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NEW JERSEY REGISTER
VOLUME 37, NUMBER 7
MONDAY, APRIL 4, 2005
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY BOARD OF EXAMINERS OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS
RULES OF THE STATE BOARD OF EXAMINERS OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS

Proposed Readoption with Recodifications and Amendments: N.J.A.C. 13:33

Proposed Repeals: N.J.A.C. 13:33-1.19 and 1.35

Authorized By: New Jersey Board of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians, Dorcas O'Neal, Executive Director.

Authority: N.J.S.A. 52:17B-41.13 and 45:1-15.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2005-118.

Submit written comments by June 3, 2005 to:

Dorcas O'Neal, Executive Director

State Board of Examiners of Ophthalmic Dispenser and Ophthalmic Technicians

PO Box 45031

Newark, NJ 07101

The agency proposal follows:

Summary

The State Board of Examiners of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians (the Board) proposes to readopt N.J.A.C. 13:33 with amendments. These rules are scheduled to expire on September 6, 2005 pursuant to N.J.S.A. 52:14B-5.1c.

In compliance with N.J.S.A. 52:14B-5.1, the Board undertook a thorough review of the existing provisions of N.J.A.C. 13:33 in order to delete unnecessary or unreasonable rules and to propose new rules that the Board believes are needed to clarify and assist the practice of ophthalmic dispensers and ophthalmic technicians. The Board believes that the rules proposed for readoption, as amended, are necessary, reasonable, understandable and responsive to the purposes for which they were originally promulgated. These rules have had a beneficial impact on the regulation and conduct of the professions of ophthalmic dispensing and ophthalmic technicianry by enabling the Board to have in place procedures which serve and protect the public's best interests. The following summarizes each subchapter in N.J.A.C. 13:33 and any amendments proposed to the existing rules.

During its review, the Board determined that all of the rules should be recodified. The following is a list of the existing rules and the proposed new codifications (either direct recodifications or new rules on some subject):

N.J.A.C. 13:33-1.1 as 13:33-1.3

N.J.A.C. 13:33-1.2 as 13:33-1.4

N.J.A.C. 13:33-1.3 as 13:33-1.5

N.J.A.C. 13:33-1.7 as 13:33-3.3

N.J.A.C. 13:33-1.8 as 13:33-8.3

N.J.A.C. 13:33-1.11 as 13:33-2.2

N.J.A.C. 13:33-1.12 as 13:33-2.3

N.J.A.C. 13:33-1.13 as 13:33-1.8

N.J.A.C. 13:33-1.14 as 13:33-1.9

N.J.A.C. 13:33-1.15 as 13:33-2.4

N.J.A.C. 13:33-1.16 as 13:33-8.2

N.J.A.C. 13:33-1.17 as 13:33-5.5

N.J.A.C. 13:33-1.18 as 13:33-5.6

N.J.A.C. 13:33-1.19 as 13:33-8.1

N.J.A.C. 13:33-1.20 as 13:33-8.5

N.J.A.C. 13:33-1.22 as 13:33-2.5

N.J.A.C. 13:33-1.23 as 13:33-8.4

N.J.A.C. 13:33-1.24 as 13:33-2.1

N.J.A.C. 13:33-1.26 as 13:33-1.1

N.J.A.C. 13:33-1.27 as 13:33-1.2

N.J.A.C. 13:33-1.28 as 13:33-5.7

N.J.A.C. 13:33-1.29 as 13:33-5.1

N.J.A.C. 13:33-1.30 as 13:33-5.4

N.J.A.C. 13:33-1.31 as 13:33-1.7

N.J.A.C. 13:33-1.32 as 13:33-1.6

N.J.A.C. 13:33-1.33 as 13:33-3.2

N.J.A.C. 13:33-1.35(a), (b), (c), (d), (e), (l) and (m) as 13:33-7.1(a), (b), (c), (d), (e), (f) and (g)

N.J.A.C. 13:33-1.35(f), (j) and (k) as 13:33-7.2(a), (b) and (c)

N.J.A.C. 13:33-1.35(g), (h) and (i) as 13:33-7.3(a), (b) and (c)

N.J.A.C. 13:33-1.36 as 13:33-3.1

N.J.A.C. 13:33-1.37 as 13:33-5.8

N.J.A.C. 13:33-1.38 as 13:33-5.2

N.J.A.C. 13:33-1.39 as 13:33-3.4

N.J.A.C. 13:33-1.40 as 13:33-8.6

N.J.A.C. 13:33-1.41 as 13:33-8.8

N.J.A.C. 13:33-1.42 as 13:33-5.3

N.J.A.C. 13:33-1.43 as 13:33-6.1

N.J.A.C. 13:33-1.44 as 13:33-8.7

N.J.A.C. 13:33-2.1 as 13:33-3.5

N.J.A.C. 13:33-2.2 as 13:33-3.6

N.J.A.C. 13:33-3.1 as 13:33-4.1

N.J.A.C. 13:33-3.2 as 13:33-6.2

Subchapter 1 deals with general rules and regulations. The Board proposed to amend this subchapter so that it deals with apprenticeships. N.J.A.C. 13:33- 1.26, proposed for recodification as N.J.A.C. 13:33-1.1, requires that applicants for an ophthalmic dispenser's apprentice certificate be at least 17 years old. N.J.A.C. 13:33-1.27, proposed for recodification as N.J.A.C. 13:33-1.2, requires that applicants for an ophthalmic technician's apprentice certificate be at least 16 years old. N.J.A.C. 13:33-1.1, proposed for recodification as N.J.A.C. 13:33-1.3, states that an ophthalmic dispenser apprentice certificate is only valid for three years. N.J.A.C. 13:33-1.4 is a reserved section without any text. The Board proposes to delete this section. N.J.A.C. 13:33-1.2, proposed for recodification as N.J.A.C. 13:33-1.4, states that an ophthalmic technician apprentice certificate is only valid for one year. N.J.A.C. 13:33-1.5 is a reserved section without any text. The Board proposes to delete this section. N.J.A.C. 13:33-1.3, proposed for recodification as N.J.A.C. 13:33-1.5, requires that any work done by apprentice ophthalmic dispensers and apprentice ophthalmic technicians be supervised by a licensee. The rule also sets forth the qualifications for supervising preceptors who train apprentices. The Board proposes to amend this rule to reflect the chapter section recodifications.

N.J.A.C. 13:33-1.6 is a reserved section without any text. The Board proposes to delete this section. N.J.A.C. 13:33-1.32, proposed for recodification as N.J.A.C. 13:33-1.6, outlines the requirements for preparing an ophthalmic dispenser for the licensing examination. Preceptors for apprentice dispensers are required to provide instruction in: reading and transposing of prescriptions; fabrication of lenses; types of lenses; frames and mountings; measurements; use of a vertometer, lensometer or similar instrument; neutralization and identification of lenses; bench work and edge grinding; and fitting a pair of eyeglasses. A preceptor must also teach an ophthalmic dispenser apprentice to mark up and surface a pair of lenses or to make a complete pair of eyeglasses. N.J.A.C. 13:33-1.31, proposed for recodification as N.J.A.C. 13:33-1.7, outlines how an apprentice ophthalmic technician prepares for the licensing examination. The preceptor of an apprentice ophthalmic technician is required to provide instruction in: reading and transposing of a prescription; fabrication of lenses; frames and mountings; use of a vertometer, lensometer or similar instruments; neutralizing and identifying a series of single vision and multifocal lenses; and marking up and surfacing a pair of lenses or making a complete pair of eyeglasses.

N.J.A.C. 13:33-1.13 is proposed for recodification as N.J.A.C. 13:33- 1.8. This rule deals with the ophthalmic dispensing licensing examination. The rule requires that an ophthalmic dispenser apprentice complete at least 12 credit hours in optical courses. These credits must be completed within the first year of the apprenticeship. Upon completion of the first year of the apprenticeship, an ophthalmic dispenser apprentice must apply for the first available qualifying technical examination. The qualifying technical examination consists of a written test and practical tests in neutralization and fabrication. An apprentice dispenser who has failed the qualifying technical examination is prohibited from serving the public and will not accumulate time towards the three-year apprenticeship requirement, but is allowed to continue to act as an apprentice in all other tasks. The rule allows an apprentice dispenser to take the qualifying technical examination three times; if the apprentice fails the examination a third time, he or she must surrender the apprentice dispenser permit. An apprentice dispenser who has failed the qualifying technical examination three times may take the ophthalmic technician licensing examination. If the apprentice passes the ophthalmic technician licensing examination he or she shall be reinstated in the ophthalmic dispenser apprenticeship. In addition to the 12 credits taken during the first year of the apprenticeship, an apprentice is required to take 18 hours of course work during the 36-month long apprenticeship. An apprentice is required to apply for the first scheduled ophthalmic dispenser examination after completing the 36-month apprenticeship. If an apprentice fails three ophthalmic dispenser licensing examinations, he or she must return his or her dispenser permit; such an apprentice may continue to take the licensing examination provided that the last year of the apprenticeship was completed no more than two years ago.

