H 3587 Session 112 (1997-1998)
H 3587 General Bill, By Quinn
Similar(S 489)
A BILL TO AMEND TITLE 40, CHAPTER 38, AS AMENDED, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO OPTICIANS, SO AS TO CONFORM THIS CHAPTER TO THE
STATUTORY ORGANIZATIONAL AND ADMINISTRATIVE FRAMEWORK ESTABLISHED FOR
PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS IN CHAPTER 1, TITLE 40, AND TO
FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF OPTICIANS INCLUDING
INCREASING CONTINUING EDUCATION REQUIREMENTS FROM THREE HOURS TO FOUR HOURS
FOR A LICENSED OPTICIAN AND AN ADDITIONAL HOUR FOR AN OPTICIAN ALSO LICENSED
TO DISPENSE CONTACT LENSES.
03/03/97 House Introduced and read first time HJ-10
03/03/97 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-10
A BILL
TO AMEND TITLE 40, CHAPTER 38, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO
OPTICIANS, SO AS TO CONFORM THIS CHAPTER TO THE
STATUTORY ORGANIZATIONAL AND ADMINISTRATIVE
FRAMEWORK ESTABLISHED FOR PROFESSIONAL AND
OCCUPATIONAL LICENSING BOARDS IN CHAPTER 1, TITLE
40, AND TO FURTHER PROVIDE FOR THE LICENSURE AND
REGULATION OF OPTICIANS INCLUDING INCREASING
CONTINUING EDUCATION REQUIREMENTS FROM THREE
HOURS TO FOUR HOURS FOR A LICENSED OPTICIAN AND
AN ADDITIONAL HOUR FOR AN OPTICIAN ALSO LICENSED
TO DISPENSE CONTACT LENSES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 38, Title 40 of the 1976 Code is amended to
read:
"CHAPTER 38
Opticians
Section 40-38-10. As used in this chapter, `optician'
means one who prepares and dispenses lenses, spectacles, eyeglasses,
and appurtenances to the intended wearers on prescriptions from
physicians or optometrists duly licensed to practice their professions,
and in accordance with such prescriptions mechanically interprets,
measures, adapts, fits, and adjusts such lenses, spectacles, eyeglasses,
and appurtenances to the human face for the aid or correction of
visual or ocular anomalies of the human eye. Oral prescriptions are
permitted provided a written record is made and filed by the optician.
The services and appliances related to ophthalmic dispensing shall be
dispensed, furnished, or supplied to the intended wearer or user only
upon prescription issued by a physician or an optometrist; but
duplications, replacements, reproductions, or repetitions may be done
without prescription, in which event any such act shall be construed
to be ophthalmic dispensing, the same as if performed on the basis of
a written prescription; provided, however, contact lens shall only be
dispensed in accordance with Section 40-38-150. Any person shall
be deemed to be practicing opticianry within the meaning of this
chapter who displays a sign or in any way advertises himself to be an
optician.
Section 40-38-20. It shall be unlawful for any
person to engage in the practice of opticianry in this State unless such
person has obtained a certificate of registration from the South
Carolina Board of Examiners in Opticianry. This chapter shall not
apply to physicians licensed under the laws of this State for the
practice of medicine or osteopathy, nor to optometrists licensed under
the laws of this State to practice optometry, nor persons who sell as
merchandise from a regular established place of business ready-made
eyeglasses or spectacles if such person shall not aid the purchaser in
the fitting thereof.
Section 40-38-30. There is created the South
Carolina Board of Examiners in Opticianry (board) which shall
consist of seven members. Five members shall be licensed opticians
appointed by the Governor upon nomination by all licensed opticians
in this State through an election conducted by the board. The
Governor may reject any or all of those nominated upon satisfactory
showing as to the unfitness of those rejected. If the Governor
declines to appoint any of such nominees so submitted, additional
nominees shall be submitted in the same manner. Vacancies shall be
filled in like manner by appointment by the Governor for the
unexpired portion of the term. Two members of the board shall be
members of the general public who do not derive their income or
support from any optical or related business or who are not related to
any members of these professions. These public members shall be
nominated by any individual, group, or association, and appointed by
the Governor.
The board shall be responsible for examining applicants for
licenses in opticianry, for investigating complaints, and for
investigating and prosecuting violations of this chapter.
The members of the board shall be appointed for terms of
four years and until their successors are appointed and qualify. No
person may serve more than two consecutive four-year terms on the
board, except that if any person is appointed to fill an unexpired term
on the board, he may be reappointed for two additional four-year
terms. The Governor may remove any member of the board who has
been guilty of continued neglect of his duties or who is found to be
incompetent, unprofessional or dishonorable. No member shall be
removed without first giving him an opportunity to refute the charges
filed against him. He shall be given a copy of the charges at the time
they are filed.
