BEFORE THE BOARD OF OPTOMETRY

                            DEPARTMENT OF LABOR AND INDUSTRY

                                              STATE OF MONTANA

 

In the matter of the amendment of ARM 24.168.301, 24.168.402, 24.168.2101, 24.168.2104, and 24.168.2301, the adoption of NEW RULE I, and the repeal of ARM 24.168.406, 24.168.411, and 24.168.2307 pertaining to the Board of Optometry

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL

 

TO: All Concerned Persons

 

            1. On October 3, 2023, at 10:00 a.m., a public hearing will be held via remote conferencing to consider the proposed changes to the above-stated rules. There will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways:

            a. Join Zoom Meeting, https://mt-gov.zoom.us/j/89030062383

                  Meeting ID:  890 3006 2383, Passcode:  768412

                  -OR-

            b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656

                  Meeting ID:  890 3006 2383, Passcode:  768412

 

            2. The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on September 26, 2023, to advise us of the nature of the accommodation that you need. Please contact the department at P.O. Box 1728, Helena, Montana 59624-1728; telephone (406) 444-5466; Montana Relay 711; or e-mail laborlegal@mt.gov.

 

            3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            24.168.301 DEFINITIONS For the purposes of this chapter, the following definitions apply:

            (1) through (3) remain the same.

            (4) "Asynchronous," as distinct from "synchronous," refers to non-live training.

            (4) "Board" means the Board of Optometry as defined in 2-15-1736, MCA.

            (5) "Department" means the Department of Labor and Industry as defined in 2-15-1701, MCA.

            (6) "DPA" means certification by the board in diagnostic pharmaceutical agents.

            (7) through (9) remain the same but are renumbered (5) through (7).

 

            AUTH: 37-10-202, MCA

            IMP:     37-10-101, 37-10-103, 37-10-304, MCA

 

REASON: Reasonable necessity exists to strike the definitions of board and department because they are duplicative of statute.  Additionally, in the context of board-adopted rulemaking, they are unnecessary.  Reasonable necessity exists to strike the definition of DPA because its only use in these rules is in ARM 24.168.402 which is proposed to be repealed.  The board proposes to define asynchronous as it applies to continuing education to clarify the meaning of ARM 24.168.2101.

 

            24.168.402 LICENSURE REQUIREMENTS (1) through (3) remain the same.

            (4) If an applicant was licensed prior to the inclusion of TMOD in the NBEO examination (1993), the applicant shall:

            (a) provide proof of successful completion of a qualifying examination, or examinations, as defined in 37-10-304, MCA, administered by the licensing authority of the state or jurisdiction granting the license; and

            (b) meet all qualifications to be TPA and DPA certified.

            (5) and (6) remain the same but are renumbered (4) and (5).

           

            AUTH: 37-1-131, 37-10-202, 37-10-302, MCA

            IMP:     37-1-131, 37-1-304, 37-10-301, 37-10-302, 37-10-304, MCA

 

REASON: Reasonable necessity exists to repeal (4) because it is no longer necessary and is in conflict with statute.  Section 37-1-304, MCA is implemented in this rule by (3), which specifies applicants for licensure by endorsement are reviewed by the board on a case-by-case basis.  Section (4) overlays an additional requirement for individuals initially licensed prior to 1993.  However, 37-1-304, MCA, recognizes licensure without examination of those from other states based on a board determination of substantial equivalency and a lack of reason to deny the license.  Repealing this rule should streamline the license application process.

 

            24.168.2101 CONTINUING EDUCATION REQUIREMENTS – AUDIT 

            (1) Licensed optometrists shall complete 36 hours of approved continuing education (CE) every two years in scientific clinics, forums, or optometric educational studies.:

            (a) Up to 12 hours of asynchronous approved CE courses may be counted toward the CE requirement.

            (b) Up to 4 hours of practice management approved CE may be counted toward the CE requirement.

