of the Code and other regulations conducted by a committee appointed by the Board, they now seek to repeal this requirement. Specifically, the committee found that the regulations were unnecessary and that similar Boards, such as Dentistry, did not require the same of their licensees.⁴

Estimated Benefits and Costs. The proposed amendments would eliminate the professional amendment application fee, which is currently $100. The annual professional designation renewal fee ($50) and the corresponding late renewal fee ($20) would also be eliminated. Further the Board proposes to remove "practicing with an expired or unregistered professional designation" from the list of violations for which license-holders could be penalized. Thus, the proposed amendments would benefit optometrists operating under a professional designation. Removal of these requirements does not appear to introduce risk to the public or other costs. Optometrists could still use a professional designation, but such use would now be optional and no registration or fees would be required. Although the Board would lose about $14,050 in annual revenue, the Board is projected to conclude this biennium with a surplus of $269,361 and reports it is thus able to absorb this loss.

Businesses and Other Entities Affected. The Board directly regulates optometrists, but not the businesses or other entities where they work. The proposed amendments affect at least the 263 optometrists with professional designations currently registered with the Board. No costs are introduced.

Small Businesses⁵ Affected. As stated, the Board directly regulates optometrists, but not the businesses or other entities where they work. Virginia Employment Commission data indicates that all 490 offices of optometrists in the Commonwealth qualify as small businesses. Hence, most or all of the affected 263 optometrists with professional designations likely work at small businesses. DHP does not have any information indicating which optometrists work at a small business.

Localities⁶ Affected.⁷ The proposed amendments do not introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use or value of private property. Real estate development costs are unlikely to be affected.

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¹The regulation also requires that the names of all optometrists providing practicing at that location be displayed.

²https://law.lis.virginia.gov/vacode/title54.1/chapter32/section54.1-3204/; see point 6.

³https://law.lis.virginia.gov/vacode/title54.1/chapter32/section54.1-3215/; see point 9.

⁴Explanation provided by DHP; see also https://townhall.virginia.gov/L/GetFile.cfm?File=Meeting\29\29698\Minutes_DHP_29698_v2.pdf

⁵Pursuant 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."

⁶"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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 repeal the requirement to register a professional designation and remove the associated registration fees and penalties for failing to meet that requirement.

18VAC105-20-20. Fees.

A. Required fees.

Initial application and licensure (including TPA certification)	$250
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
Handling fee for returned check or dishonored credit card or debit card	$50
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

18VAC105-20-40. Standards of conduct.

The board has the authority to refuse to issue or renew a license, suspend, revoke, or otherwise discipline a licensee for a violation of the following standards of conduct. A licensed optometrist shall:

1. Use in connection with the optometrist's name wherever it appears relating to the practice of optometry one of the following: the word "optometrist," the abbreviation "O.D.," or the words "doctor of optometry."

2. Notify the board of any disciplinary action taken by a regulatory body in another jurisdiction.

3. Post in an area of the optometric office that is conspicuous to the public, a chart or directory listing the names of all optometrists practicing at that particular location.

4. Maintain patient records, perform procedures or make recommendations during any eye examination, contact lens examination, or treatment as necessary to protect the health and welfare of the patient and consistent with requirements of 18VAC105-20-45.

5. Notify patients in the event the practice is to be terminated or relocated, giving a reasonable time period within which the patient or an authorized representative can request in writing that the records or copies be sent to any other like-regulated provider of the patient's choice or destroyed in compliance with requirements of § 54.1-2405 of the Code of Virginia on the transfer of patient records in conjunction with closure, sale, or relocation of practice.

6. Ensure his access to the practice location during hours in which the practice is closed in order to be able to properly evaluate and treat a patient in an emergency.

7. Provide for continuity of care in the event of an absence from the practice or, in the event the optometrist chooses to terminate the practitioner-patient relationship or make his services unavailable, document notice to the patient that allows for a reasonable time to obtain the services of another practitioner.