Section 40-38-40. The members of the board shall
qualify by taking the oath of office before a notary public or other
officer empowered to administer oaths. At the first board meeting,
after each annual appointment, it shall elect a president, vice
president and secretary-treasurer. A majority of its members shall
constitute a quorum. Regular meetings shall be held at least once a
year at such time and place as shall be deemed most convenient.
Special meetings may be held upon the call of the president.
If a board member is disqualified and his absence results in
the lack of a quorum or an adequate number of members to perform
official functions, the Governor may deputize an individual to replace
him during the period of disqualification. The deputized individual
must take the same oath as required of other members of the board.
Section 40-38-50. Each member may receive for
his services such per diem and mileage as is provided by law for
members of state boards, commissions or committees for each day
actually engaged in the duties of his office, including a reasonable
number of days for the preparation and reviewing of examinations,
in addition to such time actually spent in conducting examinations.
Section 40-38-60. The board may promulgate
regulations and bylaws for its own proceedings and government and
for the practice of opticianry and examination of applicants for the
practice of opticianry.
The board or any member may administer oaths for all
purposes requiring the discharge of its duties. For the purpose of any
investigation or proceeding under the provisions of this chapter, the
board or any person designated by it may subpoena witnesses, take
evidence, and require the production of any documents or records
which it deems relevant to the inquiry. In the case of contumacy by
or refusal to obey a subpoena issued to any person, an administrative
law judge as provided under Article 5 of Chapter 23 of Title 1, upon
application of the board, may issue an order requiring the person to
appear before the board, or a person designated by it, and produce
documentary evidence, and to give other evidence concerning the
matter under inquiry.
Section 40-38-70. It is unlawful for a person to
disseminate, directly or indirectly, or cause to be disseminated any
untruthful, deceptive advertisement or representation concerning eye
examinations, ophthalmic goods, ophthalmic services, or the practice
of opticianry. In addition, it is unlawful for a person, partnership, or
corporation to disseminate, directly or indirectly, or cause to be
disseminated any untruthful, impossible, improbable, misleading, or
deceptive advertisement or representation concerning the terms,
guarantee, or warranty which relates to the procurement of
ophthalmic goods or services.
It is unlawful for a person to offer or give eye
examinations, eyeglasses, spectacles, lenses, or any part used in
connection with them as a premium or bonus with merchandise or in
any other manner to induce trade. The provisions of this section do
not prohibit giving ophthalmic products incidental to the use of the
product being offered nor the offering of a reduced price, sale, or
discount on purchases if the following disclosures are made with the
offer:
(a) If the offered price is represented as being
a reduced price, sale price, or discounted price, the offer shall
disclose whether the reduced price, sale price, or discounted price is
from the offeror's regular selling price, or shall disclose any other
price and its source which serves as the standard from which the
offeror represents the offered price as being a reduced price, sale
price, or discounted price.
(b) The date the offer terminates.
It is unlawful for a person to disseminate price information
concerning ophthalmic goods and services without including:
(a) Whether an advertised price for eyeglasses
includes single vision or multi-focal lenses;
(b) Whether an advertised price for contact
lenses refers to hard or soft contact lenses;
(c) Whether an advertised price for ophthalmic
materials includes all dispensing fees;
(d) Whether an advertised price for ophthalmic
materials includes an eye examination;
(e) Whether an advertised price for eyeglasses
includes both frame and lenses.
The board has no authority to make regulations governing
the employment of opticians, the location of optical stores, the
number of optical stores operated, the advertising of optical products
or services, or the manner in which these products can be displayed.
Nothing in this chapter prevents opticians from using
third-party solicitation which does not involve uninvited, in-person
solicitation of persons who, because of their particular circumstances,
may be vulnerable to undue influences.
Section 40-38-80. Dispensing opticians may hold
themselves out as doing business and may advertise under their
corporate name, trade name, or as successor to another optician in the
State and the board shall make no regulations restricting these rights.
Section 40-38-90. All revenues and income from
licenses, examination fees, other fees, sale of commodities and
services, and income derived from any board source or activity shall
be remitted to the State Treasurer as collected, when practicable, but
at least once each week, and shall be credited to the general fund of
the State. All assessments, fees or licenses shall be levied in an
amount sufficient to at least equal the amount appropriated in the
annual general appropriation act for the board.
Section 40-38-100. The board shall make an
annual report according to the provisions of Chapter 73 of Title 40 of
the 1976 Code.
