PART 14. TEXAS OPTOMETRY BOARD
CHAPTER 279. INTERPRETATIONS
The Texas Optometry Board proposes amendments to 22 TAC Title 14 Chapter 279, §279.1 - Contact Lens Examination.
The rules in the Chapter 279 were reviewed as a result of the Board's general rule review under Texas Government Code §2001.039. Notice of the review was published in the June 10, 2022, issue of the Texas Register (47 TexReg 3487). No comments were received regarding the Board's notice of review.
The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.1 as currently in effect are necessary to clarify the statute.
Overview and Explanation of the Proposed Rule. This section of the Board's rules clarifies Texas Optometry Act §351.353 which requires ten specific findings to be made and recorded during an initial examination of a patient in which an ophthalmic contact lens prescription is to be made. As outlined in statute, these ten findings are to ensure the adequate examination of a patient. The rule does not set guidance for medical or routine refraction visits between a patient and an optometrist - only the initial visit for a prescription for contacts. The rule as currently written sets out that three of the ten findings during an initial visit must be performed by the licensed optometrist while the other seven findings may be delegated to an assistant with oversight by the licensed optometrist. Additionally, Texas Optometry Act §351.453 states "an optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes of the person for whom the prescription is made."
On November 3, 2023, the Board proposed clarifications to the rules as follows:
- The proposal will clarify that the optometrist or therapeutic optometrist is to "examine in-person" instead of "personally make" three of the ten findings during an initial visit for a contact lens prescription. The other seven required findings may continue to be delegated to an assistant.
- It states that the findings must be made unless prohibited by the patient's unique condition instead of "if possible." It requires the optometrist or therapeutic optometrist to personally notate why it is not possible to record the required findings. This language is affirmed in a recent decision from the State Office of Administrative Hearings.
- It clarifies that for discipline purposes, the charges must state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule.
- Finally, the amendment makes non-substantive capitalization changes to ensure consistency across the Board's rules.
Government Growth Impact Statement. The rule clarifies the Board's long-standing interpretation of statute (see Tex. Occ. Code §§351.353 and 351.453) to ensure the public health is protected. Therefore, for the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule will have no effect on government growth. The proposed rule does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to this agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.
Small Business, Micro-Business, and Rural Community Impact Statement. Ms. McCoy has determined for the first five-year period the proposed rule is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities as the amendment is a clarification of the Board's long-standing interpretation of statute and does not positively or adversely impact the state's economy.
Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. The proposed rule clarifies the Board's long-standing interpretation of statute (see Tex. Occ. Code §§351.353 and 351.453) to ensure the public health is protected. Therefore, Ms. McCoy has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities as the amendment is a clarification of the Board's long-standing interpretation of statute and does not positively or adversely impact the state's economy. Thus, the Board is not required to prepare a regulatory flexibility analysis pursuant to §2006.002 of the Tex. Gov't Code.
Takings Impact Assessment. Ms. McCoy has determined that there are no private real property interests affected by the proposed rule. Thus, the Executive Council is not required to prepare a takings impact assessment pursuant to §2007.043 of the Tex. Gov't Code.
Local Employment Impact Statement. Ms. McCoy has determined that the proposed rule will have no impact on local employment or a local economy as the amendment is a clarification of the Board's long-standing interpretation of statute. Thus, the Board is not required to prepare a local employment impact statement pursuant to §2001.024 of the Tex. Gov't Code.
Public Benefit. Ms. McCoy has determined for the first five-year period the proposed rule is in effect there will be a benefit to the general public because the proposed rule will provide greater clarity, consistency, and efficiency in how licensed optometrists and therapeutic optometrists fully comply with §351.353 of the Act during an initial patient visit for a contact lens prescription. The Board determined it was necessary to update the rule to clarify the existing Board interpretation that personally means the three tests during the initial patient visit are done in person by the optometrist. According to the Board, this interpretation furthers its mission to protect the public health and safety by ensuring that the eyes of Texas patients during an initial visit are being examined by licensed optometrists and not by unlicensed staff.
Fiscal Note. Janice McCoy, Executive Director of the Board, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule. Additionally, Ms. McCoy has determined that enforcing or administering the rule does not have foreseeable implications relating to the costs or revenues of state or local government.
Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.
Even without the clarifying amendment, long-standing Board actions and policy assumes compliance with Tex. Occ. Code §351.353 that all initial patient visits must contain the ten findings and with Tex. Occ. Code §351.453 that states "An optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes of the person for whom the prescription is made."
PUBLIC COMMENTS: Comments on the amended rule may be submitted electronically to: janice.mccoy@tob.texas.gov or in writing to Janice McCoy, Executive Director, Texas Optometry Board, 1801 N. Congress, Suite 9.300, Austin, Texas 78701. The deadline for furnishing comments is thirty days after publication in the Texas Register. The Board requests that if you have previously submitted comments on similar rules that have been withdrawn to resubmit your comments.
Statutory Authority. The Board proposes this rule pursuant to the authority found in §351.151 of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and implement Chapter 351 of the Tex. Occ. Code.
The Board also proposes this rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.
Lastly, the Board proposes this rule pursuant to Texas Occupations Code §351.353 and §351.453.
No other sections are affected by the amendments.
§279.1.Contact Lens Examination.
(a) The optometrist or therapeutic optometrist shall, in the initial examination of the patient for whom contact lenses are prescribed:
(1) Examine in-person [Personally make]
and record, unless prohibited by the patient's unique condition [if possible], the following findings of the conditions of the
patient as required by §351.353 of the Act:
(A) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular microscope;
(B) internal ophthalmoscopic examination (media, fundus, etc.), using an ophthalmoscope or biomicroscope with fundus condensing lenses; videos and photographs may be used only for documentation and consultation purposes but do not fulfill the internal ophthalmoscopic examination requirement; and
(C) subjective findings: [,]
far point and near point;
(2) Either personally make and record or authorize an assistant present in the same office with the optometrist or therapeutic optometrist to make and record the following findings required by §351.353 of the Act. The authorization for assistants to make and record the following findings does not relieve the optometrist or therapeutic optometrist of professional responsibility for the proper examination and recording of each finding required by §351.353 of the Act:
(A) case history (ocular, physical, occupational, and other pertinent information);
(B) visual acuity;
(C) static retinoscopy O.D., O.S., or autorefractor;
(D) assessment of binocular function;
(E) amplitude or range of accommodation;
(F) tonometry; and
(G) angle of vision: [,] to right
and to left; [.]
(3) The optometrist or therapeutic optometrist
shall personally [Personally] notate in the patient's
record the reasons why it is not possible to make and record the findings
required in subsection (a) of this section;
(4) When a follow-up visit is medically indicated, schedule the follow-up visit within 30 days of the contact lens fitting, and inform the patient on the initial visit regarding the necessity for the follow-up care; and
(5) Personally or authorize an assistant to instruct the patient in the proper care of lenses.
(b) The optometrist or therapeutic optometrist and assistants shall observe proper hygiene in the handling and dispensing of the contact lenses and in the conduct of the examination. Proper hygiene includes sanitary office conditions, running water in the office where contact lenses are dispensed, and proper sterilization of diagnostic lenses and instruments.
(c) The fitting of contact lenses may be performed only by a licensed physician, optometrist, or therapeutic optometrist. Ophthalmic dispensers may make mechanical adjustments to contact lenses and dispense contact lenses only after receipt of a fully written contact lens prescription from a licensed optometrist, therapeutic optometrist, or a licensed physician. An ophthalmic dispenser shall make no measurement of the eye or the cornea or evaluate the physical fit of the contact lenses, by any means whatever, subject solely and only to the exception contained in the §351.005 of the Act.
(d) The willful or repeated failure or refusal of an
optometrist or therapeutic optometrist to comply with any of the requirements
in the Act, §351.353 and §351.359, shall be considered by
the Board [board] to constitute prima facie
evidence that the licensee is unfit or incompetent by reason of negligence
within the meaning of the Act, §351.501(a)(2), and shall be sufficient
ground for the filing of charges to cancel, revoke, or suspend the
license. The charges shall state the specific instances in which it
is alleged that the optometrist or therapeutic optometrist did
not comply with the rule [was not complied with].