            (c) The board does not limit or restrict online approved synchronous CE courses.

            (2) Licensees shall affirm an understanding of their recurring duty to comply with CE requirements as a part of license renewal.

            (2) The following are exceptions to CE requirements:

            (3)(a) A person who graduates from an accredited school of optometry and becomes a licensee within one year of graduation is excused from the CE requirement during the first applicable CE cycle.

            (4)(b) A licensee who is enrolled in a residency program accredited by the ACOE is excused from the CE requirement while the licensee is in the residency program and during the first applicable CE cycle.

            (5) The board may randomly audit up to 50 percent of all renewed licensees. It is the responsibility of each optometrist to maintain adequate records of participation and completion, and make them available upon board request.

            (a) Random audits will be conducted in odd-numbered years.

            (6) Licensees found to be in noncompliance with CE requirements may be subject to administrative suspension. 

            (3) The department is authorized to audit CE requirements and shall determine the percentage to audit based on a statistically relevant sampling of the total number of licensees and the compliance rate of past audits.  Audits will be conducted in odd-numbered years.

 

            AUTH: 37-1-131, 37-1-319, MCA

            IMP:     37-1-131, 37-1-141, 37-1-306, 37-1-319, 37-1-321, MCA

 

REASON: Reasonable necessity exists to amend this rule to ensure that CE requirements for licensees are contained in a single rule.  As such, new language proposed to be added to (1) is transferred from ARM 24.168.2104.  This amendment additionally clarifies that asynchronous learning—non-"live" CE courses—may be used for 12 hours of the required CE courses.  This clarifies a distinction between synchronous courses and asynchronous courses.  As noted by proposed (1)(c), this rule will permit a licensee to complete any amount of CE courses in synchronous, online courses.  By this proposal, the board hopes to simplify and modernize CE obligations.

 

Reasonable necessity exists to modify (3) and (4) of the present rule to place them under a section header of exceptions to general CE requirements.  This amendment is proposed to simplify reading of the administrative rules to ease their use for the public.

 

Reasonable necessity exists to remove (5) to clarify that it is the department, with express authorization from the board, which conducts CE audits on the board's behalf.  Audits will continue to be conducted in odd-numbered years.  Section 37-1-306, MCA specifies that audits may not exceed 50% of licensees.  As such, that provision is duplicative of statute and must be removed.  Reasonable necessity exists to remove (6) because administrative suspension requirements are proposed to be consolidated into New Rule I.

 

            24.168.2104 APPROVED CONTINUING EDUCATION (1) remains the same.

            (2) CE approved by the board must directly relate to the scope of practice of optometry as defined in board statutes and rules.

            (3) The primary objective of CE is the protection of the health, safety, and welfare of the public, and deals primarily with the scope of practice, professional conduct, or ethical obligations of the license held. Licensees are responsible for selecting quality programs that contribute to their knowledge and competence and meet these objectives.

            (a) Courses in which the principal purpose is to promote, sell, or offer goods, products, or services to optometrists, or to promote the personal interests of the licensees do not meet CE requirements.

            (4)(2) Approved CE includes courses:

            (a) remains the same.

            (b) approved by the ARBO's Council on Optometric Practitioner Education (COPE); or

            (c) accredited by the Accreditation Council for Continuing Medical Education (ACCME);. or

            (d) of the American Board of Optometry Continuous Assessment Program.

            (5) CE courses offered and completed on the Internet or via other similar electronic means must comply with all the requirements in this rule.

            (6) The board will grant up to four hours of credit for practice management courses and up to twelve hours of credit for CE correspondence courses or Internet courses every CE cycle. 

