CR 21-005 Rule Text

OPTOMETRY EXAMINING BOARD

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IN THE MATTER OF RULEMAKING   :   PROPOSED ORDER OF THE

PROCEEDINGS BEFORE THE     : OPTOMETRY EXAMINING BOARD  

OPTOMETRY EXAMINING BOARD   :   ADOPTING RULES

            :   (CLEARINGHOUSE RULE )

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PROPOSED ORDER

An order of the Optometry Examining Board to repeal Opt 1.02(2), (4), and (5), 5.03(23), 5.10(1)(d), 5.11 and 5.14; to amend Opt 5.03(16), 5.03(17)(a)3, 5.03(17)(b)3 and 5.10(1)(f); and to create Opt 5.02(5m), 5.03(17)(c) and (17m), and 5.045(3), relating to unprofessional conduct.

Analysis prepared by the Department of Safety and Professional Services.

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ANALYSIS

Statutes interpreted: Sections 449.03, 449.08 and 449.25, Stats.

Statutory authority: Sections 15.08 (5) (b), 227.11 (2) (a), and 449.25, Stats.

Explanation of agency authority:

Section 15.08 (5) (b), Stats., states that the examining board, “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.”

Section 227.11 (2) (a), Stats., sets forth the parameters of an agency’s rule-making authority, stating an agency, “may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.”

Section 449.25, Stats., provides that the examining board shall promulgate rules relating to informed consent, stating that, “[a]ny optometrist who treats a patient shall inform the patient about the availability of reasonable alternate modes of treatment and about the benefits and risks of these treatments.…”

Related statute or rule:

Sections 449.01 (2), 449.03 (1), and 990.01 (20), Stats.

Plain language analysis:

Section 1 removes the definitions of “fitting contact lenses”, “minimum examination for the fitting of contact lenses”, and “minimum eye examination” because each contain a substantive procedure more appropriately placed under s. Opt 5.03 relating to unprofessional conduct. The terms are not used elsewhere in the chapter.

Section 2 adds the definition of a “minor” as provided in s. 990.01(20), Stats.

Section 3 updates cite references to amended and added provisions.

Section 4 creates provisions setting out the procedures for a minimum eye examination and a minimum contact lenses examination. The proposed rule clarifies that it is unprofessional conduct for an optometrist to fail to conduct certain procedures during a minimum eye examination and a minimum contact lenses examination.

Section 5 removes the provision that it is unprofessional conduct for an optometrist to fail to give a written disclosure to any patient receiving extended wear contact lenses under s. Opt 5.14.

Section 6 adds the provision that if a patient is a minor or is incompetent, treatment disclosures must be made to the patient’s parent or legal guardian.

Section 7 removes the requirement that optometrists make a notation in the patient file that ophthalmic lenses have been verified prior to dispensing under s. Opt. 5.11.

Section 8 requires optometrists to document in the file of a minor or an incompetent person, that informed consent was received from the patient’s parent or legal guardian prior to treatment.

Section 9 removes the requirement that optometrists verify that ophthalmic lenses meet an outdated American National Institute Standards, Inc. (ANSI) standard prior to dispensing.

Section 10 removes the requirement that optometrists provide a written disclosure to extended wear contact lens patients describing the risks associated with extended wear contact lenses. The language in the rule is outdated and rewriting the disclosure statement would place unnecessary administrative requirements on optometrists. The public is protected by s. 449.25(1), Stats., designating a “reasonable optometrist” standard requiring “…disclosure only of information that a reasonable optometrist would know and disclose under the circumstances.”

Summary of, and comparison with, existing or proposed federal regulation:

No existing or proposed federal regulations relate to disclosure to patients of risks associated with extended wear contact lens or verification of technical standards for ophthalmic lenses prior to dispensing to a patient.

Comparison with rules in adjacent states:

Illinois:

No existing or proposed Illinois regulations relate to disclosure to patients of risks associated with extended wear contact lens or verification of technical standards for ophthalmic lenses prior to dispensing to a patient.

Iowa:

No existing or proposed Iowa regulations relate to disclosure to patients of risks associated with extended wear contact lens or verification of technical standards for ophthalmic lenses prior to dispensing to a patient.

Michigan:

No existing or proposed Michigan regulations relate to disclosure to patients of risks associated with extended wear contact lens or verification of technical standards for ophthalmic lenses prior to dispensing to a patient.

Minnesota:

No existing or proposed Minnesota regulations relate to disclosure to patients of risks associated with extended wear contact lens or verification of technical standards for ophthalmic lenses prior to dispensing to a patient.

Summary of factual data and analytical methodologies:

The Optometry Examining Board performed a comprehensive review of chapter Opt 5. This rule project reflects the Board’s efforts to revise the chapter for clarity, remove obsolete provisions, and ensure the chapter is current with professional standards and practices.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:

The proposed rules were posted for a period of 14 days to solicit public comment on economic impact, including how the proposed rules may affect businesses, local government units, and individuals. No comments were received.

Fiscal Estimate and Economic Impact Analysis:

The Fiscal Estimate and Economic Impact Analysis is attached.

Effect on small business:

These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at [e-mail], or by calling [phone].

Agency contact person:

Kevyn Radcliffe, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 4822 Madison Yards Way, P.O. Box 8366, Madison, Wisconsin 53708; telephone [phone]; email at [e-mail].

Place where comments are to be submitted and deadline for submission:

Comments may be submitted to Kevyn Radcliffe, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 4822 Madison Yards Way, P.O. Box 8366, Madison, WI 53708-8366, or by email to [e-mail]. Comments must be received at or before the public hearing to be held at 9:00 a.m. on March 25, 2021, to be included in the record of rule-making proceedings.

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TEXT OF RULE

SECTION 1: Opt 1.02(2), (4), and (5) are repealed.

SECTION 2: Opt 5.02(5m) is created to read:

Opt 5.02(5m) “Minor” has the meaning given in s. 990.01(20), Stats.