Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS STATE BOARD OF OPTOMETRY [49 PA. CODE CH. 23] Continuing Education, Fees, Certification to Treat Glaucoma [34 Pa.B. 4147] The State Board of Optometry (Board) amends §§ 23.82, 23.86 and 23.91 (relating to continuing education requirements; sources of continuing education hours; and fees) and adds § 23.205 (relating to application procedure) to read as set forth in Annex A.
Response to Comments
Proposed rulemaking was published at 33 Pa.B. 4464 (September 6, 2003). Following publication, the Board received a comment from the Pennsylvania Academy of Ophthalmology (PAO). On September 30, 2003, the House Professional Licensure Committee (HPLC) voted to take no formal action until final rulemaking. On November 5, 2003, the Independent Regulatory Review Commission (IRRC) submitted comments to the Board.
The PAO noted that section 4.2(b) of the Optometric Practice and Licensure Act (act) (63 P. S. § 244.4b(b)) requires optometrists certified to treat glaucoma to maintain liability insurance of a minimum of $1 million per occurrence and $3 million per annual aggregate. The PAO noted that the Board did not include in the proposed rulemaking the insurance requirements for optometrists certified to treat glaucoma. Section 3(a)(2.5)(i) of the act (63 P. S. § 244.3(a)(2.5)(i)) requires all optometrists to have liability insurance in the minimum amount of $200,000 per occurrence and $600,000 per annual aggregate. Section 4.2(b) of the act requires optometrists certified to treat glaucoma to have the higher minimum liability coverage.
IRRC's comment also related to the insurance coverage requirement. IRRC asked the Board why the proposed rulemaking did not establish a procedure for optometrists applying for certification to treat glaucoma to demonstrate that they had obtained the required professional liability insurance. The Board indicated that the proposed rulemaking did not establish a procedure because the Board implementing the act of October 30, 1996 (P. L. 721, No. 130) (Act 130) has required optometrists to verify their compliance with the insurance requirements. In its written comments, IRRC suggested: ''To provide sufficient notice to prospective applicants, the final-form regulation should include the greater insurance requirements established by the Act.''
If the Board were to place the specific statutory requirements in the regulations, as suggested by IRRC, the Board would have to amend its regulations whenever the statutory requirements change. To repeat the mandatory insurance requirement in regulation would be unnecessary and redundant, and could lead to confusion if the statutory minimum coverage changes.
Since the amendments to the act by Act 130, every applicant for licensure as an optometrist is required to verify, under penalty of prosecution for making unsworn falsification to authorities (18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities)), that the applicant has obtained and will maintain the required liability insurance coverage, through the following statement on the application for licensure:
By my signature below, I verify that I have obtained and will obtain the minimum of $200,000/occurrence and $600,000/annual aggregate professional liability insurance. I further certify that I will notify the Board within 30 days of my failure to be covered by the required amount of insurance.
Similarly, consistent with the act of December 16, 2002 (P. L. 1950, No. 225), to be granted certification to treat glaucoma, every applicant must verify that the applicant has obtained and will maintain the required liability insurance coverage through the following statement:
By my signature below, I verify that I have obtained and will obtain the minimum of $1,000,000/occurrence and $3,000,000/annual aggregate professional liability insurance required to treat glaucoma. I further certify that I will notify the Board within 30 days of my failure to be covered by the required amount of insurance.
In addition, every optometrist must reverify, at biennial renewal, that he has maintained and will maintain the required liability coverage. The biennial renewal application for optometrists contains the following statement:
____ I have the following liability insurance policy with the minimum of $200,000/occurrence and $600,000/annual aggregate:
Insurance co. name __________
Policy number __________
Expiration date __ / __ / __
The biennial renewal application for certification to treat glaucoma will contain the following statement:
____ I have the following liability insurance policy with the minimum of $1,000,000/occurrence and $3,000,000/annual aggregate:
Insurance co. name __________
Policy number __________
Expiration date __ / __ / __
The POA suggested that the Board ''amend its regulations to establish a more formal process for optometrists to show satisfactory proof of required liability insurance that is at least as stringent as that which is outlined by the State Board of Medicine for its physicians.'' In addition, the POA recommended that an optometrist should be required to demonstrate compliance with the statutory insurance requirements prior to the Board granting the optometrist therapeutic certification or certification to treat glaucoma. As previously explained, an optometrist is already required to demonstrate compliance with the insurance requirements prior to being granted therapeutic certification or certification to treat glaucoma. The process for verification of insurance coverage required of optometrists is already more stringent than that required of physicians.
The Board notes that its rulemaking is similar to that of the State Board of Medicine's regulations, which did, at one time, include the statutorily mandated amounts of liability insurance. The State Board of Medicine amended its regulations so as not to unnecessarily duplicate provisions of the Medical Practice Act and Health Care Services Malpractice Act (now the Medical Care Availability and Reduction of Error (MCARE) Act (40 P. S. §§ 1303.101--1303.5108)) and to avoid the expense and confusion of periodically updating its regulations. See 30 Pa.B. 2474 (May 20, 2000).
The Board also added to its list of preapproved continuing education providers the College of Optometrists in Vision Development, the Council on Optometric Practitioner Education (COPE), vision and eye-related courses offered by accredited medical colleges and vision and eye-related courses offered by the American Medical Association and its state affiliates. These providers consistently offer high-quality continuing education relevant to the practice of optometry. COPE-approved courses are approved by every state board of optometry.