Section 40-38-110. Any person desiring to be
examined by the board must fill out and swear to an application
furnished by the board sixty days prior to the holding of the
examination. Each applicant, on making application, shall pay to the
secretary of the board a fee as determined by regulation of the board.
Section 40-38-120. A person is qualified to
receive a certificate of registration as a registered optician who:
(1) Has graduated from an accredited public or
private high school or secondary school of equal grade approved by
the board or has completed an equivalent course of study approved
by the board;
(2) Has received a certificate from a two-year
school of opticianry approved by the board, or holds a currently valid
optician's license in another state, or has been engaged in opticianry,
as defined in this section, for not less than two years or has had two
years' apprenticeship under an active state-licensed optician,
optometrist, or ophthalmologist. An apprenticeship must be
approved by the board in writing before it is begun. All opticianry
apprenticeships served under active state-licensed opticians,
optometrists, or ophthalmologists are subject to the same regulations
of the Board of Opticianry.
(3) Has passed a satisfactory examination
conducted by the board and shows proficiency in processing a lens,
frame, or any other optical device or appurtenance in accordance with
an optometrist's or physician's prescription. Processing does not
mean those tasks and functions in surface grinding performed by
persons who work in a wholesale laboratory.
Section 40-38-130. Every applicant for
examination shall pass the opticianry competency examination
prepared by the American Board of Opticianry or, if that examination
is not available, the board shall prepare an opticianry competency
examination. Examinations in dispensing and other practical areas
of opticianry as defined in Section 40-38-10 may be conducted by the
board. The board may not require an examination that is
substantially duplicative of the national examination if the national
examination is available.
An optician or applicant for licensure shall successfully
complete a written qualifying contact lens examination prepared by
the National Committee of Contact Lens Examination or, if that
examination is not available, an equivalent examination prepared by
the board before the optician is eligible to dispense contact lens.
Section 40-38-140. All persons, successfully
passing the examination shall be numbered and registered in the
board register, which shall be kept by the secretary, as licensed to
work as an optician and shall receive a certificate of such registration,
signed by the president and secretary of the board, upon payment to
the board of a sum to be determined by regulation of the board.
Section 40-38-150. Notwithstanding any other
provisions of law, in all cases opticians shall act with respect to
contact lenses only upon receipt of and based on a prescription for
such lenses by an ophthalmologist or optometrist. Nothing in this
chapter shall be construed to allow opticians to fit contact lenses or
to make professional determinations as to the specifications of such
lenses unless under the supervision of an ophthalmologist or
optometrist. If such supervision is not direct and if the optician
dispenses the contact lenses outside of the presence of the
ophthalmologist or optometrist, the optician shall instruct the patient
to return to the prescribing ophthalmologist or optometrist for
verification of the fitting as soon as an appointment may be obtained.
Section 40-38-160. Every person to whom a
certificate of registration is granted under this chapter shall display
it in a conspicuous place in his principal office or place of business
or employment. A separate certificate of registration granted by the
board shall also be displayed for opticians eligible to dispense contact
lenses.
Section 40-38-170. Any failure, neglect or refusal
on the part of any person holding such a certificate of registration to
display it after the issuance of such certificate shall ipso facto work
the forfeiture of such certificate of registration and it shall not be
restored except upon the payment of twenty-five dollars to the board.
Section 40-38-180. Every optician who desires to
continue to be licensed in this State shall annually, on or before the
first day of October, pay to the board a renewal registration fee, to be
fixed by the board. In case of default in making such payment by any
person his certificate shall be automatically revoked by the board on
thirty days' notice in writing prior to the effective time of revocation.
The deposit of such notice in the United States Post Office addressed
to such person at his last place of residence or business, registered
with postage prepaid, shall be due and legal service. No certificate
shall be revoked for nonpayment of such renewal fee if within the
thirty day notice period the person shall pay such a penalty, to be
established by regulation of the board and the renewal fee. Any
person whose certificate of registration has been revoked for failure
to pay his renewal fee may apply to have it regranted to him upon
payment of all renewal fees with a penalty as established by
regulation of the board. If the license has been lapsed for more than
two years he shall appear before the board, which shall then
determine if his license should be reinstated, and the terms upon
which such reinstatement shall be made. Any person holding a
license in South Carolina who is not practicing in this State but is in
practice in another state, wishing to keep his license current, may pay
annually a fee to be determined by the board, until he decides to
practice in South Carolina, at which time he shall pay the current fee
being charged to practitioners in South Carolina.
Each active state optician shall annually attend a minimum
of three hours of continuing educational courses or meetings. The
instruction shall be on subjects relative to opticianry, exclusive of
office management or administration, at board approved and
recognized educational seminars and courses or accredited
institutions of learning. Satisfactory proof of compliance with this
requirement is a prerequisite for annual renewal.
