S-1291.2                   _______________________________________________

 

                                                     SENATE BILL 5672

                              _______________________________________________

 

State of Washington                              53rd Legislature                             1993 Regular Session

 

By Senators Wojahn, Sellar, Franklin, Moyer and Hargrove

 

Read first time 02/08/93.  Referred to Committee on Health & Human Services.

 

Enacting the vision care consumer assistance act.


          AN ACT Relating to the vision care consumer assistance act; amending RCW 18.53.140; adding a new section to chapter 34.05 RCW; adding a new chapter to Title 18 RCW; and creating a new section.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

          NEW SECTION.  Sec. 1.  LEGISLATIVE INTENT.  The legislature finds that at least one-half of the state's population need corrective lenses in order to maintain good eyesight.  It further finds that maintaining a proper balance between public protection and overregulation of health care professions is critical if Washington state is to ensure access to affordable vision services and goods for consumers.  It is important for patients to engage in price and quality comparison shopping among licensed practitioners.

          The legislature finds that boards regulating health care professions can lose sight of this balance and adopt rules that unduly restrict competition, given the public health issues confronted.  This risk has been acknowledged to be particularly high in the prescription and sale of corrective lenses.  The presence of four professional regulatory authorities with four separate practice acts causes confusion in this area of health care.

          The federal trade commission has twice entered the field.  Its last effort was ruled unlawful as violating the prerogatives of state government.  The purpose of this chapter is to enact into law the best features of that federal effort, supplementing it with additional protection of consumers needing contact lenses.

 

          NEW SECTION.  Sec. 2.  DEFINITIONS.  For purposes of this chapter, the following definitions apply:

          (1) "Patient" means a person who has had an eye examination.

          (2) "Eye examination" means an encounter with a prescriber that includes the process of determining the refractive condition of a person's eyes or the appropriateness of contact lenses, if requested by the patient.

          (3) "Ophthalmic goods" means eyeglasses or a component or components of eyeglasses, and contact lenses.

          (4) "Ophthalmic services" means the measuring, fitting, adjusting, and fabricating of ophthalmic goods subsequent to an eye examination.

          (5) "Prescriber" means an ophthalmologist or optometrist who performs eye examinations under chapter 18.53, 18.57, or 18.71 RCW.

          (6) "Optician" means a person licensed under chapter 18.34 RCW.

          (7) "Person" means an individual, partnership, corporation, association, or other entity.

          (8) "Practitioner" includes prescribers and opticians.

          (9) "Prescription" means the written direction from a prescriber for corrective lenses and consists of the refractive powers.  If contact lenses are requested by the patient the prescription must in addition contain a notation that the patient is "okay for contacts" or similar language confirming there are no contraindications for contacts.

          (10) "Secretary" means the secretary of the department of health.

 

          NEW SECTION.  Sec. 3.  SEPARATION OF EXAMINATION AND DISPENSING.  (1) No prescriber shall:

          (a) Fail to provide to the patient one copy of the patient's prescription immediately after the eye examination is completed.  A prescriber may refuse to give the patient a copy of the patient's prescription until the patient has paid for the eye examination, but only if that prescriber would have required immediate payment from that patient had the examination revealed that no ophthalmic goods were required;

          (b) Condition the availability of an eye examination or prescription, or both, to a person on a requirement that the patient agree to purchase ophthalmic goods from the prescriber or a dispenser approved by the prescriber;

          (c) Where the patient requested an evaluation for contact lenses at the time of the eye examination, fail to include a notation of "okay for contacts" or similar language on the prescription or fail to give oral approval for contacts to a practitioner licensed by the state to fit contact lenses if there are no contraindications for contacts unless the prescriber's practice excludes the evaluation of the eye for contact lenses in all cases.  However, a prescriber may exclude categories of contact lenses where clinically indicated for a patient, but may not restrict patients to a particular brand;

          (d) Charge the patient a fee in addition to the prescriber's examination fee as a condition to releasing the prescription to the patient.  However, a prescriber may charge a reasonable, additional fee for verifying ophthalmic goods dispensed by another practitioner if that fee is imposed at the time the verification is performed; or

          (e) Place on the prescription, or require the patient to place on the prescription, sign, or deliver to the patient a form or notice waiving or disclaiming the liability or responsibility of the prescriber for the accuracy of the eye examination or the accuracy of the ophthalmic goods and services dispensed by another practitioner.

