Bill Text: PA HB516 | 2011-2012 | Regular Session | Introduced

---

Bill Title: Regulating the licensure and practice of ophthalmic dispensing; establishing the State Board of Ophthalmic Dispensers; providing for its powers and duties; and providing penalties.

Spectrum: Moderate Partisan Bill (Democrat 5-1)

Status: (Introduced - Dead) 2011-02-08 - Referred to PROFESSIONAL LICENSURE [HB516 Detail]

Download: Pennsylvania-2011-HB516-Introduced.html

---

PRINTER'S NO. 483
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 516 Session of2011
INTRODUCED BY HARKINS, CONKLIN, D. COSTA, DeLUCA, MURT, M. O'BRIEN AND JOSEPHS, FEBRUARY 8, 2011
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, FEBRUARY 8, 2011
AN ACT
Regulating the licensure and practice of ophthalmic dispensing;
establishing the State Board of Ophthalmic Dispensers;
providing for its powers and duties; and providing penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Ophthalmic
Dispensing Practice and Licensure Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Advisory Committee on Continuing Professional Education" or
"advisory committee." An advisory committee established under
section 4 to make recommendations to the State Board of
Ophthalmic Dispensers relating to continuing professional
education.
"Board." The State Board of Ophthalmic Dispensers.
"Fitting of contact lenses." A procedure in which a
prescribed contact lens is placed upon the eye of a patient and
the lens-cornea relationship is evaluated with the use of a
biomicroscope or slit-lamp.
"Ophthalmic dispensing." The preparation and dispensing of
lenses, spectacles, eyeglasses or appurtenances thereto to the
intended wearers thereof on written prescriptions from
physicians, osteopaths or optometrists duly licensed to practice
their profession, and in accordance with such prescriptions,
interprets, measures, adapts, fits and adjusts such lenses,
spectacles, eyeglasses or appurtenances thereto to the human
face for the aid or correction of visual or ocular anomalies of
the human eye. The services and appliances relating to
ophthalmic dispensing shall be dispensed, furnished or supplied
to the intended wearer or user thereof only upon written
prescription issued by a physician, osteopath or optometrist;
but duplications, replacements, reproductions or repetitions may
be done without prescriptions, in which event any such act shall
be construed to be ophthalmic dispensing the same as if
performed on the basis of an original written prescription.
Section 3. State Board of Ophthalmic Dispensers.
(a) Establishment.--The State Board of Ophthalmic Dispensers
is established and shall consist of 13 members, all of whom
shall be residents of this Commonwealth. Eight members shall be
medical physicians or osteopaths experienced in the treatment
and examination of the human eye, who are licensed to practice
in this Commonwealth and who have been practicing in this
Commonwealth for at least the five-year period immediately
preceding their appointment. Three members shall be persons
representing the public at large, one member shall be the
20110HB0516PN0483 - 2 -
Commissioner of Professional and Occupational Affairs and one
member shall be the Director of the Bureau of Consumer
Protection in the Office of Attorney General or the director's
designee. The professional and public members of the board shall
be appointed by the Governor with the advice and consent of a
majority of the members elected to the Senate.
(b) Terms of office.--All professional and public members
shall serve for terms of four years. No member shall be eligible
for appointment to serve more than two consecutive terms. A
member may continue to serve for a period not to exceed six
months following the expiration of the member's term if a
successor has not been duly appointed and qualified according to
law.
(c) Quorum.--A majority of the members of the board serving
in accordance with law shall constitute a quorum. Except for
temporary and automatic suspensions under section 12, a member
may not be counted as part of a quorum or vote on any issue
unless the member is physically in attendance at the meeting.
The board shall select, from among its membership, a
chairperson, a vice chairperson and a secretary.
(d) Expenses of board members.--Each public and professional
member of the board shall be paid reasonable traveling, hotel
and other necessary expenses incurred in the performance of the
member's duties in accordance with Commonwealth regulations and
per diem compensation at the rate of $60 for each day of actual
service while on board business.
(e) Effect of absences.--A member who fails to attend three
consecutive meetings shall forfeit the member's seat unless the
Commissioner of Professional and Occupational Affairs, upon
written request from the member, finds that the member should be
20110HB0516PN0483 - 3 -
excused from a meeting because of illness or the death of an
immediate family member.
