Current StatusView additional legislative information at the LPITS web site.Bill Number: 892 Ratification Number: 485 Act Number 396 Introducing Body: Senate Subject: To regulate opticians and to reauthorize the existence of the South Carolina Board of Examiners In Opticianry
(A396, R485, S892)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 38 TO TITLE 40 SO AS TO REGULATE OPTICIANS AND TO REAUTHORIZE THE EXISTENCE OF THE SOUTH CAROLINA BOARD OF EXAMINERS IN OPTICIANRY FOR SIX YEARS AS PROVIDED BY ACT 608 OF 1978.
Be it enacted by the General Assembly of the State of South Carolina:
Regulation of opticians
Section 1. The 1976 Code is amended by adding to Title 40
"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, a court of common pleas, 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 shall be unlawful for any person to disseminate by any means, directly or indirectly, or cause to be disseminated, any untruthful, impossible, improbable, misleading, or deceptive advertisement or representation concerning eye examinations, ophthalmic goods, ophthalmic services, or the practice of opticianry. In addition, it shall be unlawful for any person to disseminate by any means whatsoever, 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 in any manner to the procurement of ophthalmic goods or services.
It shall be unlawful for any person to offer or give eyeglasses, spectacles, lenses, or any part used in connection therewith as a premium or bonus with merchandise or in any other manner to induce trade or to give or offer to give anything of value to any other person, the object of which is to induce the examination of the eye or the sale of spectacles, eyeglasses, lenses or any part used in connection therewith. Provided, that the provisions of this section shall 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.
Notwithstanding the above provisions of this section, the board shall permit the price advertising in any media by opticians provided the following disclosures are components of each such advertisement:
(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 shall have 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 such products can be displayed.
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 Act 165 of 1979.
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 herein, for a period of not less than three years or has had three years' apprenticeship under an active state-licensed optician. Any apprenticeship begun after July l, 1978, shall be approved by the board in writing before such apprenticeship is begun, and any apprenticeship begun before July 1, 1978, shall not require prior approval by the board and may be approved by it after completion of such apprenticeship;
(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.
Section 40-38-130. Every applicant for examination shall pass the opticianry competency examination prepared by the American Board of Opticianry or, if such examination is not available, the board shall prepare an opticianry competency examination. Examinations in surface grinding and other practical areas may be conducted by the board. The board shall not require any 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 such examination is not available, an equivalent examination prepared by the board, before such optician shall be 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 provision 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 a solicitor 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 the circuit court upon petition filed by the licensee with the court and a copy served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. 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."
Present members of board to continue to serve
Section 2. Present members of the Board of Examiners in Opticianry shall continue to serve until expiration of their current terms and until their successors are appointed and qualify. Present board members may be eligible for appointment notwithstanding prior service.
Board reauthorized
Section 3. In accordance with the provisions of Section 7 of Act 608 of 1978, the existence of the South Carolina Board of Examiners in Opticianry is reauthorized for six years as provided in such section.
Time effective
Section 4. This act shall take effect upon the approval by the Governor.