SENATE BILL 367

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Michael S. Sanchez

AN ACT

RELATING TO THE PRACTICE OF OPTOMETRY; EXCLUDING CERTAIN SURGERIES AND INJECTIONS FROM THE PRACTICE OF OPTOMETRY; PROVIDING FOR CERTIFICATION IN THE USE OF LASER TREATMENT DEVICES; PROSCRIBING CERTAIN PRACTICES WITHOUT CERTIFICATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 61-2-2 NMSA 1978 (being Laws 1973, Chapter 353, Section 2, as amended) is amended to read:

     "61-2-2. DEFINITIONS.--As used in the Optometry Act:

          A. "practice of optometry":

                (1) means:

                     (a) the employment of any subjective or objective means or methods, including but not limited to the use of lenses, prisms, autorefractors or other automated testing devices, and includes the prescription or administration of drugs for the purpose of diagnosing the visual defects or abnormal conditions of the human eye and its adnexa; and

                     (b) the employing, adapting or prescribing of preventive or corrective measures, including but not limited to lenses, prisms, contact or corneal lenses or other optical appliances, ocular exercises, vision therapy, vision training and vision rehabilitation services and the use of surgical procedures, except those excluded by Paragraph (2) of this subsection, and includes the prescription or administration of all drugs, except a drug listed in Schedule I or II of the Controlled Substances Act or rules adopted pursuant to that act, rational for the correction, relief or referral of visual defects or abnormal conditions of the human eye and its adnexa; [and] but

                (2) does not include the [use] following categories of surgery [or injections] in the treatment of eye diseases:

                     (a) surgery requiring full-thickness incision or excision of the cornea or sclera;

                     (b) laser-in-situ keratomileusis and photorefractive keratectomy;

                     (c) penetrating or lamellar keratoplasty or pterygium surgery;

                     (d) incisional surgery for cosmetic or mechanical repair of blepharochalasis, ptosis and tarsorrhaphy;

                     (e) surgery of the retina and ciliary body, including cryotherapy;

                     (f) surgical extraction of the crystalline lens; or

                     (g) surgery of the extraocular muscles;

          B. "ophthalmic lens" means a lens that has a spherical, cylindrical or prismatic value, is ground pursuant to a prescription and is intended to be used as eyeglasses;

          C. "contact lens" means a lens to be worn on the anterior segment of the human eye;

          D. "prescription" means a written order by an optometrist or a physician for an individual patient for:

                (1) ophthalmic lenses;

                (2) contact lenses; or

                (3) a topical ocular pharmaceutical agent or an oral pharmaceutical agent that is regulated pursuant to the New Mexico Drug, Device and Cosmetic Act;

          E. "eyeglasses" means an exterior optical device using ophthalmic lenses for the correction or relief of disturbances in and anomalies of human vision; and

          F. "board" means the board of optometry."

     Section 2. Section 61-2-10.2 NMSA 1978 (being Laws 1995, Chapter 20, Section 5, as amended) is amended to read:

     "61-2-10.2. DESIGNATION OF ORAL PHARMACEUTICAL AGENTS--

CERTIFICATION FOR USE OF CERTAIN AGENTS.--

          [A. Subject to the provisions of the Optometry Act, optometrists qualified and certified by the board may prescribe or administer the following classes of oral pharmaceutical agents:

                (1) anti-infective medications, not including antifungals;

                (2) anti-glaucoma medications, not including osmotic medications;

                (3) anti-allergy medications;

                (4) anti-inflammatory medications, not including oral corticosteroids and immunosuppression agents; and

                (5) analgesic medications, including schedules III through V controlled substances, as provided in the Controlled Substances Act.

          B.] A. The board shall issue certification for the use of oral pharmaceutical agents [as set forth in Subsection A of this section] to optometrists currently licensed by the board who are certified for the use of topical ocular pharmaceutical agents. To be certified, an optometrist shall submit to the board proof of having satisfactorily completed a course in pharmacology as applied to optometry, with particular emphasis on the administration of oral pharmaceutical agents for the purpose of examination of the human eye, and analysis of ocular functions and treatment of visual defects or abnormal conditions of the human eye and its adnexa. The course shall constitute a minimum of twenty hours of instruction in clinical pharmacology, including systemic pharmacology as applied to optometry, and shall be taught by an accredited institution approved by the board.