(f) Appointment of successors.--In the event that a member
of the board dies, resigns or otherwise becomes disqualified
during a term of office, a successor shall be appointed in the
same manner and with the same qualifications as set forth in
subsection (a) and shall hold office for the unexpired term.
(g) Effect of absence at mandatory seminars.--A public
member who fails to attend two consecutive statutorily mandated
seminars in accordance with section 813(e) of the act of April
9, 1929 (P.L.177, No.175), known as The Administrative Code of
1929, shall forfeit his or her seat unless the Commissioner of
Professional and Occupational Affairs, upon written request from
the public member, finds that the public member should be
excused from a meeting because of illness or the death of a
family member.
Section 4. Powers and duties of board.
(a) General rule.--The board shall have the following
duties:
(1) To meet at least four times annually at a place
within this Commonwealth determined by the board for the
transaction of its business.
(2) To prescribe the subjects to be tested, authorize
written and practical portions of the examination and
contract with a professional testing organization for
examinations of qualified applicants for licensure at least
twice annually at such times and places as designated by the
board. All written, oral and practical examinations shall be
prepared and administered by a qualified and approved
professional testing organization in accordance with section
20110HB0516PN0483 - 4 -
812.1 of the act of April 9, 1929 (P.L.177, No.175), known as
The Administrative Code of 1929.
(3) To require every licensee to insure liability by
purchasing and maintaining professional liability insurance
coverage in accordance with the following provisions:
(i) Beginning with the first license renewal period
at least two years after the effective date of this
paragraph or upon first making application for licensure,
whichever occurs earlier, a licensee shall obtain and
maintain, to the satisfaction of the board, professional
liability insurance coverage in the minimum amount of
$200,000 per occurrence and $600,000 per annual
aggregate. The professional liability insurance coverage
shall remain in effect as long as the licensee maintains
a current license.
(ii) A licensee shall notify the board within 30
days of the licensee's failure to be covered by the
required insurance. Failure to notify the board shall be
actionable under section 9 or 11. The license to practice
shall automatically be suspended upon failure to be
covered by the required insurance and shall not be
restored until submission to the board of satisfactory
evidence that the licensee has the required professional
liability insurance coverage.
(iii) The board shall accept from licensees as
satisfactory evidence of insurance coverage, under this
paragraph, proof of any or all of the following: self-
insurance, personally purchased professional liability
insurance, professional liability insurance coverage
provided by the licensee's employer or any similar type
20110HB0516PN0483 - 5 -
of coverage.
(iv) The board, after consultation with the
Insurance Commissioner, shall establish standards and
procedures by regulation for self-insurance under this
paragraph.
(4) To record all licenses in its office.
(5) To grant a license to practice ophthalmic dispensing
in this Commonwealth to any applicant for licensure who has
passed the prescribed examination and otherwise complied with
the provisions of this act.
(6) To appoint an Advisory Committee on Continuing
Professional Education which shall consist of consultants who
are ophthalmic dispensing educators and ophthalmic dispensing
practitioners to serve with the Deputy Secretary for Higher
Education or the deputy secretary's designee.
(7) To submit annually to the Department of State an
estimate of the financial requirements of the board for its
administrative, investigative, legal and miscellaneous
expenses.
(8) To submit annually to the Appropriations Committee
of the Senate and the Appropriations Committee of the House
of Representatives, 15 days after the Governor has submitted
the annual budget to the General Assembly, a copy of the
budget request for the upcoming fiscal year which the board
previously submitted to the Department of State.
(9) To submit annually to the Consumer Protection and
Professional Licensure Committee of the Senate and the
Professional Licensure Committee of the House of
Representatives a report containing a description of the
types of complaints received, status of cases, board action
20110HB0516PN0483 - 6 -
which has been taken and the length of time from the initial
complaint to final board resolution.
(10) To require all ophthalmic dispensers to provide to
their patients information on the existence, powers,
functions and duties of the board, including the procedure
for bringing a complaint to the board. If such information is
available through a publication of the Department of State,
providing a copy of such publication to the patient may
satisfy the requirements of this paragraph.