          (2) Nothing contained in this title shall prevent a prescriber or optician from measuring the refractive power of eyeglass lenses and duplicating the lenses upon the request of a patient.  No prescriber or optician is liable for harm caused by eyeglasses or contact lenses dispensed under this subsection.

 

          NEW SECTION.  Sec. 4.  MAXIMIZING COMPETITION IN THE OPTICAL INDUSTRY.  (1) If the patient chooses to purchase contact lenses from an optician and the prescription is silent regarding contact lenses, the optician shall call the prescriber for permission to fit contact lenses and, if given, chart the permission.  If the prescriber concludes the ocular health of the eye presents a contraindication for contact lenses, a verbal explanation of that contraindication must be given to the patient at the time of the eye examination and documentation maintained in the patient's record.  However, if no evaluation for contact lenses had been done during the eye examination, the prescriber may decline to give oral approval for contact lenses.

          (2) If a patient chooses to purchase contact lenses from an optician, the optician shall advise the patient to have a prescriber monitor the performance of the initial set of contact lenses on the eye and chart the advice.

          (3) The prescriber may not include a prescription expiration date of less than two years if the patient is being fitted with contact lenses, unless warranted by the ocular health of the eye.  If a prescription is to expire in less than two years, an explanatory notation must be made in the patient's record and a verbal explanation given to the patient at the time of the eye examination.

          (4) No practitioner may dispense contact lenses based on a prescription that is over two years old.

 

          NEW SECTION.  Sec. 5.  BANS ON COMMERCIAL PRACTICE.  As to the provision of eye examinations, ophthalmic services, and ophthalmic goods only, no provision of Washington law may be construed to:

          (1) Prevent or restrict prescribers or opticians from entering into associations with each other, laypersons, or corporations by:

          (a) Prohibiting the employing of prescribers or opticians to provide such services or goods to the public;

          (b) Prohibiting prescribers or opticians from entering into partnership agreements, joint ownership or equity participation agreements, or profit-sharing agreements for the purpose of forming entities to provide such services or goods to the public;

          (c) Prohibiting prescribers or opticians from entering into franchise agreements, including those that provide for the sharing of revenues, for the purpose of forming entities to provide such services or goods to the public;

          (d) Prohibiting the leasing of space from persons other than prescribers or opticians to provide such services or goods to the public or prohibiting prescribers or opticians from entering into leases for such space where rental payments under such leases are based on a percentage of revenues; or

          (e) Prohibiting lay control over the business aspects of a prescriber or optician practice or an entity formed to provide the services or goods to the public;

          (2) Limit the number of offices that may be owned or operated by prescribers or opticians or by entities formed by an agreement covered by this section; or require that an owner of branch offices remain in personal attendance at each branch office for a specific percentage of time;

          (3) Prohibit prescribers or opticians or any entities formed by any of the agreements covered by this section from practicing in a pharmacy, department store, shopping center, retail optical dispensary, or other mercantile location;

          (4) Prohibit prescribers or opticians or entities formed by an agreement covered by this section from practicing or holding themselves out to the public, by advertising or otherwise, under a nondeceptive trade name, including a name other than the name shown on their licenses or certificate of registration; or require the disclosure in advertising of the names of all prescribers or opticians practicing at a given advertised location or practicing under a trade name.

 

          NEW SECTION.  Sec. 6.  ADVERTISING OF EYE EXAMINATIONS, OPHTHALMIC GOODS, AND SERVICES.  (1) All advertising of eye examinations, ophthalmic goods, and services shall comply with RCW 18.130.180 and be regulated by the secretary as the disciplinary and rule-making authority.  The secretary is admonished to carry out these responsibilities in a way that encourages vigorous competition in the market for such goods and services.

          (2) The secretary may issue cease and desist orders against a person responsible for placing advertising that violates RCW 18.130.180.  Hearings challenging such orders shall be promptly held under chapter 34.05 RCW.

 

          NEW SECTION.  Sec. 7.  RULE MAKING.  (1) The secretary shall adopt rules necessary to implement the purposes of this chapter.  The secretary is specifically directed to adopt rules that maximize competition in the delivery of vision care limited only by the existing scope of practice of the impacted professions and by provisions preventing demonstrated and substantial threats to the public's vision health.

