44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO BOARDS AND LICENSING; PROVIDING FOR IMPROVED REGULATION OF THE PRACTICE OF OPTOMETRY; AMENDING, REPEALING AND ENACTING SECTIONS OF THE OPTOMETRY ACT.

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" means:

(1) the employment of any subjective or objective means or methods, including the prescription or administration of topical ocular pharmaceutical agents, for the purpose of determining the visual defects or abnormal conditions of the human eye and its adnexa; [and]

(2) the employing, adapting or prescribing of preventive or corrective measures, including lenses, prisms, scleral or corneal contact [or corneal] lenses or other optical appliances, vision therapy and low vision rehabilitation; and prescribing or administering topical ocular pharmaceutical agents as authorized in the Optometry Act and oral pharmaceutical agents as authorized in [Section 61-2-10.2 NMSA 1978] that act for the correction, relief or referral of visual defects or abnormal conditions of the human eye and its adnexa. The "practice of optometry" shall not include the use of surgery or injections in the treatment of eye diseases; [provided, persons who sell or dispense eyeglasses upon prescription and who do not prescribe ophthalmic lenses for the eyes shall not employ, adapt, dispense, modify, provide, sell, give or fit contact or corneal lenses; and provided further, the testing, design, dispensing and monitoring of a contact lens fitting shall be performed at the optometrist's place of practice]; and

(3) the employing, adapting, dispensing, modifying, providing, selling, giving, fitting, duplicating or prescribing any kind of scleral or corneal contact lens;

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

[C. "contact or corneal lens" means any lens to be worn on the anterior segment of the human eye, to be prescribed, dispensed, adapted, employed, modified, provided, sold and fitted by a licensed optometrist or physician;

D. "prescription" means a formula written for ophthalmic lenses, for a topical ocular pharmaceutical agent or for an oral pharmaceutical agent as authorized in Section

61-2-10.2 NMSA 1978 that comes under the provisions of the New Mexico Drug, Device and Cosmetic Act by a person duly licensed and containing the following essential elements:

(1) an order given individually for the person for whom prescribed, either directly from the prescriber to the pharmacist or indirectly by means of a written order signed by the prescriber, and shall bear the name and address of the prescriber, his license classification, the name and address of the patient, the name and quantity of the drug prescribed, directions for use and the date of issue; or

(2) dioptric power of spheres, cylinders and prisms, axes of cylinders, position of prism base and, if so desired by the prescriber, light transmission properties and lens curve values;

(3) designation of pupillary distance; and

(4) name of patient, date of prescription, expiration date and the name and office location of prescriber; provided, however, that:

(5) those who sell and dispense eyeglasses upon the written prescription of a physician, surgeon or optometrist may determine the:

(a) type, form, size and shape of ophthalmic lenses;

(b) placement of optical centers for distance-seeing and near-work;

(c) designation of type and placement of reading segments in multivision lenses;

(d) type and quality of frame or mounting, type of bridge and distance between lenses, type, length and angling of temples; and

(e) designation of pupillary distance]

C. "scleral or corneal contact lens" means any type of lens, plano or colored, to be worn on the anterior segment of the human eye, all of which may only be prescribed, dispensed, adapted, employed, modified, provided, sold and fitted by a licensed optometrist or medical osteopathic physician;

D. "prescription" means a formula written by a person with a prescriptive authority for ophthalmic lenses, for scleral or corneal contact lenses, including plano or colored lenses, for a topical ocular pharmaceutical agent or for an oral pharmaceutical agent that is authorized in the Optometry Act, that comes under the provisions of the New Mexico Drug, Device and Cosmetic Act and that contains essential elements as set forth by the board;

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

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

Section 2. Section 61-2-4 NMSA 1978 (being Laws 1973, Chapter 353, Section 3) is amended to read:

"61-2-4. LICENSE REQUIRED.--Unless licensed or exempted under the Optometry Act, no person shall:

A. practice optometry;

B. represent himself or offer his services as [being able] licensed to practice optometry or use the title of optometrist, its abbreviation signs or symbols of optometry;

C. prescribe eyeglasses or give [a] an eyeglass prescription to a patient; [or]

D. duplicate or replace an ophthalmic lens [not including contact lenses, without a current prescription or without a written authorization from the patient if the prescription is not available]; or

E. use, adapt, dispense, modify, provide, sell, give, fit or duplicate scleral or corneal contact lenses, including plano or colored lenses."