(b) Additional powers.--The board shall have the following
powers:
(1) To grant, refuse, revoke, limit or suspend any
license to practice ophthalmic dispensing in this
Commonwealth under the provisions of this act.
(2) To conduct hearings, investigations and discovery
proceedings; to administer oaths or affirmations to
witnesses, take testimony, issue subpoenas to compel
attendance of witnesses or the production of records; and to
exercise all powers granted by law or regulation in
accordance with the general rules of administrative practice
and procedure. The board or its designated hearing examiner
may exercise the powers enumerated in this paragraph with
regard to both licensed ophthalmic dispensers and persons
practicing ophthalmic dispensing without a license.
(3) To obtain injunctions from a court of competent
jurisdiction upon petition of the Commissioner of
Professional and Occupational Affairs or the board. In any
proceeding under this section, it shall not be necessary to
show that any person is individually injured by the actions
complained of. If the court finds that the respondent has
20110HB0516PN0483 - 7 -
violated this subsection, it shall enjoin the person from so
practicing or holding himself out as an ophthalmic dispenser
until the person has been duly licensed or certified.
Procedure in such cases shall be the same as in any other
injunctive suit.
(4) To recommend to the Commissioner of Professional and
Occupational Affairs such staff as is necessary to carry out
the provisions of this act.
(5) To incur expenses, retain consultants, appoint
committees from its own membership and appoint advisory
committees which may include nonboard members.
(6) To compensate at a rate fixed by the board
consultants and nonboard members of advisory committees.
(7) To authorize the payment of special reimbursements
for the secretary of the board or any other designated member
of the board for rendering special services authorized by the
board.
(8) To use qualified board hearing examiners to conduct
hearings and prepare adjudications for final review and
approval by the board, including disciplinary sanctions.
Nothing shall prohibit the board or a designated board member
from conducting such hearings.
(9) To establish and administer a records system which
records shall be open to public inspection during the regular
business hours of the board.
(10) To hold meetings, other than required by subsection
(a), for the conduct of its business upon giving public
notice of such meetings.
(11) In consultation with a national accrediting body
recognized by the United States Department of Education and
20110HB0516PN0483 - 8 -
the appropriate regional accrediting body recognized by the
United States Department of Education, to approve those
ophthalmic dispensing educational institutions in the United
States and Canada which are accredited for the purposes of
this act.
(12) In consultation with the advisory committee, to
establish and approve by rule and regulation courses of
continuing professional ophthalmic dispensing education. Only
those educational programs as are available to all licensees
on a reasonable nondiscriminatory fee basis shall be
approved. Programs to be held within or outside this
Commonwealth may receive approval. The number of required
hours of study may not exceed those that are available at
approved courses held within this Commonwealth during the
applicable license renewal period. In cases of certified
illness or undue hardship, the board may waive the continuing
education requirement.
(13) To certify, upon the written request of a licensee
and payment of the prescribed fee, that the licensee is
qualified for licensure and the practice of ophthalmic
dispensing in this Commonwealth.
(14) To promulgate all rules and regulations necessary
to carry out the purposes of this act.
(15) To administer and enforce the laws of this
Commonwealth relating to those activities involving
ophthalmic dispensing for which licensing is required under
this act and to instruct and require its agents to bring
prosecutions for unauthorized and unlawful practice.
(16) To employ or contract, with the approval of the
Commissioner of Professional and Occupational Affairs, for
20110HB0516PN0483 - 9 -
qualified ophthalmic dispensers to assist the board in the
conduct of the practical portions of the examinations
conducted by the board, for such reasonable compensation,
including expenses, as the board shall determine, in
accordance with section 812.1 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
(17) To issue subpoenas upon application of an attorney
responsible for representing the Commonwealth in disciplinary
actions before the board for the purpose of investigating
alleged violations of the disciplinary provisions
administered by the board. The board shall have the power to
subpoena witnesses, to administer oaths, to examine witnesses
or to take testimony or compel the production of books,
records, papers and documents as it may deem necessary or
proper in and pertinent to any proceeding, investigation or
hearing held by the board. Ophthalmic dispensing records may
not be subpoenaed without consent of the patient or without
order of a court of competent jurisdiction on a showing that
the records are reasonably necessary for the conduct of the
investigation. The court may impose such limitations on the
scope of the subpoena as are necessary to prevent unnecessary
intrusion into patient confidential information. The board is
authorized to apply to Commonwealth Court to enforce its
subpoenas.