N.J.A.C. 13:33-1.9 is a reserved section without any text. The Board proposes to delete this section. N.J.A.C. 13:33-1.14 is proposed for recodification as N.J.A.C. 13:33-1.9. This rule requires an ophthalmic technician apprentice to take the licensing examination after finishing one year of employment. An apprentice who fails the licensing examination three times is required to surrender his or her permit to the Board. An apprentice who has surrendered the technician permit may retake the licensing examination as long as the last year as an apprentice was concluded not more then two years ago. N.J.A.C. 13:33-1.10 is a reserved section without any text. The Board proposes to delete this section.

N.J.A.C. 13:33-1.19 deals with renewal of registration certificates. The Board proposes to delete this rule as it is proposing new requirements for renewal of registration certificates at N.J.A.C. 13:33-8.1. N.J.A.C. 13:33-1.21, 1.25 and 1.34 are reserved sections without any text. The Board proposes to delete these sections. N.J.A.C. 13:33-1.35 sets forth the requirements licensees must follow when they advertise. The Board proposes to repeal this rule and recodify its provisions in new rules N.J.A.C. 13:33- 7.1, 7.2 and 7.3.

Subchapter 2 deals with equipment. The Board proposes to amend this subchapter to deal with licensure. N.J.A.C. 13:33-1.24 is proposed for recodification as N.J.A.C. 13:33-2.1. This rule sets forth standards regarding applications for examinations. An application must be filed with the Board no later than 30 days prior to the day the examination is to be given. Applications must include a certification from the applicant's preceptor which states that the applicant has completed an apprenticeship. N.J.A.C. 13:33-1.11 is proposed for recodification as N.J.A.C. 13:33-2.2. This rule addresses out-of-State ophthalmic dispensers applying for licensure in New Jersey. An ophthalmic dispenser licensed in another state may receive a temporary ophthalmic dispenser permit if he or she has worked as an ophthalmic dispenser for three years and has either an associate degree in ophthalmic science or has completed 30 credits of course work in ophthalmic science. The holder of a temporary ophthalmic dispenser permit may dispense eyeglasses and contact lenses but may not supervise apprentices. If the holder of the temporary ophthalmic dispenser permit fails the first licensing examination, he or she may renew the permit. If the applicant fails the examination a second time, he or she must surrender the temporary permit to the Board. A person who has surrendered the temporary permit may work in an ophthalmic dispensing establishment if he or she is supervised. The applicant may continue to take the licensing examination provided that the last year of work as an ophthalmic dispenser in the other state was less than five years from the date of the examination. The rule allows an individual who has worked as an ophthalmic dispenser in a state that does not license ophthalmic dispensers to take the licensing examination. Such an individual must hold an associate degree in ophthalmic science, and have worked as an apprentice ophthalmic dispenser for at least four months before getting that degree, or have completed 30 credits in ophthalmic science and have worked as a dispenser of eyewear for three years. The Board proposes to amend this rule to reflect the chapter section recodifications.

N.J.A.C. 13:33-1.12 is proposed for recodification as N.J.A.C. 13:33- 2.3. This rule deals with individuals licensed as ophthalmic technicians in another state. An individual may receive a temporary ophthalmic technician permit in this State if he or she has completed an ophthalmic technician course and one year of experience in an optical laboratory. The holder of a temporary ophthalmic technician permit is allowed to work as an ophthalmic technician in this State without the supervision of a licensee. A temporary ophthalmic technician permit may be renewed if the applicant fails the first examination. If the applicant fails the second examination, he or she must surrender the permit and no longer work as an ophthalmic technician. Such an applicant may continue to take the licensing examination and work in an ophthalmic establishment provided he or she is supervised. An applicant whose last year of practice as an ophthalmic technician was more than five years ago may not take the licensing examination but may enter an apprenticeship program for licensure. An applicant who has fabricated eyewear for one year in another state or has attended an ophthalmic technician course is allowed to take the licensing examination provided the last year of experience was acquired within the last five years. The Board proposes to amend this rule to reflect the chapter section recodifications.

N.J.A.C. 13:33-1.15 is proposed for recodification as N.J.A.C. 13:33- 2.4. The rule deals with the review of examinations. An applicant who has failed the qualifying technical examination, the ophthalmic dispenser licensing examination or the ophthalmic technician licensing examination may apply to the Board for a review of the examination. A request for review must be submitted to the Board within one month of the notification of examination results. The Executive Director of the Board will arrange for a review of the Board generated portions of the examination and for the testing service to provide the applicant with a review of the written portion of the examination. An apprentice who fails the licensing examination twice is required to receive written approval of his or her preceptor from the Board to continue his or her apprenticeship. N.J.A.C. 13:33-1.22 is proposed for recodification as N.J.A.C. 13:33-2.5. The rule requires an applicant who has passed the licensing examination to apply for licensure within two years of passing the examination. If an applicant fails to apply for licensure within that period, he or she must retake the licensing examination.

Subchapter 3 deals with dispensing of contact lenses. The Board proposes to amend this subchapter to deal with professional practice. N.J.A.C. 13:33- 1.36, proposed for recodification as N.J.A.C. 13:33-3.1, regulates rental agreements between licensees and other health care practitioners. A licensee is permitted to rent space to a person, or the immediate family of a person, who is authorized to prescribe corrective eyewear provided that there is a written agreement that sets forth a fixed dollar amount for the rent for a stated period of time. The rule states that rent may not be determined by the number of referrals or by volume of sales. N.J.A.C. 13:33-1.33 is proposed for recodification as N.J.A.C. 13:33-3.2. This rule requires that certificates of registration, renewal certificates and validating certificates be displayed to the public. N.J.A.C. 13:33-1.7 is proposed for recodification as N.J.A.C. 13:33-3.3. The rule requires licensees who work in locations other than that registered with the Board to register those locations with the Board by obtaining a branch office certificate for each such location. A branch office certificate is valid for two years. Licensees may work for up to 12 days in locations that are not registered with the Board as long as they notify the Board where they will be working. The Board proposes to amend this rule to reflect the chapter section recodifications.

N.J.A.C. 13:33-1.39 is proposed for recodification as N.J.A.C. 13:33- 3.4. This rule requires employers to ensure that employees are registered with the Board. An employer is also required to post a sign in the optical establishment which states that he or she is responsible for the registration of employees. N.J.A.C. 13:33-2.1 is proposed for recodification as N.J.A.C. 13:33-3.5. This rule sets forth required equipment for optical establishments that have apprentices or which fabricate lenses. Such establishments must have: a set of hand tools; one automatic lens analyzer; a hand or automatic protractor for marking up lenses; one colmascope; one frame heater; one automatic edger and hand finishing stone; at least 250 frames and mountings; and, if the establishment fabricates glass lenses, lens hardening equipment and a drop ball tester. N.J.A.C. 13:33-2.2, proposed for recodification as N.J.A.C. 13:33-3.6, sets forth equipment requirements for establishments that do not have apprentices and do not fabricate lenses. Such an establishment is required to have: a set of hand tools; an automatic lens analyzer and lens clock; one colmascope; one frame heater; one hand finishing stone and at least 250 assorted frames and mountings. Any optical establishment that does not have a laboratory is required to display a sign that states "no laboratory on the premises."

The Board proposes new Subchapter 4 to deal with dispensing of contact lenses. N.J.A.C. 13:33-3.1 is proposed for recodification as N.J.A.C. 13:33-4.1. This rule allows an ophthalmic dispenser to dispense contact lenses when presented with a valid prescription, which includes the name, address and phone number of the prescriber. An ophthalmic dispenser may replace, reproduce or duplicate a previously dispensed contact lens if the replacement, reproduction or duplication is based on a prescription or the ophthalmic dispenser's records. An ophthalmic dispenser must provide a warning that informs the patient to remove the contact lenses and consult an eye care practitioner in the case of discomfort, watering, vision change or redness. Contact lenses may not be dispensed more than two years after the date of the prescription and ophthalmic dispensers are prohibited from dispensing contact lenses when the seal on the contact lens container has been opened. An ophthalmic dispenser is required to maintain records regarding patients to whom contact lenses have been dispensed. An ophthalmic dispenser is allowed to mail contact lenses to a patient pursuant to a valid prescription, provided that the dispenser maintains a record of the prescription or lens specifications and the prescription is not more than two years old. The rule requires ophthalmic dispensers to complete three classroom hours covering the dispensing of contact lenses every biennial period. The Board proposes to amend this rule to clarify that ophthalmic dispensers are required to complete three hours of continuing education covering dispensing of contact lenses every biennial period.