Section 3. Section 61-2-5 NMSA 1978 (being Laws 1973, Chapter 353, Section 4, as amended) is amended to read:

"61-2-5. BOARD CREATED--TERMS--APPOINTMENT--CONTINUANCE--REMOVAL.--

A. There is created a six-member "board of optometry" composed of [four persons who] New Mexico residents, four of whom have resided in and have been continuously engaged in the practice of optometry in New Mexico for at least five years immediately prior to their appointment and two persons who shall represent the public. The public members of the board shall not have been licensed as an optometrist, nor shall the public members have any significant financial interest, whether direct or indirect, in the occupation regulated.

B. Professional members of the board shall be appointed by the governor from a list of five names for each vacancy submitted to him by the state organization affiliated with the American optometric association. Not more than one professional board member shall maintain his place of business or reside in any one county, and professional appointments shall be made on a geographical basis to effect representation of all areas of the state. Board members shall be appointed for staggered terms of five years or less, each. The [terms] term of each board member shall be made in such a manner that the term of one board member ends on June 30 of each year. Board members shall serve until their successors have been appointed and qualified. A professional member vacancy shall be filled for the unexpired term by the appointment by the governor of a licensed optometrist from the general area of the state represented by the former member. All members of the board of optometry in office on the effective date of the Optometry Act shall serve out their unexpired terms.

C. The governor may remove any member from the board for the neglect of any duty required by law, for incompetence, for improper or unprofessional conduct as defined by board regulation or for any reason that would justify the suspension or revocation of his license to practice optometry.

D. No board member shall serve more than two consecutive terms, and any member failing to attend, after proper notice, three consecutive meetings shall automatically be removed as a board member unless excused for reasons set forth in board regulations.

E. In the event of a vacancy for any reason, the board secretary shall immediately notify the governor, the board members and the state optometric association of the vacancy, the reason for its occurrence and the action taken by the board, so as to expedite the appointment of a new board member."

Section 4. Section 61-2-6 NMSA 1978 (being Laws 1973, Chapter 353, Section 5, as amended) is amended to read:

"61-2-6. ORGANIZATION--MEETINGS--COMPENSATION--POWERS AND DUTIES.--

A. The board shall annually elect a chairman, a vice chairman and a secretary-treasurer, [each of whom] who shall serve until his successor is elected and qualified.

B. The board shall meet at least annually for the purpose of examining candidates for licensure. Special meetings may be called by the chairman and shall be called upon the written request of a majority of the board members. A majority of the board members currently serving constitutes a quorum.

C. Members of the board may be reimbursed as provided in the Per Diem and Mileage Act but shall receive no other compensation, perquisite or allowance.

D. The board shall:

(1) administer and enforce the provisions of the Optometry Act;

(2) adopt, publish and file, in accordance with the Uniform Licensing Act and the State Rules Act, all rules and regulations for the implementation and enforcement of the provisions of the Optometry Act;

(3) adopt and use a seal;

(4) administer oaths and take testimony on any matters within the board's jurisdiction;

(5) keep an accurate record of all its meetings, receipts and disbursements;

(6) establish fees, examine candidates and keep a record of all examinations held, together with the names and addresses of all persons taking the examinations and the examination results. Within thirty days after any examination, the board shall give written notice to each applicant examined of the results of the examination as to the respective applicant;

(7) certify as passing each applicant who obtains a grade of at least seventy-five percent on each subject upon which he is examined; providing that any applicant failing may apply for re-examination at the next scheduled examination date;

(8) keep a book of registration in which the name, address and license number of all licensees shall be recorded, together with a record of all license renewals, suspensions and revocations;

(9) grant, deny, renew, suspend or revoke licenses to practice optometry in accordance with the provisions of the Uniform Licensing Act for any cause stated in the Optometry Act;

(10) develop and administer qualifications for certification for the use of topical ocular pharmaceutical agents and oral pharmaceutical agents as authorized in Section 61-2-10.2 NMSA 1978, including minimum educational requirements and examination, as required by Section 61-2-10 NMSA 1978 and provide the board of pharmacy with an annual list of optometrists certified to use topical ocular pharmaceutical agents and oral pharmaceutical agents as authorized in Section 61-2-10.2 NMSA 1978;