Section 5. Reports to board.
An attorney who represents the Commonwealth in disciplinary
matters before the board shall notify the board immediately upon
receiving notification of an alleged violation of this act. The
board shall maintain current records of all reported alleged
violations and periodically review the records for the purpose
20110HB0516PN0483 - 10 -
of determining that each alleged violation has been resolved in
a timely manner.
Section 6. General qualifications for licensure.
(a) General rule.--A license as an ophthalmic dispenser
shall be issued by the board to any person who files an
application, pays a fee of $50 and submits evidence under oath
satisfactory to the board that the applicant:
(1) Is more than 18 years of age and of good moral
character.
(2) Has graduated from high school or possesses a
General Educational Development certificate.
(3) Has at least two years of satisfactory training and
experience in ophthalmic dispensing under the supervision of
an ophthalmic dispenser, physician, osteopath or optometrist
or is a graduate of an accepted school of ophthalmic
dispensing.
(4) Has passed a satisfactory examination in ophthalmic
dispensing approved by the board.
(5) Is not addicted to the use of alcohol or narcotics
or other habit-forming drugs.
(b) Other requirements.--The board may establish further
requirements to be met by applicants before granting them the
right to take an examination.
(c) Penalties for false statements.--An applicant who
knowingly makes a false statement of fact in an application for
examination shall be deemed to have violated this act and shall
be subject to the penalties specified in this act.
(d) Grounds for refusal of license.--The board shall not
issue a license to an applicant who has been convicted of a
felony under the act of April 14, 1972 (P.L.233, No.64), known
20110HB0516PN0483 - 11 -
as The Controlled Substance, Drug, Device and Cosmetic Act, or
of an offense under the laws of another jurisdiction which, if
committed in this Commonwealth, would be a felony under The
Controlled Substance, Drug, Device and Cosmetic Act, unless:
(1) at least ten years have elapsed from the date of
conviction;
(2) the applicant satisfactorily demonstrates to the
board that the applicant has made significant progress in
personal rehabilitation since the conviction such that
licensure of the applicant should not be expected to create a
substantial risk of harm to the health and safety of the
applicant's patients or the public or a substantial risk of
further criminal violations; and
(3) the applicant otherwise satisfies the requirements
of this act.
Section 7. Renewal of license.
(a) General rule.--A person licensed by the board must apply
for renewal of the license by such methods as the board shall
determine by regulation, provided that the renewal period shall
not exceed two years.
(b) Continuing education.--Beginning with the year 2011, a
license shall not be renewed by the board unless the ophthalmic
dispenser applying for renewal submits proof to the board that
during the two calendar years immediately preceding filing of
the application, the ophthalmic dispenser has satisfactorily
completed a minimum of 30 hours of continuing professional
ophthalmic dispensing education approved by the board. No credit
shall be given for any course in office management or practice
building.
(c) Activity in other states, territories and countries.--
20110HB0516PN0483 - 12 -
(1) Any licensee of this Commonwealth who is also
licensed to practice ophthalmic dispensing in any other
state, territory or country shall report this information to
the board on the biennial renewal application. Any
disciplinary action taken in other states shall be reported
to the board on the biennial renewal application or within 90
days of final disposition, whichever is sooner.
(2) Multiple licensure shall be noted on the licensee's
record by the board, and that state, territory or country
shall be notified by the board of any disciplinary action
taken against the licensee in this Commonwealth.
(d) Inactive status.--
(1) An ophthalmic dispenser who requests in writing to
place his license on inactive status may reactivate the
license after paying the required fees and showing proof of
meeting the continuing education requirement for the biennial
renewal period immediately preceding the request for
reactivation.
(2) An ophthalmic dispenser who seeks to renew an
inactive license shall file with the board an affidavit
affirming that the ophthalmic dispenser has not practiced
ophthalmic dispensing in this Commonwealth during such period
the license was inactive.
Section 8. Exemptions and exceptions.
(a) General rule.--The licensure requirements of this act
shall not apply to ophthalmic dispensing officers in the medical
service of the armed forces of the United States, the United
States Public Health Service, the Veterans' Administration or
ophthalmic dispensers employed in Federal service, while in
discharge of their official duties.
