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RULE PROPOSALS
VOLUME 43, ISSUE 07
ISSUE DATE: APRIL 4, 2011
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY STATE BOARD OF OPTOMETRISTS

Proposed Readoption with Amendments: N.J.A.C. 13:38
New Jersey State Board of Optometrists Rules
 
Authorized By: New Jersey State Board of Optometrists, Lisa Affinito, Executive Director.
Authority: N.J.S.A. 45:12-1 et seq.

Calendar Reference: See Summary below for explanation of exception to the calendar requirements.
Proposal Number: PRN 2011-090.
 
Submit written comments by June 3, 2011 to:
 New Jersey State Board of Optometrists
 124 Halsey Street
 P.O. Box 45012
 Newark, NJ 07101

The agency proposal follows:
 
 
Social Impact
The rules proposed for readoption with amendments will continue to provide licensed optometrists with a clear and comprehensive set of rules to guide them in their professional practice. This will in turn continue to create a positive impact upon the licensed community and upon the consumers they serve.
The rules proposed for readoption with amendments continue to have a beneficial social impact upon the consumers of New Jersey by providing assurance that New Jersey licensed optometrists are competent, qualified and legally authorized to engage in the practice of optometry.
The readoption of the existing rules with amendments will continue to protect the public health, safety and welfare by requiring a high level of competence in the field of optometry. The Board will continue to regulate the practice of optometry by identifying those individuals who are qualified to engage in the practice of optometry, and to ensure that every licensed practitioner is aware of the procedures involved with licensure.
 
Economic Impact
The Board believes that the rules proposed for readoption with amendments will not significantly increase, or impose any new costs on licensees. The proposed readoption of N.J.A.C. 13:38-5.1 will continue to have an economic impact on applicants and licensees because of the fees associated with initial licensure, renewal and continuing education courses. However, the elimination of the endorsement fee and the continuing education credit fee in N.J.A.C. 13:38-5.1 will have a positive impact on licensees.
Otherwise, the readoption of N.J.A.C. 13:38, with amendments, will not have an economic impact either on the public or on licensees.
 
Federal Standards Statement
These rules comport with the Fairness to Contact Lens Consumers Act ß4(f), 15 U.S.C. ß7603(f). There are no other applicable Federal laws or standards.
 
Jobs Impact
The Board does not expect that the rules proposed for readoption with amendments will result in the creation or loss of jobs in the State.
 
Agriculture Industry Impact
The Board does not anticipate that the rules proposed for readoption with amendments will have any impact on the agriculture industry in the State.
 
Regulatory Flexibility Analysis
If, for the purposes of the Act, the approximately 1,328 Board licensees are considered "small businesses," then the following analysis applies.
Subchapter 2 imposes compliance requirements on licensees and establishes the general rules of optometric practice. The proposed amendment to N.J.A.C. 13:38-2.4 requires that all prescription blanks must be numbered and contain the licensee's National Provider Identifier Number if applicable. The proposed amendments to N.J.A.C. 13:38-2.4 contain recordkeeping and notice requirements discussed in the Summary above.
Subchapter 3 contains the general provisions relating to licensure of optometrists including requirements for application for licensure, renewal and reinstatement.
Subchapter 4 imposes requirements with respect to the use of therapeutic pharmaceutical agents including the educational and examination requirements for certification.
Subchapter 5 sets forth the fees necessary to support the operations of the Board. The Board is proposing that in N.J.A.C. 13:38-5.1, the $ 75.00 endorsement fee and the $ 50.00 continuing education fee be deleted because the Board no longer keeps track of continuing education or issues certifications. Instead, the licensees are responsible for maintaining records of their continuing education credits. The Board also charges an initial application fee to those licensees that apply for endorsement thereby eliminating the need for a separate endorsement fee.
Subchapter 6 imposes recordkeeping requirements with respect to licensees responsibilities for treatment records. The proposed new language in N.J.A.C. 13:38-6.1(d) requires optometrists to provide a copy of the patient's prescription, to a patient's representative, upon the patient's request. N.J.A.C. 13:38-6.1(d) requires that after the completion of a patient's comprehensive eye examination and upon the patient's request, the optometrist shall give a copy of the patient's prescription for eyeglasses to another optometrist, ophthalmologist, ophthalmic dispenser or a patient's authorized representative.
The rules proposed for readoption continue to impose recordkeeping requirements as discussed above. No additional professional services will be needed to comply with the rules proposed for readoption. The Board believes that the rules proposed for readoption should be uniformly applied to all licensees in order to ensure the health, welfare and safety of the general public in the practice of optometry.
 