(11) provide for the suspension of an optometrist's license for sixty days upon a determination of use of pharmaceutical agents without prior certification in accordance with Section 61-2-10 NMSA 1978, after proper notice and an opportunity to be heard before the board; [and]

(12) have the power to employ agents or attorneys; and

(13) issue investigative subpoenas to investigate complaints against licensees pursuant to board rules prior to the issuance of a notice of contemplated action pursuant to the Uniform Licensing Act."

Section 5. Section 61-2-7 NMSA 1978 (being Laws 1973, Chapter 353, Section 6) is amended to read:

"61-2-7. DISPOSITION OF FUNDS--OPTOMETRY FUND CREATED--METHOD OF PAYMENTS--BONDS.--

A. There is created the "optometry fund".

B. All funds received by the board and money collected under the Optometry Act shall be deposited with the state treasurer, who shall place the [same] funds and money to the credit of the optometry fund.

C. All payments out of the optometry fund shall be made on vouchers issued and signed by the secretary-treasurer of the board, or the board's designee, upon warrants drawn by the department of finance and administration in accordance with the budget approved by that department.

D. All amounts in the optometry fund shall be subject to the order of the board and shall be used only for the purpose of meeting necessary expenses incurred in:

(1) the performance of the provisions of the Optometry Act and the duties and powers imposed [thereby] by that act; and

(2) the promotion of optometric education and standards in this state within the budgetary limits.

E. All funds which may have accumulated to the credit of the board under any previous law shall be transferred to the optometry fund and shall continue to be available for use by the [optometry] board in accordance with the provisions of the Optometry Act. All money unused at the end of the fiscal year shall not revert but shall remain in the optometry fund for use in accordance with the provisions of the Optometry Act.

[F. The secretary-treasurer and any employee who handles money or who certifies the receipt or disbursal of money received by the board shall, within thirty days after election or employment by the board, execute a bond in accordance with the provisions of the Surety Bond Act, conditioned on the faithful performance of the duties of the office or position and on an accounting of all funds coming into his hands.

G. The secretary-treasurer shall make, at the end of each fiscal year, an itemized report to the governor of all receipts and disbursements of the board for the prior fiscal year, together with a report of the records and information required by the Optometry Act. A copy of the annual report to the governor shall be presented to the board at its first meeting in July of each year.]"

Section 6. Section 61-2-8 NMSA 1978 (being Laws 1973, Chapter 353, Section 7) is amended to read:

"61-2-8. QUALIFICATIONS FOR LICENSURE AS AN OPTOMETRIST.--Each applicant for licensure as an optometrist shall furnish evidence satisfactory to the board that the applicant:

A. has reached the age of majority;

B. is of good moral character and of temperate habits;

C. has completed [at least an approved four-year high school course of study or the equivalent thereof as determined by regulations of the board is a citizen of the United States or has taken out his first naturalization papers; and] a pre-optometry curriculum as required by schools or colleges of optometry approved by the board;

D. has completed the required education for therapeutics pursuant to the Optometry Act;

E. has graduated and been awarded a doctor of optometry degree from a school or college of optometry approved and accredited by the board [and]. In the event the applicant applies for licensure by endorsement, he shall have been awarded a doctor of optometry degree from a school or college of optometry, approved and accredited by the board, which had a minimum course of study of four thousand clock hours of instruction leading to [such] that degree; and

F. has successfully completed the examinations required by the board."

Section 7. Section 61-2-9 NMSA 1978 (being Laws 1973, Chapter 353, Section 8) is amended to read:

"61-2-9. LICENSURE BY EXAMINATION--LICENSURE BY ENDORSEMENT.--

A. The board shall adopt rules for application and licensure by examination and by endorsement. An applicant meeting the qualifications set forth in Section [67-1-7 NMSA 1953] 61-2-8 NMSA 1978 shall:

(1) for licensure by examination file his application under oath on forms supplied by the board for an examination by the board. The examination shall be confined to the subjects within the curriculum of colleges of optometry approved and accredited by the board and shall include written tests and practical demonstrations and may include oral tests; or