20110HB0516PN0483 - 13 -
(b) Eligibility for exemption from examination.--The board
may, upon written application and payment of the regular
examination fee, issue a license without an examination to an
applicant who:
(1) Is at least 21 years of age.
(2) (i) Has passed a standard examination in ophthalmic
dispensing in any other state or all parts of the
examination given by the National Board of Examiners in
Optometry, provided that the standards of the other state
or the National Board are equal to or exceed the
standards of this Commonwealth.
(ii) Is licensed in another state and has practiced
in that state for a minimum of four years immediately
preceding the application.
(c) Additional requirements.--The board may impose
additional uniform educational requirements as a requisite for
licensure.
(d) Nonapplicability.--The provisions of this act shall not
apply to physicians licensed under the laws of this
Commonwealth.
(e) Contact lens fittings.--
(1) Nothing in this act shall be construed to prohibit
the fitting of contact lenses by a person acting under the
direction, personal supervision and control of a physician or
an optometrist within the standards of practice of that
respective profession.
(2) Nothing in this act shall be construed to prohibit
any individual from fitting an appropriate contact lens for a
specific intended wearer and the complete assisting of such
wearer in the use of the contact lens, provided that:
20110HB0516PN0483 - 14 -
(i) The individual who fits the contact lens
successfully passed the examination administered by the
National Contact Lens Examiners as of July 14, 1986, and
is currently certified by the National Contact Lens
Examiners.
(ii) The fitting is based on prescription of a
licensed physician or optometrist.
(iii) The wearer is informed in writing to return to
the prescribing physician or optometrist for periodic
evaluation during the fit, at intervals not to exceed
three months or whenever the fitter feels professional
judgment is needed.
(iv) The individual who passed the examination
administered by the National Contact Lens Examiners as of
July 14, 1986, submitted evidence of such successful
examination to the board by September 12, 1986.
(v) The board shall compile and publish a list of
individuals who meet the requirements of this subsection
and shall enforce the provisions of this subsection.
(f) Leasing space and franchise payments.--Nothing in this
act shall prohibit any optometrist from leasing space from an
establishment or from paying for franchise fees or other
services on a percentage of gross receipts basis.
Section 9. Reasons for refusal, suspension, revocation or other
corrective actions.
(a) General rule.--The board may refuse, revoke, limit or
suspend a license or take other corrective action authorized
under this act against an ophthalmic dispenser licensed to
practice ophthalmic dispensing in this Commonwealth for any or
all of the following reasons:
20110HB0516PN0483 - 15 -
(1) Failure of an applicant for licensure to demonstrate
the necessary qualifications as provided in this act or the
rules and regulations of the board.
(2) Failure to permanently display in any location in
which he practices a license or a certified copy of a license
issued by the board.
(3) Use of deceit or fraud in obtaining a license or in
the practice of ophthalmic dispensing.
(4) Making misleading, deceptive, untrue or fraudulent
representations or advertisements in the practice of
ophthalmic dispensing.
(5) Conviction of a felony or a crime involving moral
turpitude. Conviction shall include a finding or verdict of
guilt, an admission of guilt or a plea of nolo contendere.
(6) Revocation, suspension or refusal to grant a license
to practice ophthalmic dispensing, or imposition of other
disciplinary action, by the proper licensing authority of
another state, territory or country.
(7) (i) Being unable to practice the profession with
reasonable skill and safety to patients by reason of
illness, addiction to drugs or alcohol, having been
convicted of a felonious act prohibited under the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act, or convicted of
a felony relating to a controlled substance in a court of
law of the United States or any other state, territory,
possession or country, or if the applicant is or shall
become mentally incompetent.
(ii) An applicant's statement on the application
declaring the absence of a conviction shall be deemed
20110HB0516PN0483 - 16 -
satisfactory evidence of the absence of a conviction
unless the board has some evidence to the contrary.
(iii) In enforcing this paragraph, the board shall,
upon probable cause, have authority to compel an
ophthalmic dispenser to submit to a mental or physical
examination by a physician or a psychologist approved by
the board.