Statutory Authority
Section 3(b)(12) of the act authorizes the Board to approve continuing education. Section 3(b)(14) of the act authorizes the Board to ''promulgate all rules and regulations necessary to carry out the purposes of this act.'' Section 4.2 of the act authorizes the Board to certify licensees to treat glaucoma.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking should have only minimal fiscal impact on licensees who will be required to pay a $25 application fee to obtain certification to treat glaucoma. There is minimal fiscal impact on the Board associated with amending and printing application forms and biennial renewal forms, notifying licensees of the changes and processing applications. There is no fiscal impact on the private sector, the general public or any political subdivisions. The final-form rulemaking will create only minimal additional paperwork for the Board in processing applications to treat glaucoma and will not create additional paperwork for the private sector.
Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 26, 2003, the Department submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 4464, to IRRC and the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 9, 2004, the final-form rulemaking was approved by the HPLC. On July 14, 2004, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2004, and approved the final-form rulemaking.
Additional Information
Additional information regarding this final-form rulemaking may be obtained from Deborah Smith, Board Administrator, State Board of Optometry, P. O. Box 2649, Harrisburg, PA, 17105.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The regulation of the Board is necessary and appropriate for the administration of the act.
(4) The amendments to this final-form rulemaking do not enlarge the original purpose of the proposed rulemaking published at 33 Pa.B. 4464.
Order
The Board therefore orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 23, are amended by amending §§ 23.82 and 23.91 to read as set forth at 33 Pa.B. 4464 and by amending § 23.86 and by adding § 23.205 to read as set forth in Annex A.
(b) The Board shall submit this order, 33 Pa.B. 4464 and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall certify this order, 33 Pa.B. 4464 and Annex A and shall deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
STEVEN J. RETO, O.D.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 4082 (July 31, 2004).)
Fiscal Note: Fiscal Note 16A-5211 remains valid for the final adoption of the subject regulations.
Annex A TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS PART I. DEPARTMENT OF STATE Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS CHAPTER 23. STATE BOARD OF OPTOMETRY CONTINUING EDUCATION § 23.86. Sources of continuing education hours.
(a) In addition to another provider which wishes to secure approval from the Board, the Board finds that the following providers have currently met the standards for provider approval for all acceptable courses of continuing education; accordingly, the following providers have program approval in all allowable areas for continuing education: the American Optometric Association, the Pennsylvania Optometric Association, all Board-accredited schools and colleges of optometry, the College of Optometrists in Vision Development (COVD), the Council on Optometric Practitioner Education (COPE), eye and vision-related continuing education courses offered by accredited medical colleges, as defined in section 2 of the Medical Practice Act of 1985 (63 P. S. § 422.2), the Optometric Extension Program, the American Academy of Optometry and its state affiliates, the American Academy of Ophthalmology and its state affiliates, and eye and vision-related courses offered by the American Medical Association and its state affiliates. The approval given to these providers is subject to reevaluation. A recision of provider or program approval will be made only in accordance with 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
(b) Courses which are provided by providers not indicated in subsection (a) will count as continuing education hours provided that the provider and subject matter are approved by the Board prior to implementation of the course. In addition, credits may be obtained on an individual basis for attendance at programs which have not had prior approval of the Board so long as the individual submits proper application for program approval and supporting documentation and verification of attendance; however, in this instance, the licensee cannot guarantee himself proper credit from the Board unless the Board finds such course to be in compliance with the subject matter and the provider to be qualified.
(c) It shall be permissible to attend clinical conferences, clinical rounds, or training under a preceptor through clinical hospitals, medical centers, schools, and colleges which are acceptable at the rate of one continuing education hour for every 50 minutes.
(d) Credit hours will be given for correspondence programs, taped study programs, and other individual study programs at the rate of 1 continuing education hour for every 50 minutes. However, proper credit being given for such program is dependent upon the licensee proving, to the satisfaction of the Board, that the program meets the provisions of § 23.85 (relating to standards for providers).
(e) Credit hours will be credited for service as a teacher, preceptor, lecturer, or speaker and for publications, articles, books, and research relating to the practice of optometry. Application should be made prior to the service to assure that approval will be given by the Board to the program. Otherwise, the licensee will be required to secure retroactive approval as set forth in subsection (b).
(f) Each licensee is required to fulfill the continuing education hours using the following allocations:
(1) Subsections (a) and (b) count for a minimum of 50%. Continuing education hours may be completed from subsections (a) and (b).
(2) Subsections (c), (d) or (e) may be used up to a maximum of 25% of the required biennial credit hours. In no case may the combined total from these three subsections exceed 50% of the total biennial requirement of 24 hours.
CERTIFICATION TO TREAT GLAUCOMA § 23.205. Application procedure.
An applicant for certification to treat glaucoma under section 4.2 of the act (63 P. S. § 244.4b) shall submit to the Board a completed application obtained from the Board together with the certification fee required by § 23.91 (relating to fees), and one of the following.
(1) A signed verification attesting that the licensee obtained therapeutic certification by passing the licensure examination to practice optometry. The examination shall have included the prescription and administration of pharmaceutical agents for therapeutic purposes (the examination required for therapeutic certification under section 4.1(a)(1) of the act (63 P. S. § 244.4a(a)(1)). The verification shall state the month and year the licensee passed this examination.
(2) A signed verification attesting that the licensee obtained therapeutic certification by passing an examination on the prescription and administration of pharmaceutical agents for therapeutic purposes (the examination required for therapeutic certification under section 4.1(a)(2) of the act) and certificates of attendance from Board-approved continuing education courses demonstrating at least 18 hours in glaucoma, completed since December 19, 2002.
[Pa.B. Doc. No. 04-1440. Filed for public inspection August 6, 2004, 9:00 a.m.]