          (2) This chapter and the rules adopted by the secretary pursuant to this section shall supersede rules adopted by professions regulated pursuant to chapter 18.34, 18.53, 18.57, or 18.71 RCW that conflict with this chapter.  To the extent that, in the secretary's opinion, rules adopted by these professions conflict with the purposes of this chapter, the secretary may declare them null and void.

 

          NEW SECTION.  Sec. 8.  SHORT TITLE.  This chapter may be cited as the vision care consumer assistance act.

 

          NEW SECTION.  Sec. 9.  CODIFICATION DIRECTION.  Sections 1 through 8 of this act shall constitute a new chapter in Title 18 RCW.

 

          NEW SECTION.  Sec. 10.  A new section is added to Part IV of chapter 34.05 RCW to read as follows:

          JOINT ADMINISTRATIVE RULES REVIEW COMMITTEE JURISDICTION.  Unless the context clearly indicates otherwise, for purposes of this part of chapter 34.05 RCW, "rule" includes guidelines, interpretive statements, policy statements, declaratory judgments whether binding or nonbinding, advisory opinions, or any other orders of a board of medical examiners, medical disciplinary board, board of osteopathic medicine and surgery, board of optometry, and the secretary of health if addressing the delivery of any vision care or goods.

 

          NEW SECTION.  Sec. 11.  CAPTIONS NOT LAW.  Section captions as used in this act constitute no part of the law.

 

          NEW SECTION.  Sec. 12.  SEVERABILITY.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

 

        Sec. 13.  RCW 18.53.140 and 1991 c 3 s 138 are each amended to read as follows:

          It shall be unlawful for any person:

          (1) To sell or barter, or offer to sell or barter any license issued by the secretary; or

          (2) To purchase or procure by barter any license with the intent to use the same as evidence of the holder's qualification to practice optometry; or

          (3) To alter with fraudulent intent in any material regard such license; or

          (4) To use or attempt to use any such license which has been purchased, fraudulently issued, counterfeited or materially altered as a valid license; or

          (5) ((To practice optometry under a false or assumed name, or as a representative or agent of any person, firm or corporation with which the licensee has no connection:  PROVIDED, Nothing in this chapter nor in the optometry law shall make it unlawful for any lawfully licensed optometrist or association of lawfully licensed optometrists to practice optometry under the name of any lawfully licensed optometrist who may transfer by inheritance or otherwise the right to use such name; or

          (6))) To practice optometry in this state either for him or herself or any other individual, corporation, partnership, group, public or private entity, or any member of the licensed healing arts without having at the time of so doing a valid license issued by the secretary of health; or

          (((7) To in any manner barter or give away as premiums either on his own account or as agent or representative for any other purpose, firm or corporation, any eyeglasses, spectacles, lenses or frames; or

          (8))) (6) To use drugs in the practice of optometry, except those topically applied for diagnostic or therapeutic purposes((; or

          (9) To use advertising whether printed, radio, display, or of any other nature, which is misleading or inaccurate in any material particular, nor shall any such person in any way misrepresent any goods or services (including but without limitation, its use, trademark, grade, quality, size, origin, substance, character, nature, finish, material, content, or preparation) or credit terms, values, policies, services, or the nature or form of the business conducted; or

          (10) To advertise the "free examination of eyes," "free consultation," "consultation without obligation," "free advice," or any words or phrases of similar import which convey the impression to the public that eyes are examined free or of a character tending to deceive or mislead the public, or in the nature of "bait advertising;" or

          (11) To use an advertisement of a frame or mounting which is not truthful in describing the frame or mounting and all its component parts.  Or advertise a frame or mounting at a price, unless it shall be depicted in the advertisement without lenses inserted, and in addition the advertisement must contain a statement immediately following, or adjacent to the advertised price, that the price is for frame or mounting only, and does not include lenses, eye examination and professional services, which statement shall appear in type as large as that used for the price, or advertise lenses or complete glasses, viz.:  frame or mounting with lenses included, at a price either alone or in conjunction with professional services; or

          (12) To use advertising, whether printed, radio, display, or of any other nature, which inaccurately lays claim to a policy or continuing practice of generally underselling competitors; or

          (13) To use advertising, whether printed, radio, display or of any other nature which refers inaccurately in any material particular to any competitors or their goods, prices, values, credit terms, policies or services; or

          (14) To use advertising whether printed, radio, display, or of any other nature, which states any definite amount of money as "down payment" and any definite amount of money as a subsequent payment, be it daily, weekly, monthly, or at the end of any period of time)).

 


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