(iv) Failure of an ophthalmic dispenser to submit to
an examination when directed by the board, unless such
failure is due to circumstances beyond the ophthalmic
dispenser's control, shall constitute an admission of the
allegations against the ophthalmic dispenser, consequent
upon which a default and final order may be entered
without the taking of testimony or presentation of
evidence.
(v) An ophthalmic dispenser affected under this
paragraph shall at reasonable intervals be afforded an
opportunity to demonstrate that the ophthalmic dispenser
can resume a competent practice of the profession with
reasonable skill and safety to patients.
(8) Violation of a regulation promulgated or order
issued by the board in a previous disciplinary proceeding
against that licensee or applicant for licensure.
(9) Knowingly aiding, assisting, procuring or advising
an unlicensed person or person who is in violation of this
act or the rules and regulations of the board to practice
ophthalmic dispensing.
(10) Failure to conform to the acceptable and prevailing
standards of ophthalmic dispensing practice in rendering
professional service to a patient. Actual injury to a patient
20110HB0516PN0483 - 17 -
need not be established.
(11) Neglect of duty in the practice of ophthalmic
dispensing, which may include failure to refer a patient,
when appropriate, to a physician for consultation or further
treatment when an examination determines the presence of a
pathology.
(b) Action authorized.--When the board finds that the
license of a person may be refused, revoked or suspended the
board may:
(1) Refuse, revoke or suspend a license.
(2) Administer a public reprimand.
(3) Limit or otherwise restrict the licensee's practice
under this act.
(4) Suspend any enforcement under this subsection and
place the licensee on probation, with the right to vacate the
probationary order and impose the enforcement.
(5) Require a licensee to submit to the care, counseling
or treatment of a physician or a psychologist designated by
the board.
(6) Restore or reissue, in its discretion, a suspended
license to practice ophthalmic dispensing and impose any
disciplinary or corrective measure which it might originally
have imposed.
(c) Opportunity to defend.--A person affected by any action
of the board under this section shall be afforded an opportunity
to demonstrate that the person is no longer in violation of this
section.
(d) Written complaints to be filed with board.--
(1) A person may complain of a violation of the
provisions of this act or the rules and regulations of the
20110HB0516PN0483 - 18 -
board by filing a written complaint with the board.
(2) The board shall decide to dismiss the case, issue an
injunction or hold a hearing in accordance with the general
rules of administrative practice and procedure.
(3) If the person filing the complaint is a member of
the board, the person shall disqualify himself from
participating as a member of the board in all procedures
related to the complaint.
(e) Procedure and appeal.--Actions of the board shall be
taken subject to the right of notice, hearing, adjudication and
appeal accorded by law.
(f) Waiting period for reinstatement.--
(1) Unless ordered to do so by a court, the board shall
not reinstate the license of a person to practice as an
ophthalmic dispenser which has been revoked until at least
five years have elapsed from the effective date of the
revocation.
(2) A person must apply for a license after such five-
year period in accordance with section 6 if the person
desires to practice ophthalmic dispensing at any time after
the revocation.
(g) Automatic suspension.--
(1) A license issued under this act shall automatically
be suspended upon:
(i) the legal commitment of a licensee to an
institution because of mental incompetency from any cause
upon filing with the board a certified copy of such
commitment;
(ii) conviction of a felony under The Controlled
Substance, Drug, Device and Cosmetic Act; or
20110HB0516PN0483 - 19 -
(iii) conviction of an offense under the laws of
another jurisdiction which, if committed in this
Commonwealth, would be a felony under The Controlled
Substance, Drug, Device and Cosmetic Act.
(2) As used in this section the term "conviction" shall
include a judgment, an admission of guilt or a plea of nolo
contendere.
(3) Automatic suspension under this subsection shall not
be stayed pending any appeal of a conviction. Restoration of
the license shall be made as provided in this act for
revocation or suspension of the license.
(h) Temporary suspension.--
(1) The board shall temporarily suspend a license under
circumstances as determined by the board to be an immediate
and clear danger to the public health or safety. The board
shall issue an order to that effect without a hearing, but
upon due notice to the licensee concerned, at the licensee's
last known address, shall include a written statement of all
allegations against the licensee.
(2) The provisions of subsection (f) shall not apply to
temporary suspension.
(3) The board shall commence formal action to suspend,
revoke or restrict the license of the person concerned as
otherwise provided for in this act.