The Board proposes new Subchapter 5 to deal with standards of practice. N.J.A.C. 13:33-1.29 is proposed for recodification as N.J.A.C. 13:33-5.1. This rule outlines the requirements for recordkeeping. An ophthalmic dispenser must keep records, for at least six years, that include all prescriptions that he or she has filled and all of the data required in the preparation and dispensing of eyeglasses. The rule also sets forth specific information that licensees must obtain in order to fabricate, verify or duplicate a lens or pair of eyeglasses, and the equipment a licensee must use to obtain this information. Any individual who uses this equipment to obtain information for the fabricating, dispensing, verifying or duplicating of eyeglasses is practicing ophthalmic dispensing or ophthalmic technicianry. N.J.A.C. 13:33- 1.38, proposed for recodification as N.J.A.C. 13:33-5.2, sets forth the minimum standards and tolerances for lenses. The rule requires a licensee to obtain a complete prescription from a refractionist. An ophthalmic dispenser is required to measure or specify the eye size, bridge size, temple length, frame shape and style, patient pupillary distance, optical centers and bifocal type, segment height and base curve. Licensees must verify the completed lenses to insure the accuracy of the prescription.

N.J.A.C. 13:33-1.42, proposed for recodification as N.J.A.C. 13:33-5.3, requires that every licensee and permit holder wear an identification tag which indicates the name of the individual, the license or permit number and the level of licensure. N.J.A.C. 13:33-1.30, proposed for recodification as N.J.A.C. 13:33-5.4, requires employers to ensure that all regulations and statutes are observed in their establishments. Employers also must ensure that employees are authorized to work in the ophthalmic field by the Board and that employees display their certificates.

N.J.A.C. 13:33-1.17, which is proposed for recodification as N.J.A.C. 13:33-5.5, summarizes the role and permissible functions of an ophthalmic dispenser. An ophthalmic dispenser is permitted to: perform all the functions of an ophthalmic technician; verify lenses, spectacles, eyeglasses or contact lenses; analyze and interpret prescriptions and lens design; take interpupillary distances and bifocal, trifocal, and progressive placement measurements; select and measure frames; fit, adjust or adapt eyewear to the face and eyes; dispense contact lenses; and mail completed eyeglasses and contact lenses. The Board proposes to amend this rule to clarify its language and to reflect the recodification. The Board proposes to amend subsection (b), specifically paragraph (b)4 which states that taking interpupillary distances is within the scope of practice of ophthalmic dispensers. The Board proposes to delete the phrase "distance and near" from this provision. The Board believes that the term "interpupillary distances" is sufficiently clear without the need to define the term with the phrase "distance and near." N.J.A.C. 13:33-1.18, which is proposed for recodification as N.J.A.C. 13:33-5.6, defines an ophthalmic technician as one who is knowledgeable of optics and produces lenses and assembles eyewear. An ophthalmic technician is permitted to: read and transpose a prescription or work order for lenses; grind lenses; mount lenses in frames; evaluate measurements and sizes; verify lens conformity to either the written prescription or to the lenses being duplicated; inspect a lens; and inspect completed eyeglasses.

N.J.A.C. 13:33-1.28 is proposed for recodification as N.J.A.C. 13:33- 5.7. This rule allows ophthalmic dispensers to mail completed eyeglasses as long as the dispenser has measured the patient for the eyeglasses, maintains a record of the prescription and lens specifications and assumes responsibility for the accuracy and fit of the eyeglasses. N.J.A.C. 13:33-1.37 is proposed for recodification as N.J.A.C. 13:33-5.8. This rule prohibits rebates in return for the referral of patients. A licensee is allowed to recommend an ophthalmologist or optometrist to a patient, but he or she is prohibited from offering to pay a rebate or commission to, or from receiving a rebate or commission from, a physician, optometrist or any other person in return for the referral of patients.

The Board proposes new Subchapter 6 to deal with continuing education. N.J.A.C. 13:33-1.43 is proposed for recodification as N.J.A.C. 13:33-6.1. This rule states that ophthalmic dispensers must indicate when renewing licensure that he or she has completed twelve credits of continuing education. Ophthalmic dispensers are required to keep a record of all continuing education courses that they have attended. A person who wishes to conduct a continuing education course must apply to the Board for approval. The Board shall maintain a list of approved courses which is available upon request. Once approved, the sponsor must notify licensees of the courses offered and maintain, and provide to students, attendance records. The Board proposes to amend this rule to reflect the chapter section recodifications. N.J.A.C. 13:33-3.2, proposed for recodification as N.J.A.C. 13:33-6.2, sets forth continuing education requirements regarding dispensing of contact lenses. An ophthalmic dispenser is required to complete during each renewal period three hours of continuing education on contact lens dispensing. These three hours must cover: analysis and interpretation of prescriptions and specifications for contact lenses; preparation of orders, fabrication of lenses, lens care and maintenance and use of lens containers and solutions; instruction of patients in the proper insertion, removal and use of contact lenses; and innovative techniques in contact lenses and their dispensing. The Board proposes to amend this rule to reflect the chapter section recodifications.

The Board proposes new Subchapter 7 to deal with advertising. N.J.A.C. 13:33-1.35 deals with advertising. The Board proposes to recodify this rule as three new rules. N.J.A.C. 13:33-1.35(a), (b), (c), (d), (e), (l) and (m) are proposed for recodification as N.J.A.C. 13:33-7.1. This rule allows a licensee to advertise as long as the advertisement does not discredit others who practice in the eye care field. Any advertisement that contains the price of lenses, frames, eyeglasses or contact lenses must state the type of lens being offered and the type of frame. Whenever a delivery time is advertised, a licensee is required to include any restrictions on that delivery in the advertisement. Any exceptions to advertised warranties must be listed in the advertisement. Individuals who advertise a price for ophthalmic items must answer telephone inquiries as to the availability of the advertised items. A licensee is allowed to advertise eye examinations provided he or she indicates that the examination is performed by optometrist or an ophthalmologist. Any advertisement must include the telephone number and street address of the business.

N.J.A.C. 13:33-1.35(f), (j) and (k) are proposed for recodification as N.J.A.C. 13:33-7.2. This rule sets forth advertising and marketing practices that are unlawful. The rule requires that an advertiser maintain a sufficient quantity of advertised goods to meet anticipated consumer demand, that a sale item be offered for sale during the period in which it is advertised, and that, if no time period is advertised, items be available to meet anticipated consumer demand for three business days after the sale. These restrictions do not apply to advertisements that are on an in-store sign, items that are advertised as in a specific quantity or items that are advertised as in a "limited supply." Advertisements must designate if there are special factors relating to price, quality, condition or availability. Advertisers are required to post notice of advertised merchandise next to the merchandise or at the entrances to the establishment and cannot obscure a material fact in an advertisement. An advertiser is prohibited from using the terms "warehouse," "factory outlet," "discount," "bargain," "clearance," "liquidators," or other words or terms of similar meaning when such terms do not accurately represent the advertiser. An advertiser is required to provide a raincheck to customers if an item is unavailable. An advertiser may not make false or misleading representations concerning reasons for price reductions, the nature of an offering or the quantity of advertised merchandise available for sale. An advertiser must have documents that indicate the safety, performance, quality or price of the advertised merchandise. These documents also must attest to the nature of the offering and the quantity of advertised merchandise available for sale. An advertiser may not compare the cost of supply with the price at retail for advertised merchandise. An advertiser may not use the term "cost," "wholesale" or other similar terms to describe an advertised price where such price is not equal to or less than the price per unit paid by the advertiser. A licensee shall not use a fictitious former price in an advertisement. A former price is deemed fictitious if it cannot be substantiated. A licensee may not advertise in such a way as to suggest that he or she is qualified to give advice concerning eye care or that he or she can perform eye examinations.

N.J.A.C. 13:33-1.35(g), (h) and (i) are proposed for recodification as N.J.A.C. 13:33-7.3. This rule deals with prices in advertisements. A licensee who advertises a reduced price is required to state the selling price, the former price or the amount of the reduction in dollars, the period of time during which the price reduction shall be applicable, the former price and the basis upon which the former price was established. A licensee may state a former price or a selling price in terms of a price range when he or she operates more than one retail outlet at which advertised merchandise has been available for purchase at different prices or he or she advertises two or more items of comparable merchandise at reduced prices. A licensee who offers merchandise for sale at a savings of a percentage must state the basis upon which the former price was established in the advertisement.

The Board proposes new Subchapter 8 to set forth general rules of practice. N.J.A.C. 13:33-8.1 is a proposed new rule that imposes new requirements for renewal. The proposed new rule requires licensees to renew registration certificates biennially. Notice of renewal shall be sent to licensees by the Board 60 days prior to the date of expiration. A licensee is required to submit the renewal application and pay the renewal fee. A licensee may renew 30 days after the expiration date by submitting a renewal application and paying the late and renewal fees. If a licensee fails to renew within 30 days after the expiration date, the licensee will be suspended. A person who continues to practice after suspension is engaging in unlicensed practice. A person seeking reinstatement within five years of suspension must submit a reinstatement application, delinquent renewal fees, the reinstatement fee, a certification verifying that the applicant has completed all the continuing education requirements for each year of the suspension and an affidavit listing each job held by the applicant during the years of suspension. A person seeking reinstatement more than five years from the date of suspension shall pass the licensing examination and submit a reinstatement application, delinquent renewal fees, the reinstatement fee and an affidavit listing each job held during the years of suspension. Licensees are permitted to renew as inactive by submitting to the Board a renewal application choosing inactive status. An inactive licensee cannot practice. A licensee on inactive status is allowed to apply for active status and is required to show that he or she has completed the continuing education credits for the biennial periods in which he or she was inactive and to pay the renewal fee.