(2) for licensure by endorsement file his application under oath on forms supplied by the board which conform to board regulations on endorsement and furnish proof satisfactory to the board of his having been licensed by examination in another state which had qualifications equal to or exceeding those required in this state on the date of his original licensure [and satisfying the board that he holds a doctor of optometry degree, from a school or college approved and accredited by the board, which was obtained after the completion of a course of study with a minimum of four thousand clock hours of instruction]. The applicant [must] shall have been actively engaged in the practice of optometry in the state of licensure or in federal service for seven consecutive years immediately prior to the year in which application is made [This proof] and met continuing education requirements equal to or exceeding New Mexico's during that period. Proof of having met the requirements shall be accepted in lieu of the written portion of the examination. Applicants for licensure without written examination shall be examined to the satisfaction of the board by practical, oral and clinical demonstration in the presence of a majority of the board, and a detailed record, including the score of [such] the examination shall be kept and made available to the applicant at his request.

B. All applicants successfully passing the examinations shall be issued a license and certificate by the board upon payment of the license [fee] and certification fees."

Section 8. Section 61-2-10 NMSA 1978 (being Laws 1977, Chapter 30, Section 3, as amended) is amended to read:

"61-2-10. CERTIFICATION FOR USE OF TOPICAL OCULAR PHARMACEUTICAL AGENTS--DISPLAY.--

A. The board shall issue certification for the use of topical ocular pharmaceutical agents to optometrists licensed [on the effective date of this section] prior to June 17, 1977 who have completed appropriate forms issued by the board and submitted proof of successful completion of the educational requirements for certification established by the board, which requirements shall be not less than those required in Paragraph (2) of Subsection B of this section.

B. The board shall issue certification for the use of topical ocular pharmaceutical agents to optometrists licensed after [the effective date of this section] June 17, 1977 who have completed appropriate forms issued by the board and submitted proof of:

(1) having satisfactorily completed a course in pharmacology as applied to optometry with particular emphasis on the topical application of diagnostic pharmaceutical agents to the eye for the purpose of examination of the human eye and the analysis of ocular functions, which course is offered by an institution accredited by a regional or professional accreditation organization recognized or approved by the national commission on accrediting or the United States secretary of education; or

(2) having postgraduate education with a minimum of seventy hours of instruction in general and ocular pharmacology as applied to optometry taught by an accredited institution and approved by the board.

C. The board shall issue certification for the use of topical ocular pharmaceutical agents to optometrists who have successfully completed an examination and submitted proof of having satisfactorily completed a course in pharmacology as applied to optometry, with particular emphasis on the application of pharmaceutical agents for the purpose of examination of the human eye, 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 one hundred classroom-clinical hours of instruction in general and ocular pharmacology, including therapeutic pharmacology as applied to optometry, and shall be taught by an accredited institution and approved by the board.

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

Section 9. Section 61-2-12 NMSA 1978 (being Laws 1973, Chapter 353, Section 10, as amended) is amended to read:

"61-2-12. LICENSE--DISPLAY--RENEWAL--RETIREMENT--RESUMPTION OF PRACTICE.--

A. Every person to whom a certificate of license as an optometrist has been issued shall display the certificate of license in a conspicuous place in his principal office or place of business.

[B. Each license shall be renewed annually on or before July 1 by the licensee remitting to the secretary-treasurer of the board the proper fee and proofs of registration with the revenue processing division of the taxation and revenue department and of continued education as required by regulation of the board. Notice of renewal shall be sent to each licensee by the board before July 1 of each year. Failure to renew his license on or before September 1 shall subject the licensee to a late charge as determined by regulation of the board not to exceed the limit set forth in the Optometry Act. Any license not renewed by October 1 of each year shall be automatically revoked. Upon receipt of the renewal certificate, each licensee shall attach a copy of the renewal certificate to his certificate of license. Each optometrist applying for the renewal of his license shall furnish to the secretary-treasurer of the board satisfactory evidence that he has attended, in the preceding year, at least two days of the annual education program, to include a minimum of six credit hours of continuing education in ocular therapeutic pharmacological agents, as conducted by the New Mexico optometric association, or its equivalent as determined by the board. The secretary-treasurer shall send a written notice of the continuing education requirements at least thirty days prior to August 1 of each year to the last known address of the licensee. Failure of a licensee to meet annual postgraduate education requirements shall be grounds for the revocation of his license. Any license revoked because of the failure to meet the continuing education requirements shall be reinstated by the board upon the presentation of evidence of postgraduate study of a standard approved by the board and the payment of all fees due.]