After the Board [board] has produced evidence
of the omission of a finding required by §351.353, the burden
shifts to the licensee to establish that the making and recording
of the findings was not possible.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 18, 2023.
TRD-202304877
Janice McCoy
Executive Director
Texas Optometry Board
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 305-8500
The Texas Optometry Board proposes amendments to 22 TAC Title 14 Chapter 279, §279.3 - Spectacle Examination.
The rules in the Chapter 279 were reviewed as a result of the Board's general rule review under Texas Government Code §2001.039. Notice of the review was published in the June 10, 2022, issue of the Texas Register (47 TexReg 3487). No comments were received regarding the Board's notice of review.
The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.3 as currently in effect are necessary to clarify the statute.
Overview and Explanation of the Proposed Rule. This section of the Board's rules clarifies Texas Optometry Act §351.353 which requires ten specific findings to be made and recorded during an initial examination of a patient in which an ophthalmic spectacle prescription is to be made. As outlined in statute, these ten findings are to ensure the adequate examination of a patient. The rule does not set guidance for medical or routine refraction visits between a patient and an optometrist - only the initial visit for a prescription for spectacles (glasses). The rule as currently written sets out that three of the ten findings during an initial visit must be performed by the licensed optometrist while the other seven findings may be delegated to an assistant with oversight by the licensed optometrist. Additionally, Texas Optometry Act §351.453 states "an optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes of the person for whom the prescription is made."
On November 3, 2023, the Board proposed changes to the rules as follows:
- The proposal will clarify that the optometrist or therapeutic optometrist is to "examine in-person" instead of "personally make" three of the ten findings during an initial visit for a spectacle prescription. The other seven required findings may continue to be delegated to an assistant.
- It states that the findings must be made unless prohibited by the patient's unique condition instead of "if possible." It requires the optometrist or therapeutic optometrist to personally notate why it is not possible to record the required findings. This language is affirmed in a recent decision from the State Office of Administrative Hearings.
- It clarifies that for discipline purposes, the charges must state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule.
- Finally, the amendment makes non-substantive capitalization changes to ensure consistency across the Board's rules.
Government Growth Impact Statement. The rule clarifies the Board's long-standing interpretation of statute (see Tex. Occ. Code §§351.353 and 351.453) to ensure the public health is protected. Therefore, for the first five-year period the proposed rule is in effect, the Board estimates that the proposed rule will have no effect on government growth. The proposed rule does not create or eliminate a government program; it does not require the creation or elimination of employee positions; it does not require the increase or decrease in future legislative appropriations to this agency; it does not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand an existing regulation; it does not increase or decrease the number of individuals subject to the rule's applicability; and it does not positively or adversely affect the state's economy.
Small Business, Micro-Business, and Rural Community Impact Statement. Ms. McCoy has determined for the first five-year period the proposed rule is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities as the amendment is a clarification of the Board's long-standing interpretation of statute and does not positively or adversely impact the state's economy.
Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. The proposed rule clarifies the Board's long-standing interpretation of statute (see Tex. Occ. Code §§351.353 and 351.453) to ensure the public health is protected. Therefore, Ms. McCoy has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities as the amendment is a clarification of the Board's long-standing interpretation of statute and does not positively or adversely impact the state's economy. Thus, the Board is not required to prepare a regulatory flexibility analysis pursuant to §2006.002 of the Tex. Gov't Code.
Takings Impact Assessment. Ms. McCoy has determined that there are no private real property interests affected by the proposed rule. Thus, the Executive Council is not required to prepare a takings impact assessment pursuant to §2007.043 of the Tex. Gov't Code.
Local Employment Impact Statement. Ms. McCoy has determined that the proposed rule will have no impact on local employment or a local economy as the amendment is a clarification of the Board's long-standing interpretation of statute. Thus, the Board is not required to prepare a local employment impact statement pursuant to §2001.024 of the Tex. Gov't Code.