N.J.A.C. 13:33-1.16, which is proposed for recodification as N.J.A.C. 13:33-8.2, states that any licensee who is engaged in active military duty is not required to pay the renewal fee for any year during which he or she is in the service. Licensees who are returning from military service are required to complete continuing education requirements within twelve months of returning to practice. N.J.A.C. 13:33-1.8 is proposed for recodification as N.J.A.C. 13:33-8.3. It requires any person holding a certificate or a permit to notify the Board within 10 days of a change of address or place of employment. N.J.A.C. 13:33-1.23, proposed for recodification as N.J.A.C. 13:33-8.4, requires a licensee to request a new certificate from the Board when the licensee changes his or her name. The new registration certificate will be sent to a licensee when the Board receives notarized evidence of a legal name change, the original certificate and the certificate replacement fee. The Board proposes to amend this rule to reflect the chapter section recodifications.

N.J.A.C. 13:33-1.20, proposed for recodification as N.J.A.C. 13:33-8.5, allows a licensee whose certificate of registration has been lost or destroyed to request a replacement certificate. The request must be in writing, include a certification that the certificate was lost or destroyed and must include the replacement fee. The Board proposes to amend this rule to reflect the chapter section recodifications. N.J.A.C. 13:33-1.40, proposed for recodification as N.J.A.C. 13:33-8.6, defines a "full calendar year" as a 12-month period of compensated employment and a "work week" as at least 32 hours long.

N.J.A.C. 13:33-1.44 deals with sexual misconduct, the Board proposes to recodify this rule as N.J.A.C. 13:33-8.7. A licensee is prohibited from engaging in sexual contact with a patient with whom he or she has an ongoing patient practitioner relationship. The relationship is considered ongoing unless the licensee has terminated it through written notice to the patient or the last professional service was performed more than six months ago. A licensee is prohibited from seeking sexual contact with a patient, from seeking sexual contact with any person in exchange for professional services or from engaging in a sexual discussion with a patient. A licensee may not sexually harass anyone either in a professional or non-professional setting. The rule also prohibits a licensee from engaging in any other activity that could be construed by a reasonable patient, co-worker, employee, student or supervisee as serving the licensee's prurient interests. A licensee is allowed to render services to his or her spouse. It is not a defense to a sexual misconduct charge that the patient solicited or consented to the sexual contact or that the licensee was in love with the patient. N.J.A.C. 13:33-1.41 sets forth the fees charged by the Board. The rule is proposed for recodification as N.J.A.C. 13:33-8.8 and is proposed for amendment to include two new fees. A $150.00 reinstatement fee and an inactive fee that will be set by the Board at a later date.

The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The rules proposed for readoption will continue to ensure that consumers receive eyewear that has been properly fabricated and fitted. The rules establish practice standards and ensure that ophthalmic dispensers and ophthalmic technicians remain accountable to the public and the Board. The proposed readoption of the current rules and proposed amendments will benefit the Board and licensees by providing procedures for the orderly administration of the Board and by establishing clear practice guidelines. The Board believes that the proposed recodification of the rules will have a beneficial impact as the rules will be organized so that licensees and consumers will more easily understand them.

N.J.A.C. 13:33-1.26 and 1.27, recodified as N.J.A.C. 13:33-1.1 and 1.2, require that ophthalmic dispenser apprentices be 17 years old and that ophthalmic technician apprentices be 16 years old so that apprentices have the requisite maturity to perform their duties and learn the intricacies of the practice. N.J.A.C. 13:33-1.1, recodified as N.J.A.C. 13:33-1.3, requires a licensee to obtain a certificate for any office in which he or she works which is not registered as the main office with the Board. This ensures that the Board will know where a licensee is working. N.J.A.C. 13:33-1.3, recodified as N.J.A.C. 13:33-1.5, has a beneficial impact by requiring that apprentices be supervised by licensees. N.J.A.C. 13:33-1.32 and 1.31, recodified as N.J.A.C. 13:33-1.6 and 1.7, set forth what a preceptor shall teach apprentice dispensers and technicians. These rules ensure that apprentices receive the training they need to pass the licensing examinations. N.J.A.C. 13:33-1.13 and 1.14, recodified as N.J.A.C. 13:33-1.8 and 1.9, set forth requirements for taking the licensing examination. These rules ensure that apprentices will be properly trained and educated to perform as licensees.

N.J.A.C. 13:33-1.11 and 1.12, recodified as N.J.A.C. 13:33-2.2 and 2.3, set standards for out-of-State ophthalmic dispensers and technicians who wish to work in this State. These standards allow qualified people to work in this State prior to licensure while ensuring that they meet New Jersey's practice standards. N.J.A.C. 13:33-1.15, recodified as N.J.A.C. 13:33- 2.4, provides applicants a process by which they can identify areas in which they lack adequate knowledge and an opportunity to correct those deficiencies.

N.J.A.C. 13:33-1.36, recodified as N.J.A.C. 13:33-3.1, requires licensees to rent space to optometrists or ophthalmologists only in return for a fixed dollar amount determined by the fair market value for rented space. This ensures licensees are not giving optometrists or ophthalmologists space in their establishment in return for inappropriate business considerations. N.J.A.C. 13:33-1.33, recodified as N.J.A.C. 13:33-3.2, requires licensees to display all certificates of registration to the public at the office location, ensuring that the public will know that the person producing their eyewear is licensed. N.J.A.C. 13:33-1.39, recodified as N.J.A.C. 13:33- 3.4, requires an employer to ensure that licensees working in his or her establishment are registered. This ensures that anyone who works in an ophthalmic establishment is properly registered with the Board. N.J.A.C. 13:33-2.1, recodified as N.J.A.C. 13:33-3.5, sets forth the equipment an ophthalmic establishment must have if apprentices are registered or fabricating of glasses is done on the premises. N.J.A.C. 13:33-2.2, recodified as N.J.A.C. 13:33-3.6, sets forth the equipment that must be on-site in an establishment which has no apprentices and where no fabrication occurs. These rules ensure that establishments will have adequate equipment to effectively provide services to the public.

N.J.A.C. 13:33-3.1, recodified as N.J.A.C. 13:33-4.1, ensures that licensees will properly dispense contact lenses, protecting consumers by ensuring that they receive the proper contact lenses. N.J.A.C. 13:33-1.29, recodified as N.J.A.C. 13:33-5.1, requires licensees to keep records of any prescription they fill. This protects licensees in the case of controversy over items that they have produced and protects the patient and prescribing ophthalmologist and optometrist if a licensee has made a mistake. N.J.A.C. 13:33-1.42, recodified as N.J.A.C. 13:33-5.3, requires licensees to wear identification tags. This ensures that the public will know the identity of the people they deal with in ophthalmic establishments. N.J.A.C. 13:33-1.17 and 1.18, recodified as N.J.A.C. 13:33-5.5 and 5.6, set forth the scope of practice for ophthalmic dispensers and technicians. This is beneficial as it ensures that licensees know what tasks and procedures they can perform as part of their professional duties. N.J.A.C. 13:33-1.28, recodified as N.J.A.C. 13:33-5.7, outlines standards to meet when a licensee mails eyewear. This ensures that consumers receive the correct eyewear through the mail.

N.J.A.C. 13:33-1.43 and 3.2, recodified as N.J.A.C. 13:33-6.1 and 6.2, set forth the continuing education standards for ophthalmic dispensers. These rules ensure that ophthalmic dispensers will have the requisite knowledge needed to safely and effectively provide eyewear to the public. N.J.A.C. 13:33-1.35, recodified as N.J.A.C. 13:33-7.1, 7.2 and 7.3, sets standards for advertising by licensees. These rules ensure that advertisements will be truthful, accurate and will not mislead or in any way defraud consumers. N.J.A.C. 13:33-1.44, recodified as N.J.A.C. 13:33-8.7, protects the public by prohibiting licensees from engaging in inappropriate sexual behavior.

Economic Impact

Some of the rules proposed for readoption and amendment will have an economic impact on applicants for licensure and licensees. N.J.A.C. 13:33-1.13 and 1.14, recodified as N.J.A.C. 13:33-1.8 and 1.9, require ophthalmic dispenser apprentices to take courses in ophthalmic science and requires ophthalmic dispenser apprentices and ophthalmic technician apprentices to take the licensing examination. The cost of these courses and the examinations are borne by the applicant. N.J.A.C. 13:33-1.11 and 1.12, recodified as N.J.A.C. 13:33-2.2 and 2.3, require out-of-State ophthalmic dispensers and technicians, who wish to be licensed in this State, to take the applicable licensing examination. The cost of the examination is borne by the applicant. N.J.A.C. 13:33-1.15, proposed for recodification as N.J.A.C. 13:33-2.4, allows an applicant who failed the licensing examination to request, in writing, a review of the examination. The cost of preparing this request is borne by the applicant.