 

            AUTH: 37-1-131, 37-1-319, MCA

            IMP:     37-1-131, 37-1-306, 37-1-319, MCA

 

REASON: Reasonable necessity exists to remove (2) and (3) because they are no longer relevant to the CE approvals set forth in this rule.  While the sections set forth the purpose of CE, because the board now approves CE by category, rather than by a specific course, the general statements of purpose are no longer necessary.  In the interest of shortening the rule for ease of use, the sections are proposed to be stricken.  Reasonable necessity exists to strike (5) and (6) because they are proposed by this rulemaking to be incorporated into ARM 24.168.2101.

 

            24.168.2301 UNPROFESSIONAL CONDUCT (1) It is unprofessional conduct for a licensee or applicant to violate any statute, rule, or standard of care governing their scope of practice, or exceeding the scope of practice for which they are licensed, trained, and educated to perform.  The following additionally constitutes unprofessional conduct by licensees or license applicants:

            (a) making a false or misleading statement regarding the licensee's skill or the efficacy or value of the medicine, device, treatment, or remedy prescribed by or used at the licensee's direction in the treatment of any disease or other condition;

            (b) negligence in the practice of optometry as determined by the board;

            (c) gross incompetence in the practice of optometry as determined by the board;

            (d) a pattern of practice or other behavior that demonstrates rendering of substandard care, either individually or as part of a third-party reimbursement agreement or any other agreement;

            (e)(a) commission of any act of sexual abuse, misconduct, or exploitation whether or not it is related to the licensee's practice of optometry;

            (f)(b) allowing one's professional conduct or judgment in the practice of optometry to be directed, managed, or controlled by a person who is not licensed to practice optometry an optometrist or a medical doctor in Montana;

            (g)(c) prescribing, selling, administering, distributing, or giving any drug legally classified as a controlled substance or as an addictive or dangerous drug for other than accepted diagnostic or therapeutic purposes or to oneself or a family member;

            (h) prescribing, selling, administering, distributing, or giving a drug legally classified as a controlled substance or as an addictive or dangerous drug to self or a family member;

            (i) through (l) remain the same but are renumbered (d) through (g).

            (m) any adverse judgment, award, or settlement against the licensee resulting from a professional liability claim related to acts or conduct similar to acts or conduct that would constitute grounds for action as defined in Title 37, chapters 1 and 10, MCA, and administrative rules promulgated thereunder;

            (n) through (p) remain the same but are renumbered (h) through (j).

            (q) for a licensee to knowingly submit or cause to be submitted any misleading, deceptive, or fraudulent representation on a claim form, bill, or statement;

            (r) remains the same but is renumbered (k).

            (s)(l) providing ophthalmic lenses and materials that do not meet federally established impact resistance standards; or

            (t)(m) persistently maintaining, in the practice of optometry, unsanitary offices, practices, or techniques.; or 

            (n) failing to maintain or permit patient access to accurate patient records for at least five years from the last time the patient was treated.

 

            AUTH: 37-1-131, 37-1-319, 37-10-202, MCA

            IMP:     37-1-131, 37-1-316, 37-1-319, 37-10-301, MCA

 

REASON: Reasonable necessity exists to strike provisions of this rule because they are duplicative of statute.  Administrative rules must not unnecessarily duplicate statutes.  2-4-305, MCA.  Subsection (1)(a) duplicates 37-1-316(5), MCA.  Subsections (1)(b) through (d) duplicate 37-1-316(18), MCA.  Subsection (1)(f) is proposed to be amended to clarify that optometrists may affiliate with and be directed by medical doctors–in particular, but not exclusively, ophthalmologists.  Subsection (1)(h) is proposed to be incorporated into (1)(g) with the addition of a few words.  Subsection (1)(m) is duplicative of 37-1-316(18), MCA.  Subsection (1)(q) is duplicative of 37-1-316(4)-(5), MCA.  Subsection (1)(e) is proposed to be expanded to include situations not directly related to a licensee's practice.