B. A license to practice optometry is for one year, renewable by the board on or before July 1 of each year, pursuant to rules of the board.

C. Upon expiration of a license, the licensee may continue to practice optometry for no more than thirty days following expiration. The board shall adopt regulations for reactivation of an expired license. Failure to renew or reactivate an expired license during the thirty-day grace period shall result in expiration of the license and the therapeutic certificate. The board shall adopt rules for reinstatement of a license. A licensee's license shall lapse if not renewed within two years of its expiration. An applicant whose license has lapsed shall meet all licensure requirements in effect at the time of reapplication in order to practice optometry again.

D. Any optometrist who intends to retire from the practice of optometry shall notify the board in writing before the expiration of his renewal of licensure, and the secretary-treasurer of the board shall acknowledge the receipt of the notice and record it as part of the proceedings of the next board meeting. If within a period of five years from the year of retirement the optometrist desires to resume practice, he shall so notify the board in writing, and, upon giving proof of completing refresher courses and other requirements prescribed by regulation of the board and the payment of an amount equivalent to all lapsed renewal fees, his certificate of license shall be restored to him in full effect. Any optometrist not currently licensed because of failure to timely renew, because of retirement or for any other reason, who practices optometry in this state shall be subject to the penalties provided for violation of the Optometry Act.

E. Before engaging in the practice of optometry and after a license has been issued to him, each [registered] licensed optometrist shall notify the secretary-treasurer of the board in writing of the address at which he intends to begin practice and subsequently of any changes in his business address or location. Any notices the board is required to give a licensee shall legally have been given when delivered to the latest address furnished by the licensee to the board."

Section 10. Section 61-2-13 NMSA 1978 (being Laws 1973, Chapter 353, Section 11) is amended to read:

"61-2-13. [REFUSAL, SUSPENSION OR REVOCATION OF LICENSE] DISCIPLINARY PROCEEDINGS.--[The board may refuse to issue, suspend or revoke any license, in accordance with the provisions of the Uniform Licensing Act, for any of the following reasons] Pursuant to the Uniform Licensing Act and rules of the board, the board may take any disciplinary action against a licensee for:

A. conclusive evidence of conviction of a felony as shown by a certified copy of the record of the court of conviction;

B. malpractice or incompetence;

C. continued practice by a person knowingly having an infectious or contagious disease;

[D. advertising by means of knowingly false, misleading or deceptive statements or advertising or attempting to practice under a name other than one's own] D. making false, misleading or fraudulent claims, attempting to attract patients in an unethical manner or failing to use the appropriate professional designation pursuant to the Advertisement of Health Care Services Act or board rule;

E. habitual drunkenness or addiction to the use of habit-forming drugs or other condition that renders the licensee or applicant unfit or unable to practice optometry;

F. aiding or abetting in the practice of optometry any person not duly licensed to practice optometry in this state;

G. lending, leasing or in any other manner placing his certificate of license at the disposal or in the service of any person not licensed to practice optometry in this state;

H. employing, procuring or inducing an unlicensed person to practice optometry in this state, unless that person is exempted pursuant to the Optometry Act;

I. violating any of the provisions of the Optometry Act or rules adopted by the board; [or]

J. committing any act defined as "unprofessional conduct" by regulation of the board filed in accordance with the State Rules Act. Without limiting the right of the board to determine what acts on the part of a licensee constitute unprofessional conduct, the following acts shall be deemed to be unprofessional conduct:

(1) any conduct of a character tending to deceive or defraud the public;

(2) the obtaining of a fee by fraud or misrepresentation;

(3) charging unusual, unreasonable or [exhorbitant] exorbitant fees;

(4) ["splitting" or] dividing a fee with any person;

(5) advertising professional superiority;

[(6) advertising by any means or granting a discount for professional services, prosthetic devices, eyeglasses, lenses, frames or mountings, whether sold separately or as part of the professional services; or