Some of the rules proposed for readoption and amendment will have an economic impact on licensees. N.J.A.C. 13:33-1.7, recodified as N.J.A.C. 13:33- 3.3, requires licensees to pay for a branch office certificate for offices they work in other than the main office and requires a licensee to notify the Board if he or she will be working in a location other than that registered with the Board. The cost of notifying the Board and paying for a branch office certificate is borne by the licensee. N.J.A.C. 13:33-1.39, recodified as N.J.A.C. 13:33-3.4, requires an employer to display a sign at his or her establishment which states that the employer is responsible for the registration of all employees. The cost of purchasing and maintaining this sign is borne by the employer. N.J.A.C. 13:33-2.1 and 2.2, recodified as N.J.A.C. 13:33-3.5 and 3.6, set forth the equipment optical establishments must possess. The cost of obtaining and maintaining this equipment is borne by the owner of the ophthalmic establishment. N.J.A.C. 13:33-2.2 also requires an optical establishment which does not have a laboratory on the premises to display a notification that states "no laboratory on premises." The cost of obtaining this sign is borne by the owner of the optical establishment. N.J.A.C. 13:33-3.1, recodified as N.J.A.C. 13:33- 4.1, requires licensees to comply with specific standards when dispensing contact lenses, including recordkeeping requirements. The costs of complying with these requirements are borne by the licensee.

N.J.A.C. 13:33-1.29, recodified as N.J.A.C. 13:33-5.1, requires licensees to keep records of all prescriptions filled. The cost of maintaining these records is borne by the licensee. N.J.A.C. 13:33-1.42, recodified as N.J.A.C. 13:33-5.3, requires licensees and permit holders to wear identification tags. The cost of obtaining the identification tag is borne by the licensee. N.J.A.C. 13:33-1.28, recodified as N.J.A.C. 13:33-5.7, requires licensees to comply with specific standards when mailing eyewear, including recordkeeping requirements. The costs of complying with these requirements are borne by licensees. N.J.A.C. 13:33-1.43 and 3.2, recodified as N.J.A.C. 13:33-6.1 and 6.2, require licensees to take continuing education courses. The cost of these courses is borne by the licensee. N.J.A.C. 13:33-1.35, recodified as N.J.A.C. 13:33-7.1, 7.2 and 7.3, imposes costs on licensees who advertise. N.J.A.C. 13:33-1.19, recodified as N.J.A.C. 13:33-8.1, imposes costs on licensees who let their licenses lapse. N.J.A.C. 13:33-1.8, recodified as N.J.A.C. 13:33-8.3, requires licensees to notify the Board in writing when the licensee changes the address of employment. The cost of providing this notification is borne by the licensee. N.J.A.C. 13:33-1.23, recodified as N.J.A.C. 13:33-8.4, allows a licensee to change his or her name on the license if they meet certain criteria. The cost of providing the Board with the information it needs to issue the new license is borne by the licensee. N.J.A.C. 13:33-1.20, recodified as N.J.A.C. 13:33-8.5, requires licensees who are requesting a replacement certificate of registration to pay the certificate replacement fee. N.J.A.C. 13:33-1.41, recodified as N.J.A.C. 13:33-8.8, sets forth the fees which the Board assesses for services rendered to its licensees. The fee schedule has an economic impact on licensees and applicants for licensure by establishing fees that they must pay in order for the Board to be self- funding and in compliance with N.J.S.A. 45:1-3.2.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the rules proposed for readoption with amendments.

Jobs Impact

Although the Board does not believe that the proposed readoption of and amendments to N.J.A.C. 13:33 will result in an increase or decrease of jobs in this State, several rules do affect ophthalmic dispenser and ophthalmic technician jobs. N.J.A.C. 13:33-1.13 and 1.14, recodified as N.J.A.C. 13:33-1.8 and 1.9, establish standards for the licensing examination. N.J.A.C. 13:33-1.24, recodified as N.J.A.C. 13:33-2.1, sets standards for applying for the licensing examination. These rules affect who may be licensed and, therefore, who may work in the ophthalmic field. N.J.A.C. 13:33-1.11 and 1.12, recodified as N.J.A.C. 13:33-2.2 and 2.3, allow out-of-State ophthalmic dispensers and ophthalmic technicians to work in this State pending the licensing examination. These rules provide for a larger pool of people who may provide ophthalmic services. N.J.A.C. 13:33-1.39, recodified as N.J.A.C. 13:33-3.4, requires that employers register all employees with the Board before the employee is allowed to work. This impacts jobs by only allowing those people who are registered with the Board to work.

Agriculture Industry Impact

The rules proposed for readoption with amendments will not have any impact on the agriculture industry of this State.

Regulatory Flexibility Analysis

If, for the purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the approximately 5,000 ophthalmic dispensers and ophthalmic technicians are deemed "small businesses," then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposal including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs of the proposal with an indication of the varying impact on small businesses of differing types and sizes and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.

The costs imposed on small businesses by the rules proposed for readoption and amendments are the same costs that are imposed on all businesses as outlined in the Economic Impact statement above. The Board does not believe that licensees will need to employ any professional services to comply with the requirements of the proposed readoption and amendments. The proposed readoption and amendments to N.J.A.C. 13:33 impose various reporting, recordkeeping and compliance requirements upon Board licensees. These requirements are discussed in the Summary statement above.

The Board believes that because the rules proposed for readoption and amendments further the welfare and safety of the public in its dealings with ophthalmic dispensers and ophthalmic technicians, the rules and amendments must be applied uniformly to all ophthalmic dispensers and ophthalmic technicians regardless of the size of the business.

Smart Growth Impact

The Board does not anticipate that the rules proposed for readoption with amendments will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:33.

Full text of the proposed repeals may be found in the New Jersey Administrative Code at N.J.A.C. 13:33-1.19 and 1.35.

Full text of the proposed amendments follows :

SUBCHAPTER 1. <<-GENERAL RULES AND REGULATIONS->> <<+APPRENTICESHIPS+>>

<< NJ ADC 13:33-1.26 >>

<< NJ ADC 13:33-1.1 >>

13:33-<<-1.26->><<+1.1+>> Minimum age for ophthalmic dispenser's apprentice certificate<<---->>

Applicants for an ophthalmic dispenser's apprentice certificate shall be at least 17 years old.

<< NJ ADC 13:33-1.27 >>

<< NJ ADC 13:33-1.2 >>

13:33-<<-1.27->><<+1.2+>> Minimum age for ophthalmic technician's apprentice certificate

Applicants for an ophthalmic technician's apprentice certificate shall be at least 16 years old.

Recodify existing N.J.A.C. 13:33-1.1 and 1.2 as <<+1.3 and 1.4+>> (No change in text.)

<< NJ ADC 13:33-1.3 >>

<< NJ ADC 13:33-1.5 >>

13:33-<<-1.3->><<+1.5+>> Supervision of apprentice ophthalmic dispensers and technicians

(a) (No change.)

(b) During an apprenticeship<<+,+>> a supervising preceptor shall be qualified to instruct and train an apprentice in the requisite skills, methods and techniques so as to assure that an apprentice is competent in producing and reproducing ophthalmic lenses and kindred products and mounting the same to supporting materials. In addition, a preceptor must be qualified to afford training and instruction in the following areas:

1. With regard to ophthalmic dispenser apprentices:

i.-iv. (No change.)

v. Use of all required equipment pursuant to N.J.A.C. 13:33-<<- 2.1->><<+3.5+>> and <<-2.2->><<+3.6+>>, including, but not limited to, vertometer, lensometer or any other automatic electron equipment to measure the power of a lens, a lens clock and millimeter ruler, hand or automatic protractor for marking up lenses, automatic edger and handfinishing stone;

vi. (No change.)

2. With regard to ophthalmic technician apprentices:

i.-ii. (No change.)

iii. Use of all required equipment pursuant to N.J.A.C. 13:33-<<- 2.1->><<+3.5+>> and <<-2.2->><<+3.6+>>, including, but not limited to, vertometer, lensometer or any other automatic electronic equipment to measure the power of a lens, a lens clock and millimeter ruler, hand or automatic protractor for marking up lenses, automatic edger and hand-finishing stone;

iv. (No change.)

(c)-(e) (No change.)

<< NJ ADC 13:33-1.4 >>

<<-13:33-1.4 (Reserved)->>

<< NJ ADC 13:33-1.5 >>

<<-13:33-1.5 (Reserved)->>

<< NJ ADC 13:33-1.6 >>

<<-13:33-1.6 (Reserved)->>

<< NJ ADC 13:33-1.32 >>

<< NJ ADC 13:33-1.6 >>

13:33-<<-1.32->><<+1.6+>> Preparation of apprentice ophthalmic dispensers for examination

(a) (No change.)