Section 40-38-190. It shall be unlawful for any
ophthalmic manufacturer, wholesale supply house, or any of their
employees, whether licensed as an optician or unlicensed, to dispense
spectacles to the public from its manufacturing or wholesale
locations.
Section 40-38-200. It shall be unlawful for any
such licensee to permit his license to be used by any unlicensed
person and shall be a violation of the terms hereof for any unlicensed
person to practice or attempt to practice or conduct his business under
the rights and privileges conferred upon some other person duly
licensed. Notwithstanding any other provision of law, an optician
may delegate tasks to his assistants working under his direct
supervision. As used herein, `direct supervision' means that a
licensed optician shall be on the premises at all times. Nothing herein
shall preclude such optician from being absent from the practice for
reasonable periods during the working day, such as lunch or other
customary, practice-related absences. No contact lenses shall be
dispensed during his absence. Under no circumstances will these
assistants be allowed to give a contact lens fitting.
Section 40-38-210. The board shall receive
complaints by any person against a licensed optician and shall require
a complaint to be submitted in written form. Upon receipt of the
complaint, the secretary or such other person as the President may
designate shall investigate the allegations in the complaint and make
a report to the board concerning his investigation. If the board shall
then desire to proceed further, it may, in its discretion, file a formal
accusation charging the optician with a violation of a provision of
this chapter. The accusation shall be signed by the president or the
vice president on behalf of the board. When the accusation is filed
and the board shall set a date for hearing thereon, the secretary of the
board shall notify the accused in writing not less than thirty days
prior to the hearing and a copy of the accusation shall be attached to
the notice. The accused may appear and show cause why his license
should not be suspended or revoked. The accused shall have the right
to be confronted with and to cross-examine the witnesses against him
and he shall have the right to counsel. For the purposes of such
hearings, the board may require by subpoena the attendance of
witnesses, the production of documents, may administer oaths and
hear testimony, either oral or documentary, for and against the
accused. In instances where a board member has made the initial
investigation or complaint, he shall not sit with the board at the
hearing of such complaint.
Such notice may be sent to the accused by registered mail,
return receipt requested, directed to his last mailing address furnished
to the board. The post office registration receipt signed by the
accused, his agent, or a responsible member of his household or
office staff, or, if not accepted by the person to whom addressed, the
postal authority stamp showing the notice refused shall be prima facie
evidence of service of such notice.
All investigations and proceedings undertaken under the
provisions of this chapter shall be confidential.
Every communication whether oral or written, made by or
on behalf of any complainant to the board or its agents or any hearing
panel or member thereof, pursuant to this chapter, whether by way of
complaint or testimony, shall be privileged; and no action or
proceeding, civil or criminal, shall lie against any person by whom
or on whose behalf such communication shall have been made.
Section 40-38-220. The board may revoke,
suspend, or otherwise restrict the license of any optician or reprimand
or otherwise discipline him when it is established that the license
holder is guilty of misconduct as defined herein.
Misconduct, which constitutes grounds for revocation,
suspension, or restriction of a license, or a limitation on, reprimand
or other discipline of an optician shall be a satisfactory showing to
the board:
(1) That any false, fraudulent, or forged
statement or document has been used, and any fraudulent, deceitful,
or dishonest act has been practiced by the holder of a license or
certificate in connection with any of the license requirements.
(2) That the holder of a license has been
convicted of a felony or any other crime involving moral turpitude.
Forfeiture of a bond or a plea of nolo contendere shall be considered
the equivalent of a conviction.
(3) That the holder of a license practiced
opticianry while under either the influence of alcohol or drugs to such
a degree as to adversely affect his ability to practice opticianry.
(4) That the holder of a license uses alcohol or
drugs to such a degree as to adversely affect his ability to practice
opticianry.
(5) That the holder of a license has knowingly
performed any act which in any way assists a person to practice
opticianry illegally.
(6) That the holder of a license has caused to be
published or circulated directly or indirectly any fraudulent, false, or
misleading statements as to the skill or methods of practice of any
optician.
(7) That the holder of a license has failed to
provide and maintain reasonable sanitary facilities.
(8) That the holder of a license has sustained
any physical or mental impairment or disability which renders further
practice by him dangerous to the public.
(9) That the holder of a license has violated the
principles of ethics as adopted by the board and published in its rules
and regulations.
(10) That the holder of a license has engaged
in conduct that is deceptive, fraudulent or harmful to the public.
(11) That the holder of a license is guilty of
obtaining fees or assisting in obtaining such fees under deceptive,
false, or fraudulent circumstances.