Smart Growth Impact
The Board does not believe that the rules proposed for readoption with amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.
 
Housing Affordability Impact
The rules proposed for readoption with amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules proposed for readoption with amendments concern the practice of optometry.
 
Smart Growth Development Impact
The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the rules proposed for readoption with amendments concern the practice of optometry.
 
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:38.
 
Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
 
SUBCHAPTER 1.    ADVERTISEMENTS AND SOLICITATION
 
13:38-1.3   Permissible business structures; referral fees
 
(a) As used in this section, the following words and terms shall have the following meanings unless the context clearly indicates otherwise.
 
. . .
 
"Closely allied health care professional" means an individual who provides professional services and is licensed in New Jersey by a professional or occupational licensing board or other State agency, in any of the following fields pursuant to N.J.S.A. 14A:17-3(b): optometry, ophthalmic dispensers, dentistry, registered professional nursing, physical therapy[,] or any branch of medicine or surgery.
 
. . .
 
(b)-(f) (No change.)
 
[page=825] 13:38-1.4      Optometric practice under assumed names and disclosure of practitioner names
 
(a) (No change.)
 
(b) A licensed optometrist who is also an officer of a professional service corporation which renders optometric service or sells ophthalmic materials shall:
 
1. [In all advertising placed by such corporation cause to be] Disclose conspicuously [disclosed] the name of at least one corporate officer who is licensed to practice optometry within this State in all advertising of the corporation;
 
2. [Cause] Display the names of all optometrists [who render optometric services in connection with such corporation to be displayed in a conspicuous place] conspicuously at the entrance [to the premises from which] where the optometric services are rendered[.]; and
 
3. File [with the Board of Optometrists by March 31 of each year a copy of that report required to be filed] a report pursuant to N.J.S.A. 14A:17-15 [showing the names and post office addresses of all shareholders, directors, and officers of such corporation. In addition thereto, the] with the Board of Optometrists by March 31 of each year. The report shall include the names and post office addresses of all members of the corporation and all licensed optometrists employed by the corporation.
 
(c) [It shall be the joint and several responsibility of all] All corporate officers holding licenses [to secure compliance] shall comply with this section.
 
(d)-(e) (No change.)
 
(f) A sole practitioner of optometry and all licensed optometrists offering services as partners in a partnership [shall cause the names of all licensees offering optometric services in connection with the sole proprietorship or the partnership to be displayed in a conspicuous place] shall display their names conspicuously at the entrance [to the premises from which optometric services are rendered. If the premises contain more than one office, the names of all optometrists who render optometric services in connection with such sole proprietorship or partnership, at that particular location, shall be visible to the public and displayed in a conspicuous place at the entrance of the outer office] of the facility.
 
SUBCHAPTER 2.    GENERAL RULES OF OPTOMETRIC PRACTICE
 
13:38-2.1   Minimum examination; record of conditions
 
(a)-(b) (No change.)
 
[(c) Where any form of contact tonometry is used in procedure (a)11 above, only the optometrist shall perform the procedure.]
 
(c) Any procedure involving contact with the surface of the eye shall be performed only by the optometrist.
 
(d)-(e) (No change.)
 
(f) Nothing contained in this chapter shall be construed to prohibit vision screening under the direct supervision of an optometrist for the purpose of determining the advisability of a complete optometric examination. For purposes of this section, "direct supervision" means the continuous physical presence of the optometrist who is in a supervisory status at the office location and who is available on-site for consultation, guidance[,] and instruction during the performance of any delegable procedures conducted by ancillary personnel.
 
13:38-2.3   Records of examinations and prescriptions; computerized records
 
(a) Licensees shall prepare and maintain contemporaneous, legible, permanent professional treatment and billing records [and shall also maintain records relating to billings] made to patients or third-party carriers for professional services. All treatment records, bills and claim forms shall accurately reflect the treatment of services rendered. Treatment and billing records shall be maintained for a period of not less than seven years from the date of the most recent entry.
 
(b)-(d) (No change.)
 
13:38-2.4   Requirements for issuing prescriptions and dispensing medications
 
(a) Written prescriptions shall be issued only on New Jersey Prescription Blanks (NJPB).
 