 

            4. The proposed new rule is as follows:

 

            NEW RULE I ADMINISTRATIVE SUSPENSION (1) The board authorizes the department to:

            (a) administratively suspend licenses for deficiencies set forth in 37-1-321(1)(a) though (e), MCA; or

            (b) file a complaint pertaining to the deficiencies in (1) that are based on repeated or egregious conduct, or that have co-occurring misconduct allegations that directly implicate public safety and may warrant formal disciplinary action.

            (2) An administrative suspension is not a negative, adverse, or disciplinary action under Title 37, MCA, and is not reportable under federal law and regulations implementing the Healthcare Practitioner Databank or the department's licensee lookup and license verification databank.

 

            AUTH: 37-1-131, MCA

            IMP:     37-1-321, MCA

 

REASON: Section 37-1-321, MCA, permits the board to authorize the department to take certain non-disciplinary actions regarding licensees who are out of compliance with administrative licensure requirements such as not meeting continuing education requirements, failing to respond to continuing education audits, not paying required fees, not meeting initial licensing requirements, and noncompliance with board final orders. The board authorized the department to take these actions previously by motion. Reasonable necessity exists to adopt this rule to formally, publicly, and accessibly reiterate that authorization, so the public and licensees are aware of the authorization.

 

            5. The rules proposed to be repealed are as follows:

 

            24.168.406 MILITARY TRAINING OR EXPERIENCE 

 

            AUTH: 37-1-145, MCA

            IMP:     37-1-145, MCA

 

REASON: Reasonable necessity exists to repeal this rule, effective October 1, 2023, at the earliest, due to House Bill 583 (2023).  That legislation amends 37-1-145, MCA, and eliminates the requirement for adoption by the board of a specific military training rule, setting forth specific obligations for the board to accept military experience for granting licensure.  As such, the need for this rule is obsolete.

 

            24.168.411 GENERAL PRACTICE REQUIREMENTS 

 

            AUTH: 37-1-131, 37-10-202, MCA

            IMP:     37-1-131, 37-10-202, MCA

 

REASON: Reasonable necessity exists to repeal this rule because (1) is duplicative of ARM 24.168.2301(1)(f), in that it protects optometrist practice from undue influence by unlicensed individuals.  Some concern has been previously expressed that this rule may protect against problematic practice physical locations.  However, this rule does not address practice location.  Section (2) is proposed in this rulemaking to be included within ARM 24.168.2301.

 

            24.168.2307 SCREENING PANEL

 

            AUTH: 37-1-131, MCA

            IMP:     37-1-131, 37-1-307, MCA

 

REASON: Reasonable necessity exists to repeal this rule because it is unnecessary.  The creation of screening panels is statutorily driven, and does not require an administrative rule to effectuate.  Repealing the rule assists in creating simplicity, brevity, and clarity in the administrative rules of the board.

 

            6. Concerned persons may present their data, views, or arguments at the hearing. Written data, views, or arguments may also be submitted at dli.mt.gov/rules or P.O. Box 1728; Helena, Montana 59624.  Comments must be received no later than 5:00 p.m., October 6, 2023.

 

            7. An electronic copy of this notice of public hearing is available at dli.mt.gov/rules and sosmt.gov/ARM/register.

 

            8. The agency maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the agency. Persons wishing to have their name added to the list may sign up at dli.mt.gov/rules or by sending a letter to P.O. Box 1728, Helena, Montana 59624 and indicating the program or programs about which they wish to receive notices. 

 

            9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

            10. Pursuant to 2-4-111, MCA, the agency has determined that the rule changes proposed in this notice will not have a significant and direct impact upon small businesses.

 

            11. Department staff has been designated to preside over and conduct this hearing.

 

	BOARD OF OPTOMETRY DOUGLAS KIMBALL, O.D. PRESIDENT
/s/ QUINLAN L. O'CONNOR Quinlan L. O'Connor Rule Reviewer	/s/ SARAH SWANSON Sarah Swanson, Commissioner DEPARTMENT OF LABOR AND INDUSTRY

 

 

            Certified to the Secretary of State August 29, 2023.