8. Comply with the provisions of § 32.1-127.1:03 of the Code of Virginia related to the confidentiality and disclosure of patient records and related to the provision of patient records to another practitioner or to the patient or his personal representative.

9. Treat or prescribe based on a bona fide practitioner-patient relationship consistent with criteria set forth in § 54.1-3303 of the Code of Virginia. A licensee shall not prescribe a controlled substance to himself or a family member other than Schedule VI as defined in § 54.1-3455 of the Code of Virginia. When treating or prescribing for self or family, the practitioner shall maintain a patient record documenting compliance with statutory criteria for a bona fide practitioner-patient relationship.

10. Comply with provisions of statute or regulation, state or federal, relating to the diversion, distribution, dispensing, prescribing, or administration of controlled substances as defined in § 54.1-3401 of the Code of Virginia.

11. Not enter into a relationship with a patient that constitutes a professional boundary violation in which the practitioner uses his professional position to take advantage of the vulnerability of a patient or his family to include actions that result in personal gain at the expense of the patient, a nontherapeutic personal involvement, or sexual conduct with a patient. The determination of when a person is a patient is made on a case-by-case basis with consideration given to the nature, extent, and context of the professional relationship between the practitioner and the person. The fact that a person is not actively receiving treatment or professional services from a practitioner is not determinative of this issue. The consent to, initiation of, or participation in sexual behavior or involvement with a practitioner by a patient does not change the nature of the conduct nor negate the prohibition.

12. Cooperate with the board or its representatives in providing information or records as requested or required pursuant to an investigation or the enforcement of a statute or regulation.

13. Not practice with an expired or unregistered professional designation.

14. Not violate or cooperate with others in violating any of the provisions of Chapters 1 (§ 54.1-100 et seq.), 24 (§ 54.1-2400 et seq.) or 32 (§ 54.1-3200 et seq.) of Title 54.1 of the Code of Virginia or regulations of the board.

18VAC105-20-50. Professional designations. (Repealed.)

A. In addition to the name of the optometrist as it appears on the license, an optometrist may practice in an office that uses only one of the following:

1. The name of an optometrist who employs him and practices in the same office;

2. A partnership name composed of some or all names of optometrists practicing in the same office; or

3. A professional designation, if the conditions set forth in subsection B of this section are fulfilled.

B. Optometrists licensed in this Commonwealth who practice as individuals, partnerships, associations, or other group practices may use a professional designation for the optometric office in which they conduct their practices provided the following conditions are met:

1. A professional designation shall be registered with the board by a licensed optometrist who has an ownership or equity interest in the optometric practice and who must practice in any location with that registered designation and who shall assume responsibility for compliance with this section and with the statutes and regulations governing the practice of optometry.

2. A professional designation shall be approved by the board and a fee shall be paid as prescribed by board regulations prior to use of the name. Names which, in the judgment of the board, are false, misleading, or deceptive will be prohibited.

3. No licensed optometrist may, at any time, register to practice optometry under more than one professional designation.

4. All advertisements, including but not limited to signs, printed advertisements, and letterheads, shall contain the word "optometry" or reasonably recognizable derivatives thereof unless the name of the optometrist is used with the professional designation with the O.D. designation, Doctor of Optometry or optometrist.

5. In the entrance or reception area of the optometric office, a chart or directory listing the names of all optometrists practicing at that particular location shall be kept at all times prominently and conspicuously displayed.

6. The names of all optometrists who practice under the professional designation shall be maintained in the records of the optometric office for five years following their departure from the practice.

7. The name of the licensed optometrist providing care shall appear on all statements of charges and receipts given to patients.

8. An optometrist may use a professional designation which contains the name of an inactive, retired, removed, or deceased optometrist for a period of no more than one year from the date of succession to a practice and so long as he does so in conjunction with his own name, together with the words, "succeeded by," "succeeding," or "successor to."