(12) That the holder of a license is guilty of the
use of any intentionally false or fraudulent statement in any document
connected with the practice of opticianry.
(13) That the holder of a license has been
found by the board to lack the professional competence to practice
opticianry.
(14) That the holder of a license has violated
any provision of this chapter regulating the practice of opticianry.
(15) That the holder of a license has been
guilty of using third-party solicitation which is untruthful, deceptive,
and coercive to obtain patronage.
In addition to all other remedies and actions incorporated
in this chapter, the license of an optician adjudged mentally
incompetent by any court of proper jurisdiction shall be automatically
suspended by the board until he is adjudged by a court of competent
jurisdiction or in any other manner provided by law as being restored
to mental competency.
Section 40-38-230. If the board shall be satisfied
that the optician is guilty of any offense charged in the formal
accusation provided for in this chapter, it shall revoke, suspend,
reprimand, or otherwise take any other reasonable action short of
revocation or suspension, such as requiring the licensee to undertake
additional professional training subject to the direction and
supervision of the board. The board may also impose such restraint
upon the licensee as circumstances warrant until the licensee
demonstrates to the board adequate professional competence. In all
cases where disciplinary action is taken by the board, written notice
of such action shall then be mailed by the secretary of the board to
the accused at his last known address as provided to the board.
Any decision by the board to revoke, suspend, or otherwise
restrict the license shall be by majority vote and shall be subject to
review by an administrative law judge as provided under Article 5 of
Chapter 23 of Title 1. Such review shall be limited to the record
established by the board's hearing.
Section 40-38-240. No member of the board, or
its secretary, its committees, special examiners, agents, and
employees shall be held liable for acts performed in the course of
official duties except where actual malice is shown.
Section 40-38-250. Any person violating the
provisions of this chapter is guilty of a misdemeanor and, upon
conviction, shall be fined not less than twenty-five dollars nor more
than one thousand dollars or imprisoned not less than twenty days nor
more than thirty days.
Section 40-38-5. Unless otherwise provided for in this
chapter, Article 1, Chapter 1, Title 40 applies to opticians regulated
by the Department of Labor, Licensing and Regulation under this
chapter. If there is a conflict between this chapter and Article 1,
Chapter 1, Title 40, the provisions of this chapter control.
Section 40-38-10. (A) There is created the South
Carolina Board of Examiners in Opticianry which consists of seven
members. Five members must be licensed opticians appointed by the
Governor upon nomination by all licensed opticians in this State
through an election conducted by the board. The Governor may
reject any or all of those nominated upon satisfactory showing as to
the unfitness of those rejected. If the Governor declines to appoint
any of the nominees, additional nominees must be elected and
submitted in the same manner as the initial nominees. Vacancies
must be filled in the manner of the original appointment for the
unexpired portion of the term. Two members must be members of
the general public who do not derive their income or support from
any optical or optical-related business or who are not related to an
optician or a person engaged in an optical-related business. The
members from the general public may be nominated by an individual,
group, or association and appointed by the Governor in accordance
with Section 40-1-45.
(B) The members of the board serve terms of four years and until
their successors are appointed and qualify. No person may serve
more than two consecutive full four-year terms on the board except
that if a person is appointed to fill an unexpired term on the board, he
may be reappointed for two additional four-year terms.
(C) The Governor may remove a member of the board in
accordance with Section 1-3-240. No member may be removed
without first giving the member an opportunity to refute the charges
filed against the member and the member must be given a copy of
the charges at the time they are filed.
Section 40-38-20. As used in this chapter:
(1) `Optician' means one who prepares and dispenses lenses,
spectacles, eyeglasses, and appurtenances to the intended wearers on
prescriptions from licensed physicians or optometrists and in
accordance with these prescriptions, mechanically interprets,
measures, adapts, fits, and adjusts lenses, spectacles, eyeglasses, and
appurtenances to the human face for the aid or correction of visual or
ocular anomalies of the human eye;
(2) 'Apprentice' means a qualified person registered by the board
who is working under the supervision of a licensed optician,
optometrist, or ophthalmologist and who is being trained in the
practice of opticianry; and
(3) 'Board' means the South Carolina Board of Examiners in
Opticianry.
Section 40-38-30. It is unlawful for a person to practice as an
optician without being licensed in accordance with this chapter. A
person who displays a sign or in any way advertises himself to be an
optician is deemed to be practicing opticianry within the meaning of
this chapter.
Section 40-38-50. The board must be administered by the
Department of Labor, Licensing and Regulation in accordance with
Article 1, Chapter 1, Title 40.
Section 40-38-60. The board may adopt bylaws governing its own
proceedings and promulgate regulations for the practice of opticianry
and examination of applicants for the practice of opticianry.