          [C.] B. As of July 1, 1996, all applicants for licensure shall meet the requirements for certification in the use of diagnostic, topical therapeutic and oral pharmaceutical agents as set forth in the Optometry Act and shall successfully complete the board's examination in diagnostic, topical and oral pharmaceutical agents prior to licensure.

          [D.] C. The certification authorized by this section shall be displayed in a conspicuous place in the optometrist's principal office or place of business."

     Section 3. A new section of the Optometry Act is enacted to read:

     "[NEW MATERIAL] CERTIFICATION FOR USE OF CERTAIN LASER TREATMENT DEVICES.--

          A. Subject to the provisions of the Optometry Act, only optometrists qualified and certified by the board may perform treatment procedures with laser devices.

          B. The board shall issue certification for the use of laser treatment devices. To be certified in the use of laser treatment devices, an optometrist shall:

                (1) be currently certified by the board in the use of topical pharmaceutical agents;

                (2) be currently certified by the board in the use of oral pharmaceutical agents;

                (3) submit to the board proof of having satisfactorily completed a course in laser treatment as applied to optometry with particular emphasis on the biophysics of lasers; laser application in clinical optometry; laser hazards and laser safety standards; laser indications, contraindications and potential complications; and supervised competent performance of laser procedures in a clinical treatment setting. The course shall be administered by an accredited institution approved by the board; and

                (4) submit to the board proof of having complied with any additional requirements of the United States food and drug administration for the use of a specific laser device.

          C. The certification authorized by this section shall be displayed in a conspicuous place in the optometrist's principal office or place of business."

     Section 4. Section 61-2-14 NMSA 1978 (being Laws 1973, Chapter 353, Section 12, as amended) is amended to read:

     "61-2-14. OFFENSES.--

          A. A person who commits one of the following acts is guilty of a fourth degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978:

                (1) practicing or attempting to practice optometry without a valid current license issued by the board;

                (2) using or attempting to use a topical ocular pharmaceutical agent or an oral pharmaceutical agent that is regulated pursuant to the provisions of the New Mexico Drug, Device and Cosmetic Act without having the certification for its use issued by the board, unless the administration of pharmaceutical agents is done under the direct supervision of a licensed optometrist certified to administer the pharmaceutical agents in accordance with the provisions of the Optometry Act; [or]

                (3) using or attempting to use laser treatment devices without having a certification for its use issued by the board; or

                [(3)] (4) permitting a person in one's employ, supervision or control to practice optometry, [or] use pharmaceutical agents described in Paragraph (2) of this subsection, or use a laser treatment device, unless that person is licensed and certified in accordance with the provisions of the Optometry Act or unless the administration of pharmaceutical agents is done under the direct supervision of a licensed optometrist certified to administer the pharmaceutical agents in accordance with the provisions of the Optometry Act.

          B. A person who commits one of the following acts is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978:

                (1) making a willfully false oath or affirmation where the oath or affirmation is required by the Optometry Act;

                (2) selling or using any designation, diploma or certificate tending to imply that one is a practitioner of optometry, unless one holds a license as provided by the Optometry Act;

                (3) refusing, after a request, to provide a patient a copy of [his] the patient's eyeglasses prescription, if the prescription is not over one year old;

                (4) duplicating or replacing an ophthalmic lens without a current prescription not more than two years old or without a written authorization from the patient if the prescription is not available;

                (5) except for licensed optometrists, using any trial lenses, trial frames, graduated test cards or other appliances or instruments for the purpose of examining the eyes or rendering assistance to anyone who desires to have an examination of the eyes, but it is not the intent of this paragraph to prevent [any] a school nurse, schoolteacher or employee in public service from ascertaining the possible need of vision services, if the person, clinic or program does not attempt to diagnose or prescribe ophthalmic lenses for the eyes or recommend any particular practitioner or system of practice;

                (6) advertising the fabricating, adapting, employing, providing, sale or duplication of eyeglasses or any part [thereof] of them, but this paragraph does not preclude the use of a business name, trade name or trademark not relating to price or the use of the address, telephone number, office hours and designation of the provider, in or at retail outlets, on business cards, eyeglass cleaners and cases or in news media or in public directories, mailings and announcements of location openings or the use of the words "doctors' prescriptions for eyeglasses filled" or "eyeglass repairs, replacements and adjustments"; or

                (7) selling of prescription eyeglasses or contact lenses, frames or mountings for lenses in an establishment in which the majority of its income is not derived from being engaged in that endeavor."

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