[(7) using any type of price advertising which would tend to imply the furnishing of professional services without cost or at a reduced cost to the public]

(6) marketing in a manner that implies free services;

(7) breach of patient confidentiality; or

(8) sexual misconduct with a patient;

K. using fraud or deceit in procuring or attempting to procure a license or in the course of applying for a license renewal;

L. refusal to provide a copy of an eyeglass prescription less than one year old to a patient;

M. duplicating or replacing an ophthalmic lens with a prescription more than two years old;

N. testing, designing or providing care of scleral or corneal contact lenses, including plano or colored lenses, at a location unapproved by the board;

O. violating the New Mexico Controlled Substances Act;

P. revocation, suspension or denial of a license or certification to practice optometry by any jurisdiction for actions by the licensee that would be subject to disciplinary action by the board, a certified copy of the record of the action taken by another jurisdiction being conclusive evidence;

Q. practicing or attempting to practice optometry without a current license issued by the board;

R. willfully making a false oath or affirmation;

S. failure to furnish the board with information requested by the board pursuant to an investigation; or

T. selling prescription eyeglasses or scleral or corneal contact lenses, including plano or colored lenses, frames or mountings for lenses in an establishment that derives most of its income from other business."

Section 11. Section 61-2-14 NMSA 1978 (being Laws 1973, Chapter 353, Section 12, as amended) is amended to read:

"61-2-14. OFFENSES.--

A. Each of the following acts committed by any person constitutes a fourth degree felony, punishable upon conviction as provided in the Criminal Code:

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

(2) using or attempting to use pharmaceutical agents without the certification issued by the board, unless [however] 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;

(3) permitting any person in one's employ, supervision or control to practice optometry or use pharmaceutical agents 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; and

(4) practicing optometry, including the use of pharmaceutical agents, during any period of time in which one's license has been revoked or suspended as provided by the Optometry Act.

B. Each of the following acts committed by any person constitutes a misdemeanor, punishable upon conviction as provided in the Criminal Code:

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

(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) refusal, after a request, to provide a patient a copy of his spectacle prescription, not including a contact lens prescription, providing the prescription is not over one year old;

(4)] (3) duplicating or replacing an ophthalmic lens [not including contact lenses] for eyeglasses without a current prescription not more than two years old or without a written authorization from the patient if the prescription is not available; or

[(5)] (4) except for licensed optometrists and as provided in Subsection A of Section 61-2-15 NMSA 1978, 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 [provided, however, that it is not the intent of this paragraph to prevent any school nurse, schoolteacher or employee in public service from ascertaining the possible need of vision services, provided that such 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 by any means the fabricating, adapting, employing, providing, sale or duplication of eyeglasses or any part thereof. 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]."

Section 12. Section 61-2-15 NMSA 1978 (being Laws 1973, Chapter 353, Section 13) is amended to read:

"61-2-15. EXEMPTIONS.--

A. Nothing in the Optometry Act, except as provided in Section [67-1-14 NMSA 1953] 61-2-16 NMSA 1978, shall be construed to apply to licensed physicians or surgeons or persons, clinics or programs under their responsible supervision and control. Persons, clinics and programs under the responsible supervision and control of a licensed physician or surgeon shall not use either loose or fixed trial lenses for the sole purpose of determining the prescription for eyeglasses or scleral or corneal contact lenses. [The fitting of a contact lens to a patient shall be done at the practitioner's place of practice.

B. Nothing in the Optometry Act, except as provided in Sections 67-1-2, 67-1-12, 67-1-14 and 67-1-15 NMSA 1953, shall be construed to apply to persons selling eyeglasses who do not represent themselves as being qualified to detect or correct ocular anomalies and who do not traffic upon assumed skill in adapting opthalmic lenses to the eyes.] B. Nothing in the Optometry Act shall prevent opticians from filling eyeglass prescriptions or selling eyeglasses if they do not represent themselves as qualified to detect or correct ocular anomalies or to practice optometry.

C. Nothing in the Optometry Act shall prohibit a school nurse, school teacher or public service employee from ascertaining the potential need for vision services if the person does not attempt to diagnose or prescribe ophthalmic lenses or recommend a particular practitioner or system of practice."