Section 40-38-70. The board shall examine or provide for the
examination of applicants for licenses in opticianry, investigate
complaints, and investigate and prosecute violations of this chapter.
Section 40-38-80. For the purpose of conducting an investigation
or proceeding under this chapter, the board or a person designated by
the board may subpoena witnesses, take evidence, and require the
production of documents or records which the board considers
relevant to the inquiry.
Section 40-38-90. If a board member files a complaint or conducts
the initial investigation of a complaint, the board member must not
participate in the capacity as board member at the hearing of that
complaint.
Section 40-38-100. The board may seek to enjoin violations of
this chapter as provided for in Section 40-1-100.
Section 40-38-110. (A) In addition to the grounds for
disciplinary action provided in Section 40-1-110, the board may
revoke, suspend, or otherwise restrict or limit the license of an
optician or reprimand or otherwise discipline a licensee when it is
established upon a satisfactory showing to the board that the licensee:
(1) has been convicted of a felony or crime involving moral
turpitude. Forfeiture of a bond or a plea of nolo contendere is
considered a conviction;
(2) has knowingly performed an act which in any way assists a
person to practice opticianry illegally;
(3) has caused to be published or circulated directly or
indirectly fraudulent, false, or misleading statements as to the skill
or methods of practice of an optician;
(4) has failed to provide and maintain reasonable sanitary
facilities;
(5) is guilty of obtaining fees or assisting in obtaining fees
under deceptive, false, or fraudulent circumstances;
(6) has violated a provision of this chapter or a regulation
promulgated under this chapter; or
(7) has been guilty of using third-party solicitation which is
untruthful, deceptive, and coercive to obtain patronage.
(B) In addition to all other remedies and actions provided for in
this chapter, the license of an optician adjudged mentally incompetent
by a court of proper jurisdiction automatically must be suspended by
the board until the optician is adjudged by a court of competent
jurisdiction or in any other manner provided by law as being restored
to mental competency.
Section 40-38-115. The board has jurisdiction over the action of
licensees and former licensees as provided for in Section 40-1-115.
Section 40-38-120. In addition to the sanctions the board may
take against a person pursuant to Section 40-38-110, the board may
take disciplinary action against a person as provided for in Section
40-1-120.
Section 40-38-130. As provided for in Section 40-1-130, the
board may deny licensure to an applicant based on the same grounds
for which the board may take disciplinary action against a licensee.
Section 40-38-140. A license for opticianry may be denied based
on a person's prior criminal record as provided for in Section
40-1-140.
Section 40-38-150. A licensee under investigation for a violation
of this chapter or a regulation promulgated under this chapter may
voluntarily surrender the license in accordance with Section
40-1-150.
Section 40-38-160. A person aggrieved by a final action of the
board may seek review of the decision in accordance with Section
40-1-160.
Section 40-38-170. A person found in violation of this chapter or
regulations promulgated under this chapter may be required to pay
costs associated with the investigation and prosecution of the case in
accordance with Section 40-1-170.
Section 40-38-180. All costs and fines imposed pursuant to this
chapter must be paid in accordance with and are subject to the
collection and enforcement provisions of Section 40-1-180.
Section 40-38-190. All investigations and proceedings
undertaken under the provisions of this chapter are confidential and
all communications are privileged as provided for in Section
40-1-190.
Section 40-38-200. A person who violates a provision of this
chapter is guilty of a misdemeanor and, upon conviction, must be
fined not more than fifty thousand dollars or imprisoned not more
than one year. Each violation constitutes a separate offense.
Penalties provided for in this chapter or in Article 1, Chapter 1, Title
40 may be imposed against a corporation, association, or person
aiding and abetting in a violation.
Section 40-38-210. In addition to initiating a criminal proceeding
for a violation of this chapter, the board also may seek civil penalties
and injunctive relief in accordance with Section 40-1-210.
Section 40-38-230. (A) A person desiring to be examined by the
board must submit an application furnished by the board sixty days
before the examination. The application must be accompanied by a
fee established by the board in regulation and in accordance with
Section 40-1-50(D).
(B) An applicant for examination shall pass the opticianry
competency examination prepared by the American Board of
Opticianry, or if that examination is not available, an opticianry
competency examination prepared by the board. Examinations in
dispensing and other practical areas of opticianry may be conducted
by the board. The board may not require an examination that is
substantially duplicative of the national examination if the national
examination is available.
(C) An optician or applicant for licensure as a contact lens
optician successfully shall complete a written qualifying contact lens
examination prepared by the National Committee of Contact Lens
Examination, or if that examination is not available, an equivalent
examination prepared by the board.