(Agency Note: N.J.A.C. 13:33-1.7 is proposed for recodification with amendments as N.J.A.C. 13:33-3.3.)

<< NJ ADC 13:33-1.31 >>

<< NJ ADC 13:33-1.7 >>

13:33-<<-1.31->><<+1.7+>> Preparation of apprentice ophthalmic technicians for examination

(a) (No change.)

(Agency Note: N.J.A.C. 13:33-1.8 is proposed for recodification as N.J.A.C. 13:33-8.3.)

<< NJ ADC 13:33-1.13 >>

<< NJ ADC 13:33-1.8 >>

13:33-<<-1.13->><<+1.8+>> Ophthalmic dispenser apprentice; licensing examination

(a)-(h) (No change.)

<< NJ ADC 13:33-1.9 >>

<<-13:33-1.9 (Reserved)->>

<< NJ ADC 13:33-1.10 >>

<<-13:33-1.10 (Reserved)->>

<< NJ ADC 13:33-1.14 >>

<< NJ ADC 13:33-1.9 >>

13:33-<<-1.14->><<+1.9+>> Ophthalmic technician apprentice; licensing examination

(a)-(d) (No change.)

(Agency Note: N.J.A.C. 13:33-1.11, 1.12, 1.13, 1.14, 1.15, 1.16, 1.17 and 1.18 are proposed for recodification as N.J.A.C. 13:33-2.2, 2.3, 1.8, 1.9, 2.4, 8.2, 5.5, and 5.6, respectively.)

(Agency Note: N.J.A.C. 13:33-1.20 is proposed for recodification with amendment as N.J.A.C. 13:33-8.5.)

<< NJ ADC 13:33-1.21 >>

<<-13:33-1.21 (Reserved)->>

(Agency Note: N.J.A.C. 13:33-1.22, 1.23 and 1.24 are proposed for recodification as N.J.A.C. 13:33-2.5, 8.4 and 2.1, respectively.)

<< NJ ADC 13:33-1.25 >>

<<-13:33-1.25 (Reserved)->>

(Agency Note: N.J.A.C. 13:33-1.26, 1.27, 1.28, 1.29, 1.30, 1.31, 1.32, and 1.33 are proposed for recodification as N.J.A.C. 13:33-1.1, 1.2, 5.7, 5.1, 5.4, 1.7, 1.6, and 3.2, respectively.)

<< NJ ADC 13:33-1.34 >>

<<-13:33-1.34 (Reserved)->>

(Agency Note: N.J.A.C. 13:33-1.36, 1.37, 1.38, 1.39, 1.40, 1.41, 1.42, 1.43, and 1.44 are proposed for recodification as N.J.A.C. 13:33-3.1, 5.8, 5.2, 3.4, 8.6, 8.8, 5.3, 6.1, and 8.7, respectively.)

SUBCHAPTER 2. <<-EQUIPMENT->> <<+LICENSURE+>>

(Agency Note: N.J.A.C. 13:33-2.1 and 2.2 are proposed for recodification as N.J.A.C. 13:33-3.5 and 3.6, respectively.)

<< NJ ADC 13:33-1.24 >>

<< NJ ADC 13:33-2.1 >>

13:33-<<-1.24->><<+2.1+>> Application for examination

(a)-(b) (No change.)

<< NJ ADC 13:33-1.11 >>

<< NJ ADC 13:33-2.2 >>

13:33-<<-1.11->><<+2.2+>> Out-of-State ophthalmic dispenser application

(a)-(b) (No change.)

(c) If the holder of a Temporary Ophthalmic Dispenser Permit fails the Ophthalmic Dispenser licensing examination once, the Temporary Ophthalmic Dispenser Permit may be renewed one time. An applicant working as a Temporary Ophthalmic Dispenser pursuant to a renewed permit shall take the next scheduled licensing examination. If the applicant fails the second examination, the applicant shall surrender the Temporary Ophthalmic Dispenser Permit and shall no longer work as an ophthalmic dispenser until he or she passes the licensing examination. If an applicant fails to take the next scheduled examination because of illness, emergency or other good cause, the Board may allow the applicant to take another examination. An applicant who has surrendered the Temporary Ophthalmic Dispenser Permit may work in an ophthalmic dispensing establishment supervised by a preceptor pursuant to N.J.A.C. 13:33-<<- 1.3->><<+1.5+>>. An applicant who has surrendered the Temporary Ophthalmic Dispenser Permit may take the Ophthalmic Dispenser Licensing examination provided that the applicant practiced as an Ophthalmic Dispenser in another state within the previous five years. An applicant whose last year of Ophthalmic Dispenser practice was more than five years ago may enter an apprenticeship program for licensure.

(d) (No change.)

<< NJ ADC 13:33-1.12 >>

<< NJ ADC 13:33-2.3 >>

13:33-<<-1.12->><<+2.3+>> Out-of-State ophthalmic technician applicants

(a)-(b) (No change.)

(c) If the holder of a Temporary Ophthalmic Technician Permit fails the Ophthalmic Technician licensing examination, the Temporary Ophthalmic Technician Permit may be renewed one time. An applicant working as a Temporary Ophthalmic Technician pursuant to a renewed Temporary Ophthalmic Technician Permit shall take the next scheduled licensing examination. If the applicant fails the second examination, he or she shall surrender the Temporary Ophthalmic Technician Permit and shall no longer work as an Ophthalmic Technician until he or she passes the licensing examination. If an applicant fails to take the next scheduled examination because of illness, emergency or other good cause, the Board may allow the applicant to take another examination. An applicant who has surrendered his or her Temporary Ophthalmic Technician Permit may work in an Ophthalmic establishment supervised by a preceptor pursuant to N.J.A.C. 13:33-<<-1.3->><<+1.5+>>. An applicant who has surrendered the Temporary Ophthalmic Technician Permit may take the Ophthalmic Technician Licensing examination provided that the applicant practiced as an Ophthalmic Technician in another state within the previous five years. An applicant whose last year of Ophthalmic Technician practice was more than five years ago may enter an apprenticeship program for licensure.

(d) (No change.)

<< NJ ADC 13:33-1.15 >>

<< NJ ADC 13:33-2.4 >>

13:33-<<-1.15->><<+2.4+>> Review of examinations

(a)-(d) (No change.)

<< NJ ADC 13:33-1.22 >>

<< NJ ADC 13:33-2.5 >>

13:33-<<-1.22->><<+2.5+>> Failure to apply for licensure within two years of examination; reexamination required

If an applicant who has passed a licensing examination fails to apply for a license within two years of passing the examination, the applicant shall be required to retake the examination before applying for a license.

SUBCHAPTER 3. <<-DISPENSING OF CONTACT LENSES->> <<+PROFESSIONAL PRACTICE+>>

(Agency Note: N.J.A.C. 13:33-3.1 and 3.2 are proposed for recodification as N.J.A.C. 13:33-4.1 and 6.2, respectively.)

<< NJ ADC 13:33-1.36 >>

<< NJ ADC 13:33-3.1 >>

13:33-<<-1.36->><<+3.1+>> Space rental agreements with other health care practitioners

(a)-(b) (No change.)

<< NJ ADC 13:33-3.2 >>

13:33-<<-1.33->><<+3.2+>> Display of certificate of registration

(a)-(b) (No change.)

<< NJ ADC 13:33-1.7 >>

<< NJ ADC 13:33-3.3 >>

13:33-<<-1.7->><<+3.3+>> Branch office certificate

(a) (No change.)

(b) A fee will be charged for this certificate as indicated in N.J.A.C. 13:33-<<-1.41->><<+8.8+>>.

(c) (No change.)

(d) If a licensee spends or intends to spend more than 12 days in a calendar year at unregistered locations, he or she shall notify the Board in writing. The licensee shall obtain a branch certificate from the Board for any location in which he or she practices and shall pay the branch office registration fee pursuant to N.J.A.C. 13:33-<<-1.41->><<+8.8+>>.

<< NJ ADC 13:33-1.39 >>

<< NJ ADC 13:33-3.4 >>

13:33-<<-1.39->><<+3.4+>> Permits: registration

(a)-(c) (No change.)

<< NJ ADC 13:33-2.1 >>

<< NJ ADC 13:33-3.5 >>

13:33-<<-2.1->><<+3.5+>> Minimum optical equipment in establishments where apprentices are registered and/or where fabricating is done on the premises

(a) (No change.)

<< NJ ADC 13:33-2.2 >>

<< NJ ADC 13:33-3.6 >>

13:33-<<-2.2->><<+3.6+>> Optical equipment required for practice of ophthalmic dispensing in establishments where no fabricating is done on premises and where no apprentices are registered

(a)-(b) (No change.)

<<+SUBCHAPTER 4. DISPENSING OF CONTACT LENSES+>>

<< NJ ADC 13:33-3.1 >>

<< NJ ADC 13:33-4.1 >>

13:33-<<-3.1->><<+4.1+>> Dispensing of contact lenses

(a)-(f) (No change.)