1. All prescription blanks shall be numbered consecutively and shall be printed on non-reproducible, non-erasable safety paper bearing the optometrist's license number and National Provider Identifier Number, if applicable;
 
2. All prescription blanks shall be secured from a vendor approved by the Division of Consumer Affairs in the Department of Law and Public Safety;
 
3. A record shall be maintained of the receipt of New Jersey Prescription Blanks; and
 
4. The Office of Drug Control in the Division of Consumer Affairs shall be notified as soon as possible but no later than 72 hours if a New Jersey Prescription Blank has been altered, lost or stolen from the optometrist's possession.
 
[(a)] (b) Every optometrist shall provide the following information on all prescriptions:
 
1.-4. (No change.)
 
Recodify existing (b)-(d) as (c)-(e) (No change in text.)
 
[(e) Written prescriptions shall be issued only on New Jersey Prescription Blanks (NJPB), secured from an approved vendor and subject to the required security mandates of the prescription blank program pursuant to N.J.S.A. 45:14-14 and N.J.A.C. 13:45A-27.]
 
(f)-(g) (No change.)
 
(h) Each prescription for a controlled dangerous substance shall be written on a separate NJPB.
 
1. (No change.)
 
2. An NJPB that contains a prescription for only one controlled dangerous substance and contains other [prescriptions(s) other than another controlled substance] medication(s) shall not be valid.
 
(i)-(j) (No change.)
 
(k) An optometrist may transmit a prescription to a pharmacist telephonically or electronically if the optometrist's Drug Enforcement Administration Registration Number and license number is provided.
 
SUBCHAPTER 5.    FEE SCHEDULE
 
13:38-5.1   Fee schedule
 
(a) The following fees shall be charged by the Board:
 
1.-2. (No change.)
 
3. Biennial renewal fee--active [certificate] license:                                            $ 250.00;
 
4. Biennial renewal fee--[non-active certificate] inactive license      $ 100.00;
 
5.-12. (No change.)
 
[13. Endorsement fee:                                                                                 $ 75.00;]
 
[14.] 13. (No change in text.)
 
[15.] 14. Letter of certification:
 
i. (No change.)
 
[ii. Continuing education credit:                                                               $ 50.00;]
 
Recodify existing 16. and 17. as 15. and 16. (No change in text.)
 
SUBCHAPTER 6.    RECORDS
 
13:38-6.1   Availability of records
 
(a)-(b) (No change.)
 
(c) An optometrist shall, free of charge, release the contact lens prescription directly to the patient upon completion of the contact lens fitting. An optometrist shall, free of charge, release a copy of a patient's contact lens prescription directly to a licensed ophthalmologist, optometrist, [or] ophthalmic dispenser or patient's authorized representative, upon either the [oral] verbal or written request of a patient. Upon the release of a contact lens prescription directly to a patient, an optometrist, shall provide the patient with a written warning, which shall include the following language in boldface, underlined and in capital letters:

 
[Lexis Note: Due to technical limitations, the language below is italicized, rather than underlined.]

 
WARNING: YOU SHOULD BE AWARE THAT YOUR EYES MAY CHANGE WITH TIME AND CONTACT LENSES THAT WERE INITIALLY FITTING PROPERLY MAY NO LONGER BE [page=826] APPROPRIATE AND MAY ENDANGER YOUR EYE HEALTH. YOU SHOULD SEE YOUR EYE DOCTOR PERIODICALLY TO ENSURE YOUR LENSES ARE FITTING PROPERLY.
 
1. (No change.)
 
(d) After the completion of a patient's comprehensive eye examination, and upon the patient's request, a copy of the patient's prescription for eyeglasses shall be given, free of charge, to the patient, the patient's authorized representative or to another optometrist, ophthalmologist or ophthalmic dispenser acting on the patient's behalf.
 
(e) (No change.)
 
SUBCHAPTER 7.    CONTINUING PROFESSIONAL OPTOMETRIC EDUCATION
 
13:38-7.2   [Nonactive registration] Inactive license renewal and reactivation of license; continuing education requirement
 
(a) Any licensee who has [a nonactive certificate] an inactive license shall be exempt from the continuing professional optometric education requirements set forth in this subchapter.
 
(b) Any licensee seeking to reactivate [a nonactive certificate] an inactive license shall provide the Board with evidence of having maintained proficiency by completing the professional optometric education requirements set forth at N.J.A.C. 13:38-7.3(a) during the two calendar years immediately preceding the application for reactivation.

   
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