46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO OPTOMETRY; ALLOWING PATIENTS TO HAVE COPIES OF THEIR CONTACT OR CORNEAL LENS PRESCRIPTION; AMENDING AND ENACTING CERTAIN SECTIONS OF THE OPTOMETRY ACT RELATING TO CONTACT OR CORNEAL LENSES.

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] employing of [any] a subjective or objective means or [methods] method, 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, contact or corneal lenses or other optical appliances; and prescribing or administering topical ocular pharmaceutical agents and oral pharmaceutical agents as authorized in Section 61-2-10.2 NMSA 1978 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 that 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 that the testing, design, dispensing and monitoring of a contact lens fitting shall be performed at the optometrist's place of practice;

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] a lens to be worn on the anterior segment of the human eye, [to be] that is prescribed, [dispensed] adapted, employed, modified [provided, sold] and fitted by a licensed optometrist or physician;

D. "prescription" means a formula written for ophthalmic lenses or contact or corneal 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];

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; and

G. "seller" means a person who sells contact or corneal lenses pursuant to a prescription after final fitting by an optometrist or physician."

Section 2. A new section of the Optometry Act is enacted to read:

"[NEW MATERIAL] CONTACT OR CORNEAL LENS--ADDITIONAL

PRESCRIPTION REQUIREMENTS--NOTICE TO PATIENTS--WRITTEN VALIDATION OF AGENCY BY SELLER.--

A. A prescription for a contact or corneal lens shall be determined after a comprehensive eye examination and diagnostic lens fitting and after the contact or corneal lens has been adequately adapted and the patient has been released from the initial follow-up care by the prescribing optometrist or physician. Prescriptions shall be issued only for a contact or corneal lens the optometrist or physician has assessed clinically. A prescription shall include:

(1) a specific expiration date not less than twenty-four months after the date of the prescription, unless a shorter period is warranted by the patient's ocular health or by potential harm to the patient's ocular health;

(2) the signature of the optometrist or physician; and

(3) any special design features that may be applicable.

B. After final fitting, and absent any medical reason to the contrary, the contact or corneal lens prescription shall be given to the patient at his request.

C. Optometrists and physicians shall display in a prominent location in their offices a sign to inform their patients that they have the right to request a copy of their prescription.

D. An optometrist or physician shall verify the validity and content of a contact or corneal lens prescription by written means to a seller who represents that the patient has authorized the seller to act as his agent."

Section 3. 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 to practice optometry;

C. prescribe eyeglasses or give a prescription to a patient; or

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

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. 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;

(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] if the prescription is not over [one year] two years old;

(4) duplicating or replacing an ophthalmic lens [not including] or contact [lenses] or corneal 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 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] if the person, clinic or program does not attempt to diagnose or prescribe ophthalmic lenses or contact or corneal 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 or corneal 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 5. 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 contact or corneal 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] 61-2-2, 61-2-14, 61-2-16 and 61-2-17 NMSA 1978, 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] ophthalmic lenses to the eyes."