<<+(g) Ophthalmic dispensers shall complete three classroom hours of continuing education covering the dispensing of contact lenses pursuant to N.J.A.C. 13:33-6.2 every biennial period.+>>

<<+SUBCHAPTER 5. PRACTICE STANDARDS+>>

<< NJ ADC 13:33-1.29 >>

<< NJ ADC 13:33-5.1 >>

13:33-<<-1.29->><<+5.1+>> Record of prescriptions filled

(a)-(c) (No change.)

<< NJ ADC 13:33-1.38 >>

<< NJ ADC 13:33-5.2 >>

13:33-<<-1.38->><<+5.2+>> Minimum standards and tolerances

(a)-(b) (No change.)

<< NJ ADC 13:33-1.42 >>

<< NJ ADC 13:33-5.3 >>

13:33-<<-1.42->><<+5.3+>> Identification tags

Each licensee and permit holder shall wear an identification tag, which shall be clearly visible to the patient at all times. The tag shall bear the first name or initial, the full second name, the license or permit number, and the level of licensure. The letters on the tag shall be in type not smaller than 1/4 inch.

<< NJ ADC 13:33-1.30 >>

<< NJ ADC 13:33-5.4 >>

13:33-<<-1.30->><<+5.4+>> Compliance with rules and regulations

(a)-(c) (No change.)

<< NJ ADC 13:33-1.17 >>

<< NJ ADC 13:33-5.5 >>

13:33-<<-1.17->><<+5.5+>> Ophthalmic dispenser: definition; scope of practice

(a) A licensed ophthalmic dispenser <<+may+>> prepare<<-s->> and dispense<<-s->> to the intended wearer lenses, spectacles, eyeglasses, appurtenances thereto, or contact lenses only if those preparations are based on a written prescription from a licensed physician or licensed optometrist. A licensed ophthalmic dispenser <<+may+>> also duplicate<<-s->> or replace<<-s->> existing lenses, spectacles, eyeglasses, appurtenances, or contact lenses.

(b) The following functions are within the scope of practice of a licensed ophthalmic dispenser:

1. Those activities performed by licensed ophthalmic technicians as set forth in N.J.A.C. 13:33-<<-1.18(b)->><<+5.6(b)+>>;

2.-3. (No change.)

4. The taking of interpupillary distances <<-(distance and near)->> and bifocal, trifocal, and progressive placement measurements;

5.-6. (No change.)

7. The dispensing of contact lenses pursuant to N.J.A.C. 13:33-<<- 3.1->><<+4.1+>>;

8. The mailing of completed eyeglasses pursuant to N.J.A.C. 13:33-<<- 1.28->><<+5.7+>>; and

9. The mailing of contact lenses pursuant to N.J.A.C. 13:33-<<- 3.1->><<+4.1+>>.

<< NJ ADC 13:33-1.18 >>

<< NJ ADC 13:33-5.6 >>

13:33-<<-1.18->><<+5.6+>> Ophthalmic technician: definition; scope of practice

(a)-(b) (No change.)

<< NJ ADC 13:33-1.28 >>

<< NJ ADC 13:33-5.7 >>

13:33-<<-1.28->><<+5.7+>> Mailing completed eyewear

(a) (No change.)

<< NJ ADC 13:33-1.37 >>

<< NJ ADC 13:33-5.8 >>

13:33-<<-1.37->><<+5.8+>> Prohibition on rebates and commissions for referring patients

(a)-(b) (No change.)

<<+SUBCHAPTER 6. CONTINUING EDUCATION+>>

<< NJ ADC 13:33-1.43 >>

<< NJ ADC 13:33-6.1 >>

13:33-<<-1.43->><<+6.1+>> Continuing education requirements

(a) (No change.)

(b) Each ophthalmic dispenser licensed by the Board shall successfully complete 12 credits per biennial period of approved continuing education course work, of which three such credits shall be in the dispensing of contact lenses in compliance with N.J.A.C. 13:33-<<-3.2->><<+6.2+>>. One credit shall equal one hour of attendance at an approved course. Two credits may be carried over into a succeeding biennial period only if earned during the last six months of the preceding biennial period.

(c)-(f) (No change.)

<< NJ ADC 13:33-3.2 >>

<< NJ ADC 13:33-6.2 >>

13:33-<<-3.2->><<+6.2+>> Continuing education for dispensing of contact lenses

(a) During each biennial registration period, a licensed ophthalmic dispenser shall complete pursuant to N.J.A.C. 13:33-<<-1.43->><<+6.1+>>, a continuing education course of at least three classroom hours covering the dispensing of contact lenses. Such course shall include, at a minimum, instruction in the following areas related to contact lenses:

1.-4. (No change.)

<<+SUBCHAPTER 7. ADVERTISING+>>

<< NJ ADC 13:33-7.1 >>

<<+13:33-7.1 Advertising+>>

<<+(a) An ophthalmic dispenser or ophthalmic technician may advertise provided that the advertisement does not mislead or deceive the public or discredit others in the eye care field.+>>

<<+(b) Any advertisement, placed on or in newspapers, magazines, radio, television, flyers, on-premise signs, off-premise signs and the Internet, which contains the price of corrective lenses, frames, complete corrective eyeglasses or the dispensing of contact lenses shall, for each stated price:+>>

<<+1. Specify the type of lenses being offered, such as single vision, bifocal, trifocal, or progressive; whether they have tints or colorations; whether they are standard size or oversize; and of what material the lenses are made; and+>>

<<+2. Specify the type of frame and the material from which it is made; and whether the frame advertised has been discontinued by the manufacturer.+>>

<<+(c) Where delivery time is advertised, any restrictions imposed upon such delivery shall be in a minimum of 10 point type and shall be placed adjacent to the indicated delivery time.+>>

<<+(d) Where warranties and guarantees are advertised, all exceptions to such warranty or guarantee shall be listed.+>>

<<+(e) Anyone who advertises the price of lenses, frames, complete corrective eyeglasses or dispensing of contact lenses shall answer telephone inquiries on the availability and the prices of the advertised ophthalmic items.+>>

<<+(f) Licensees may advertise eye examinations provided they state that the examination is performed by an independent doctor of optometry or ophthalmologist.+>>

<<+(g) Any advertisement shall include the telephone number and street address of the business.+>>

<< NJ ADC 13:33-7.2 >>

<<+13:33-7.2 Unlawful practices+>>

<<+(a) The following practices shall be unlawful with respect to all advertisements:+>>

<<+1. The failure of an advertiser to maintain and offer for immediate purchase advertised merchandise in a quantity sufficient to meet anticipated consumer demand. When an advertisement states a specific period of time during which merchandise will be available for sale, such merchandise shall be made available to meet anticipated consumer demand during the stated period. When no stated period appears in the advertisement, a sufficient quantity of merchandise shall be made available to meet anticipated consumer demand during three consecutive business days commencing with the effective date of the advertisement. This paragraph shall not apply to merchandise which is advertised:+>>

<<+i. On an in-store sign only with no corresponding out-of-store sign;+>>

<<+ii. As being available in a specific quantity; or+>>

<<+iii. As being available in a "limited supply," pursuant to a "closeout sale" or pursuant to a "clearance sale" if such offering is represented to be permanently reduced, or the sale is one in which the advertiser offers for sale at a reduced price items of merchandise remaining at one or more specified locations which the advertiser will not have available for sale within a reasonable period of time after all such items have been sold;+>>

<<+2. The failure of an advertiser to specifically designate within an advertisement which merchandise items possess special or limiting factors relating to price, quality, condition or availability;+>>

<<+3. The failure to conspicuously post notice of advertised merchandise, on the business premises to which the advertisement applies, in proximity to the advertised merchandise or at all entrances to the business premises. Such notice may consist of a copy of the advertisement or may take the form of a tag attached to the merchandise or any sign with such terms as "sale," or "as advertised";+>>

<<+4. The use of any type, size, location, lighting, illustration, graphic depiction or color resulting in the obscuring of any material fact;+>>

<<+5. Describing the advertiser through the use of the terms "warehouse," "factory outlet," "discount," "bargain," "clearance," "liquidators," or other words or terms of similar meaning, whether in the advertiser's corporate, partnership or trade name or otherwise, where such terms do not reflect a bona fide description of the advertiser being described;+>>

<<+6. Whenever an advertiser provides a raincheck for an advertised item which is not available for immediate purchase, the failure to:+>>

<<+i. Honor or satisfy such raincheck within 60 days of issuance unless an extension of such time period is agreed to by the holder thereof;+>>

<<+ii. Give written or telephonic notice to the holder thereof when the merchandise is available and hold such merchandise for a reasonable time after giving such notice; and+>>

<<+iii. Offer a raincheck to all customers who are unable, due to the unavailability thereof, to purchase the advertised merchandise during the period of time during which the merchandise has been advertised as available for sale.+>>

<<+7. The making of false or misleading representations of facts concerning the reasons for, existence or amounts of price reductions, the nature of an offering or the quantity of advertised merchandise available for sale;+>>