Public Benefit. Ms. McCoy has determined for the first five-year period the proposed rule is in effect there will be a benefit to the general public because the proposed rule will provide greater clarity, consistency, and efficiency in how licensed optometrists and therapeutic optometrists fully comply with §351.353 of the Act during an initial patient visit for a spectacles (glasses) prescription. The Board determined it was necessary to update the rule to clarify the existing Board interpretation that personally means the three tests during the initial patient visit are done in person by the optometrist. According to the Board, this interpretation furthers its mission to protect the public health and safety by ensuring that the eyes of Texas patients during an initial visit are being examined by licensed optometrists and not by unlicensed staff.
Fiscal Note. Janice McCoy, Executive Director of the Board, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments as a result of enforcing or administering the rule. Additionally, Ms. McCoy has determined that enforcing or administering the rule does not have foreseeable implications relating to the costs or revenues of state or local government.
Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by the Board on licensees is not expected to increase.
Even without the clarifying amendment, long-standing Board actions and policy assumes compliance with Tex. Occ. Code §351.353 that all initial patient visits must contain the ten findings and with Tex. Occ. Code §351.453 that states "An optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes of the person for whom the prescription is made."
PUBLIC COMMENTS: Comments on the amended rule may be submitted electronically to: janice.mccoy@tob.texas.gov or in writing to Janice McCoy, Executive Director, Texas Optometry Board, 1801 N. Congress, Suite 9.300, Austin, Texas 78701. The deadline for furnishing comments is thirty days after publication in the Texas Register. The Board requests that if you have previously submitted comments on similar rules that have been withdrawn to resubmit your comments.
Statutory Authority. The Board proposes this rule pursuant to the authority found in §351.151 of the Tex. Occ. Code which vests the Board with the authority to adopt rules necessary to perform its duties and implement Chapter 351 of the Tex. Occ. Code.
The Board also proposes this rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.
Lastly, the Board proposes this rule pursuant to Texas Occupations Code §351.353 and §351.453.
No other sections are affected by the amendments.
§279.3.Spectacle Examination.
(a) The optometrist or therapeutic optometrist shall, in the initial examination of the patient for whom ophthalmic lenses are prescribed:
(1) Examine in-person [Personally make]
and record, unless prohibited by the patient's unique condition [if possible], the following findings of the conditions of the
patient as required by §351.353 of the Act:
(A) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular microscope;
(B) internal ophthalmoscopic examination (media, fundus, etc.), using an ophthalmoscope or biomicroscope with fundus condensing lenses; videos and photographs may be used only for documentation and consultation purposes but do not fulfill the internal ophthalmoscopic examination requirement; and
(C) subjective findings: [,]
far point and near point; [.]
(2) Either personally make and record or authorize an assistant present in the same office with the optometrist or therapeutic optometrist to make and record the following findings required by §351.353 of the Act. The authorization for assistants to make and record the following findings does not relieve the optometrist or therapeutic optometrist of professional responsibility for the proper examination and recording of each finding required by §351.353 of the Act:
(A) case history (ocular, physical, occupational, and other pertinent information);
(B) visual acuity;
(C) static retinoscopy O.D., O.S., or autorefractor;
(D) assessment of binocular function;
(E) amplitude or range of accommodation;
(F) tonometry; and
(G) angle of vision: [,] to right
and to left; and [.]
(3) The optometrist or therapeutic optometrist
shall personally [Personally] notate in the patient's
record the reasons why it is not possible to make and record the findings
required in this section.
(b) The willful or repeated failure or refusal of an
optometrist or therapeutic optometrist to comply with any of the requirements
in the Act, §351.353 and §351.359, shall be considered by
the Board [board] to constitute prima facie
evidence that the licensee is unfit or incompetent by reason of negligence
within the meaning of the Act, §351.501(a)(2), and shall be sufficient
ground for the filing of charges to cancel, revoke, or suspend the
license. The charges shall state the specific instances in which it
is alleged that optometrist or therapeutic optometrist did not
comply with the rule [was not complied with]. After
the Board [board] has produced evidence of the
omission of a finding required by §351.353, the burden shifts
to the licensee to establish that the making and recording of the
findings was not possible.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 18, 2023.
TRD-202304878
Janice McCoy
Executive Director
Texas Optometry Board
Earliest possible date of adoption: February 4, 2024
For further information, please call: (512) 305-8500