Section 40-38-240. (A) A person is qualified to receive a
certificate of licensure as an optician if the person has:
(1) graduated from an accredited public or private high school
or secondary school of equal grade approved by the board or has
completed an equivalent course of study approved by the board.
(2)(a) received a certificate from a two-year school of opticianry
approved by the board;
(b) a currently valid optician's license in another state;
(c) been engaged in opticianry for not less than two years in
a state that does not license opticians; or
(d) had two years' apprenticeship under a South Carolina
licensed optician, optometrist, or ophthalmologist. The board must
approve in writing an apprenticeship before the apprenticeship
commences, and the regulations of the board apply to the
apprentice.
(3) satisfactorily passed an examination conducted or
recognized by the board and shows proficiency in processing a lens,
frame, or any other optical device or appurtenance in accordance with
an optometrist's or physician's prescription. Processing does not
mean those tasks and functions in surface grinding performed by
persons who work in a wholesale laboratory.
Having met the requirements of this subsection and upon
payment of a licensure fee established by the board in regulation, the
board shall issue a certificate of licensure and shall enter the person
in the board register as licensed to work as an optician.
(B) A person is qualified to receive a certificate of licensure as a
contact lens optician who has:
(1) met all the requirements of subsection (A); and
(2) satisfactorily passed a written qualifying contact lens
examination conducted or recognized by the board.
Having met the requirement of this subsection and upon payment
of a licensure fee established by the board in regulation, the board
shall issue a certificate of licensure and shall enter the person in the
board register as licensed to work as a contact lens dispensing
optician.
Section 40-38-250. The board shall promulgate regulations for
apprentice registration requirements and fees and for the regulation
of apprentices and apprenticeships.
Section 40-38-260. (A) A licensed optician or registered
apprentice who desires to continue to be licensed or registered in this
State annually, on or before the first day of October, shall pay a
renewal fee, to be established by the board in regulation and in
accordance with Section 40-1-50(D). In case of default in payment
of the fee, the person's license or registration is automatically
revoked if the board gives the licensee thirty days' notice in writing
before the effective date of revocation. Deposit of the notice in the
United States Postal Service addressed to the person at the person's
last place of residence or business, registered with the board, with
postage prepaid, constitutes legal service of the notice. No license or
registration may be revoked for nonpayment of the renewal fee if
within the thirty-day notice period the person pays a renewal fee and
a penalty established by the board in regulation. A person whose
license or registration has been revoked for failure to pay the renewal
fee may apply to have it reinstated upon payment of all renewal fees
and a penalty as established by the board in regulation. If the license
or registration has been lapsed for more than two years, the person
shall appear before the board, which shall determine if the license or
registration should be reinstated and the terms under which the
reinstatement is to be made. A person holding a license or
registration in South Carolina not practicing in this State who wishes
to keep the license or registration current, annually may pay an
inactive license or registration fee established by the board in
regulation. If the person decides to resume practice in this State, the
person shall pay the fee being charged active practitioners in South
Carolina at that time.
(B) An optician or apprentice annually shall attend a minimum of
four hours of continuing education courses or meetings, one hour of
which may be in office management or administration. The
instruction must be on subjects relative to opticianry at board-
approved and recognized educational seminars and courses or
accredited institutions of learning. An optician holding a contact lens
license must obtain one additional hour of continuing education
courses or meetings, which must be in contact lens education at
board- approved and recognized educational seminars and courses or
accredited institutions of learning. Satisfactory proof of compliance
with this subsection is a prerequisite for annual renewal.
Section 40-38-270. Notwithstanding any other provision of law,
with respect to contact lenses, an optician shall act upon receipt of
and based on a prescription for the lenses by an ophthalmologist or
optometrist. Nothing in this chapter may be construed to allow an
optician to fit contact lenses or to make professional determinations
as lenses to the specifications of these lenses unless under the
supervision of an ophthalmologist or optometrist. If supervision is
not direct and if the optician dispenses the contact lenses outside of
the presence of the ophthalmologist or optometrist, the optician shall
instruct the patient to return to the prescribing ophthalmologist or
optometrist for verification of the fitting as soon as an appointment
may be obtained.
Section 40-38-280. The services and appliances related to
ophthalmic dispensing must be dispensed, furnished, or supplied to
the intended wearer or user only upon prescription issued by a
physician or an optometrist; however, duplications, replacements,
reproductions, or repetitions may be provided without prescription
and are deemed to be ophthalmic dispensing, as if performed on the
basis of a written prescription. Oral prescriptions are permitted if the
optician maintains a written record; however, contact lenses only
may be dispensed in accordance with Section 40-38-270.