<<+8. The failure of an advertiser to substantiate through documents, records or other written proof any claim made regarding the safety, performance, availability, efficiency, quality or price of the advertised merchandise, nature of the offering or quantity of advertised merchandise available for sale. Such records shall be made available upon request for inspection by the Board;+>>

<<+9. The use, directly or indirectly, of a comparison to a suggested retail price, inventory price, invoice price or similar terms that directly or indirectly compare or suggest a comparison between the cost of supply and the price at retail for the advertised merchandise; or+>>

<<+10. Use of the term "cost," "wholesale" or other similar terms to describe an advertised price where such price is not equal to or less than the price per unit paid by the advertiser to the manufacturer or distributor of the merchandise.+>>

<<+(b) An advertiser shall not use a fictitious former price in an advertisement. Use of a fictitious former price shall be deemed professional misconduct.+>>

<<+1. A former price or price range or the amount of reduction shall be deemed fictitious if it cannot be substantiated, through a showing of:+>>

<<+i. Sales of the advertised merchandise, or comparable merchandise of like grade or quality, made within the advertiser's trade area, the geographical area in which an advertiser solicits or makes a substantial number of sales, in the regular course of business at any time within 60 days prior to, or after, the effective date of the advertisement;+>>

<<+ii. That the advertised merchandise, or comparable merchandise of like grade or quality, was offered for sale at that price within the advertiser's trade area in the regular course of business during at least 28 days of a 90 day period before or after the effective date of the advertisement; or+>>

<<+iii. That the price does not exceed the supplier's cost plus the mark-up on the merchandise used by the advertiser in the regular course of business.+>>

<<+2. If the former price specifically references a time in the remote past during which it was offered, it shall be deemed fictitious unless substantiated pursuant to either (b)1i or iii above.+>>

<<+(c) It shall be unlawful to advertise or employ displays in such a manner as to suggest, infer or indicate that persons licensed under N.J.S.A. 52:17B-41.1 et seq. are qualified to give professional advice concerning eye care or perform eye examinations.+>>

<< NJ ADC 13:33-7.3 >>

<<+13:33-7.3 Reduced price sales; price ranges; percentage sales+>>

<<+(a) An advertiser advertising an item of merchandise specifically advertised for sale at a reduced price shall:+>>

<<+1. State the selling price or price range;+>>

<<+2. State the former price or price range or the amount of the reduction in dollars;+>>

<<+3. State with specificity in any price reduction advertisement the period of time during which the price reduction shall be applicable, unless the merchandise is advertised on an in-store sign with no corresponding out-of-store sign, or as being available in a specific quantity, or as being available in a "limited supply" pursuant to a "closeout sale" or a "clearance sale";+>>

<<+4. Set forth the former price or price range or the amount of reduction in dollars in close proximity to the selling price or price range and the advertised item; and+>>

<<+5. Set forth the basis upon which the former price or price range or the amount of reduction in dollars was established in close proximity to the former price or price range of the advertised item. In this regard, terms such as "comparable value," "our regular price," or words of similar import shall be used to designate the basis for the former price.+>>

<<+(b) A former price or a selling price may be stated in terms of a price range when:+>>

<<+1. An advertiser operates more than one retail outlet at which advertised merchandise has been or will be available for purchase at different prices in the ordinary course of business. In such case, the price range shall be based upon the sales or offers of sale at the advertiser's retail outlets; or+>>

<<+2. An advertiser advertises two or more items of comparable merchandise as available at reduced prices, in which case the price range shall be based upon former or usual selling prices of the advertised products.+>>

<<+(c) An advertiser offering merchandise for sale at a savings of a percentage shall set forth the basis upon which the former price was established in close proximity to the percentage reduction. In this regard, terms such as "our regular price" or words of similar import shall be used to designate the basis for the former price.+>>

<<+SUBCHAPTER 8. GENERAL PROVISIONS+>>

<< NJ ADC 13:33-8.1 >>

<<+13:33-8.1 Renewal of registration certificates+>>

<<+(a) Licenses shall be renewed biennially on a form provided by the Board. Each applicant shall attest that the continuing education requirements of N.J.A.C. 13:33-6.1 have been completed during the prior biennial period.+>>

<<+(b) The Board shall send a notice of renewal to each licensee, at least 60 days prior to the expiration of the license. If the notice to renew is not sent at least 60 days prior to the expiration date, no monetary penalties or fines shall apply to the holder for failure to renew.+>>

<<+(c) The licensee shall submit the renewal application and pay the renewal fee pursuant to N.J.A.C. 13:33-8.8 prior to the date of expiration of the license. If the licensee does not renew the license prior to its expiration date, the licensee may renew it no later than 30 days after its expiration date by submitting a renewal application and paying a renewal fee and a late fee pursuant to N.J.A.C. 13:33-8.8. A licensee who fails to renew the license within 30 days after the expiration date of the license shall be suspended without a hearing.+>>

<<+(d) Individuals who continue to hold themselves out as licensed after being suspended shall be deemed to have violated N.J.S.A. 52:17B-41.18, even if no notice of suspension had been provided to the person.+>>

<<+(e) A person seeking reinstatement within five years following the suspension of a license shall submit the following to the Board:+>>

<<+1. A completed reinstatement application;+>>

<<+2. Payment of all past delinquent renewal fees as set forth in N.J.A.C. 13:33-8.8;+>>

<<+3. Payment of a reinstatement fee as set forth in N.J.A.C. 13:33- 8.8;+>>

<<+4. A certification verifying completion of the continuing education credits required pursuant to N.J.A.C. 13:33-6.1 for the renewal of a license; and+>>

<<+5. An affidavit of employment listing each job held during the period of suspension which includes the names, addresses, and telephone numbers of each employer.+>>

<<+(f) A person seeking reinstatement after more than five years following the suspension of a certification shall satisfy the requirements of (e) above and shall successfully complete the examination required for initial certification as set forth in N.J.A.C. 13:33-1.8, for ophthalmic dispensers, and N.J.A.C. 13:33-1.9, for ophthalmic technicians.+>>

<<+(g) Renewal applications for all licenses shall provide the licensee with the option of either active or inactive renewal. Licensees electing to renew as inactive shall not hold themselves out to the public as licensees.+>>

<<+(h) Upon application to the Board, the Board may permit a licensee who has been on inactive status to return to active status provided such applicant completes the continuing education credits that are required per biennial period for each biennial period that the applicant is on inactive status.+>>

<< NJ ADC 13:33-1.16 >>

<< NJ ADC 13:33-8.2 >>

13:33-<<-1.16->><<+8.2+>> Military service

Any licensee who is engaged in active duty in the military service of this country shall be required to renew his or her license to keep it in force, but shall not be required to pay the renewal fee for any year during which he or she is in the service. Notwithstanding a licensee's engagement in active duty, a licensee shall be required to meet all continuing education requirements within 12 months of returning to practice.

<< NJ ADC 13:33-1.8 >>

<< NJ ADC 13:33-8.3 >>

13:33-<<-1.8->><<+8.3+>> Change of address

All persons holding certificates or permits must notify the Board within 10 days of any change of address or place of employment.

<< NJ ADC 13:33-1.23 >>

<< NJ ADC 13:33-1.23 >>

<< NJ ADC 13:33-8.4 >>

13:33-<<-1.23->><<+8.4+>> Change of name

(a) The Board shall issue a new registration certificate to any licensee whose name has been legally changed, upon receipt of:

1.-2. (No change.)

3. The certificate replacement fee set forth in N.J.A.C. 13:33-<<- 1.41->><<+8.8+>>.

<< NJ ADC 13:33-1.20 >>

<< NJ ADC 13:33-8.5 >>

13:33-<<-1.20->><<+8.5+>> Replacement certificates of registration

If a licensee's certificate of registration has been lost or destroyed, the licensee may request that the Board provide a replacement certificate of registration. Such request shall be in writing, include the certificate replacement fee pursuant to N.J.A.C. 13:33-<<-1.41->><<+8.8+>> and the licensee shall certify on a Board-provided form that the certificate has been lost or destroyed and has not been given to another person.

<< NJ ADC 13:33-1.40 >>

<< NJ ADC 13:33-8.6 >>

13:33-<<-1.40->><<+8.6+>> Full calendar year; week

A full calendar year shall consist of 12 months of compensated employment. A working week shall consist of no less than 32 hours.

<< NJ ADC 13:33-1.44 >>

P> << NJ ADC 13:33-8.7 >>

13:33-<<-1.44->><<+8.7+>> Sexual misconduct

(a)-(j) (No change.)

<< NJ ADC 13:33-1.41 >>

<< NJ ADC 13:33-8.8 >>

13:33-<<-1.41->><<+8.8+>> Fee schedule

(a) The following fees shall be charged by the Board effective upon promulgation.

1.-9. (No change.)

10. Reinstatement fee ...................................... 150.00

11. Inactive fee ......... (to be established by the Board by rule)



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