(4) All actions shall be taken promptly and without
delay. Within 30 days following the issuance of an order
temporarily suspending a license, registration or
certificate, the board shall conduct or cause to be conducted
a preliminary hearing to determine that there is a prima
facie case supporting the suspension.
20110HB0516PN0483 - 20 -
(5) The licensee whose license has been temporarily
suspended may be present at the preliminary hearing and may
be represented by counsel, cross-examine witnesses, inspect
physical evidence, call witnesses, offer evidence and
testimony and make a record of the proceedings.
(6) If it is determined that there is not a prima facie
case, the suspended license shall be immediately restored.
The temporary suspension shall remain in effect until vacated
by the board but in no event longer than 180 days.
(i) Penalty for refusal to return license.--The board shall
require a person whose license has been suspended or revoked to
return the license in such manner as the board directs. Failure
to surrender the license shall be a misdemeanor of the third
degree.
Section 10. Impaired professionals.
(a) Professional consultant to be appointed.--The board,
with the approval of the Commissioner of Professional and
Occupational Affairs, shall appoint and fix the compensation of
a professional consultant who is a licensee of the board or such
other professional as the board may determine with education and
experience in the identification, treatment and rehabilitation
of persons with physical or mental impairments. The consultant
shall be accountable to the board and treatment programs, such
as alcohol and drug treatment programs licensed by the
Department of Health, psychological counseling and impaired
professional support groups, which are approved by the board and
which provide services to licensees under this act.
(b) Deferral or dismissal of corrective action.--
(1) The board may defer and ultimately dismiss any of
the types of corrective action set forth under this act for
20110HB0516PN0483 - 21 -
an impaired professional so long as the professional is
progressing satisfactorily in an approved treatment program,
provided that the provisions of this subsection shall not
apply to a professional convicted of a felonious act
prohibited under the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act, or convicted of a felony relating to a controlled
substance in a court of law of the United States or any other
state, territory or country.
(2) An approved program provider shall, upon request,
disclose to the consultant such information in its possession
regarding an impaired professional in treatment which the
program provider is not prohibited from disclosing by an act
of the Commonwealth, another state or the United States.
(3) The duty of disclosure by an approved program
provider under paragraph (2) shall apply in the case of
impaired professionals who are the subject of a board
investigation or disciplinary proceeding and impaired
professionals who voluntarily enter a treatment program other
than under the provisions of this section but fail to
complete the program successfully or to adhere to an
aftercare plan developed by the program provider.
(c) Agreement between board and impaired professional.--
(1) An impaired professional who enrolls in an approved
treatment program shall enter into an agreement with the
board under which the professional's license shall be
suspended or revoked, but enforcement of that suspension or
revocation may be stayed for the length of time the
professional remains in the program and makes satisfactory
progress, complies with the terms of the agreement and
20110HB0516PN0483 - 22 -
adheres to any limitations on his practice imposed by the
board to protect the public.
(2) Failure to enter into such an agreement shall
disqualify the professional from the impaired professional
program and shall activate an immediate investigation and
disciplinary proceeding by the board.
(d) Effect of unsatisfactory progress.--If, in the opinion
of the consultant after consultation with the provider, an
impaired professional who is enrolled in an approved treatment
program has not progressed satisfactorily, the consultant shall
disclose to the board all information in his possession
regarding said professional, and the board shall institute
proceedings to determine if the stay of the enforcement of the
suspension or revocation of the impaired professional's license
shall be vacated.
(e) Civil immunity.--An approved program provider who makes
disclosure under this section shall not be subject to civil
liability for such disclosure or its consequences.
(f) Duty to report.--
(1) Any hospital or health care facility, peer or
colleague who has substantial evidence that a professional
has an active addictive disease for which the professional is
not receiving treatment, is diverting a controlled substance
or is mentally or physically incompetent to carry out the
duties of the professional's license shall make or cause to
be made a report to the board, provided that any person or
facility which acts in a treatment capacity to an impaired
professional in an approved treatment program is exempt from
the mandatory reporting requirements of this subsection.
(2) Any person or facility that reports under this
20110HB0516PN0483 - 23 -
section in good faith and without malice shall be immune from
any civil or criminal liability arising from such report.