Section 40-38-290. It is unlawful for an ophthalmic manufacturer,
wholesale supply house, or any of their employees, whether licensed
as an optician or unlicensed, to dispense spectacles to the public from
its manufacturing or wholesale locations.
Section 40-38-300. (A) It is unlawful for an optician to permit
his license to be used by an unlicensed person, and it is unlawful for
an unlicensed person to practice or attempt to practice or conduct
optician business under the rights and privileges conferred upon
another person who is a licensed optician.
(B) Notwithstanding any other provision of law, an optician may
delegate tasks to assistants working under on-site supervision.
However, under no circumstances may an assistant be allowed to
perform a contact lens fitting. Nothing in this section precludes an
optician who is supervising an assistant from being absent from the
practice for reasonable periods during the work week for
practice-related absences.
Section 40-38-310. (A) It is unlawful for a person to
disseminate, directly or indirectly, or cause to be disseminated
untruthful, deceptive advertisement ,or representation concerning eye
examinations, ophthalmic goods, ophthalmic services, or the practice
of opticianry. It is unlawful for a person, partnership, or corporation
to disseminate, directly or indirectly, or cause to be disseminated
untruthful, impossible, improbable, misleading, or deceptive
advertisement or representation concerning the terms, guarantee, or
warranty which relates to the procurement of ophthalmic goods or
services.
(B) It is unlawful for a person to offer or give eye examinations,
eyeglasses, spectacles, lenses, or any part used in connection with
them as a premium or bonus with merchandise or in any other
manner to induce trade. This section does not prohibit giving
ophthalmic products incidental to the use of the product being offered
or the offering of a reduced price, sale, or discount on purchases.
These disclosures must be made with any offer:
(1) if the offered price is represented as being a reduced price,
sale price, or discounted price, the offer shall disclose the reduced
price, sale price, or discounted price is from the offeror's regular
selling price or shall disclose any other price and its source which
serves as the standard from which the offeror represents the offered
price as being a reduced price, sale price, or discounted price;
(2) the date the offer terminates.
(C) It is unlawful for a person to disseminate price information
concerning ophthalmic goods and services without including an
advertised price for:
(1) eyeglasses includes single vision or multi-focal lenses;
(2) contact lenses refers to hard or soft contact lenses;
(3) ophthalmic materials includes all dispensing fees;
(4) ophthalmic materials includes an eye examination; and
(5) eyeglasses includes both frame and lenses.
Section 40-38-320. Nothing in this chapter prevents opticians
from using third-party solicitation which does not involve uninvited,
in-person solicitation of persons who, because of their particular
circumstances, may be vulnerable to undue influences.
Section 40-38-330. The board has no authority to promulgate
regulations governing the employment of opticians, the location of
optical stores, the number of optical stores operated, the advertising
of optical products or services, or the manner in which these products
can be displayed.
Section 40-38-340. Dispensing opticians may hold themselves
out as doing business and may advertise under their corporate name,
trade name, or as successor to another optician in the State, and the
board may not promulgate regulations restricting these rights.
Section 40-38-350. (A) A person to whom a certificate of
licensure is granted under this chapter shall display it in a
conspicuous place in the person's principal office or place of business
or employment. A separate certificate of licensure as a contact lens
optician granted by the board also must be displayed by an optician
eligible to dispense contact lenses.
(B) A person who fails, neglects, or refuses to display the
certificate of licensure is deemed to have forfeited the certificate, and
it may not be restored except upon the payment of a reinstatement fee
of twenty-five dollars.
Section 40-38-360. Notices required by this chapter may be sent
by registered mail, return receipt requested, to the person's last
mailing address furnished to the board. The post office registration
receipt signed by the recipient, his agent, or a responsible member of
his household or office staff or, if not accepted by the person to
whom addressed, the postal authority stamp showing the notice
refused is prima facie evidence of service of the notice.
Section 40-38-370. This chapter does not apply to:
(1) physicians licensed in this State for the practice of medicine
or osteopathy;
(2) optometrists licensed under the laws of this State to practice
optometry; or
(3) persons who sell as merchandise from an established place of
business ready-made eyeglasses or spectacles if the person does not
aid the purchaser in the fitting of the eye glasses or spectacles.
Section 40-38-380. No member of the board, its committees,
special examiners, agents, and employees may be held liable for acts
performed in the course of official duties except where actual malice
is shown.
Section 40-38-390. If a provision of this chapter or the
application of a provision to a person or circumstance is held invalid,
the invalidity does not affect other provisions or applications of this
chapter which can be given effect without the invalid provision or
application, and to this end the provisions of this chapter are
severable."
SECTION 2. This act takes effect upon approval by the Governor.
-----XX----- |