(3) Failure to provide such report within a reasonable
time from receipt of knowledge of impairment shall subject
the person or facility to a fine of not more than $1,000. The
board shall levy this penalty only after affording the
accused party the opportunity for a hearing as provided in 2
Pa.C.S. (relating to administrative law and procedure).
Section 11. Violations and penalties.
(a) General rule.--
(1) It is unlawful for any person in this Commonwealth
to engage in the practice of ophthalmic dispensing or pretend
to have knowledge of any branch or branches of the practice
of ophthalmic dispensing or to hold himself forth as a
practitioner of ophthalmic dispensing, unless the person has
fulfilled the requirements of this act and received a license
to practice ophthalmic dispensing in this Commonwealth.
(2) A person convicted of practicing ophthalmic
dispensing without a license commits a misdemeanor and shall,
on first offense, be subject to a fine of not more than
$1,000 or imprisonment of not more than six months, or both.
Conviction on each additional offense shall result in a fine
of not less than $2,000 and imprisonment of not less than six
months or more than one year.
(b) Penalty for other violations.--A person convicted of
violating a provision of this act, other than of subsection (a),
commits a summary offense and shall be fined not more than $500.
(c) Civil penalty.--
(1) In addition to any other civil remedy or criminal
penalty provided for in this act, the board, by a vote of the
20110HB0516PN0483 - 24 -
majority of the maximum number of the authorized membership
of the board as provided for by this act or by a vote of the
majority of the qualified and confirmed membership or a
minimum of six members, whichever is greater, may levy a
civil penalty of up to $1,000 on any current licensee who
violates any provision of this act or on any person who
practices ophthalmic dispensing without being properly
licensed to do so under this act.
(2) The board shall levy this penalty only after
affording the accused party the opportunity for a hearing, as
provided in 2 Pa.C.S. (relating to administrative law and
procedure).
(d) Injunctive relief.--
(1) It shall be unlawful for any person to practice or
attempt to offer to practice ophthalmic dispensing without
having at the time of so doing a valid, unexpired, unrevoked
and unsuspended license issued under this act.
(2) The unlawful practice of ophthalmic dispensing may
be enjoined by the courts on petition of the board or the
Commissioner of Professional and Occupational Affairs.
(3) In any such proceeding, it shall not be necessary to
show that any person is individually injured by the actions
complained of.
(4) If it is found that the respondent has engaged in
the unlawful practice of ophthalmic dispensing, the court
shall enjoin the respondent from so practicing unless the
respondent has been duly licensed.
(5) Procedure in such cases shall be the same as in any
other injunction suit. The remedy by injunction hereby given
is in addition to any other civil or criminal prosecution and
20110HB0516PN0483 - 25 -
punishment.
(e) Deposit of fines and civil penalties.--All fines and
civil penalties imposed in accordance with this section shall be
paid into the Professional Licensure Augmentation Account.
Section 12. Fees and other moneys.
(a) General rule.--The board shall fix or change fees for
initial licensure, examination, biennial license renewal,
verification of licensure or grades to other jurisdictions,
initial and renewal certified copies of licenses and biennial
renewal of branch offices.
(b) Deposit of collected moneys.--Moneys collected under the
provisions of this act shall be paid into the Professional
Licensure Augmentation Account and disbursed according to law.
(c) Fixing of fees.--
(1) All fees required under this act shall be fixed by
the board by regulation and shall be subject to the act of
June 25, 1982 (P.L.633, No.181), known as the Regulatory
Review Act.
(2) If the revenues raised by fees, fines and civil
penalties imposed under this act are insufficient to meet
expenditures over a two-year period, the board shall increase
those fees by regulation so that the projected revenues will
meet or exceed projected expenditures.
(d) Increase of fees by Bureau of Professional and
Occupational Affairs.--If the Bureau of Professional and
Occupational Affairs determines that the fees established by the
board under subsection (c) are inadequate to meet the minimum
enforcement efforts required by this act, then the bureau, after
consultation with the board and subject to the Regulatory Review
Act, shall increase the fees by regulation in an amount that
20110HB0516PN0483 - 26 -
adequate revenues are raised to meet the required enforcement
effort.
Section 30. Effective date.
This act shall take effect in 60 days.
20110HB0516PN0483 - 27 -