S*489 Session 112 (1997-1998)
S*0489(Rat #0508, Act #0426 of 1998) General Bill, By Elliott
Similar(H 3587)
A BILL TO AMEND TITLE 40, CHAPTER 38, 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.
03/05/97 Senate Introduced and read first time SJ-12
03/05/97 Senate Referred to Committee on Labor, Commerce and
Industry SJ-12
04/10/97 Senate Committee report: Favorable with amendment Labor,
Commerce and Industry SJ-17
04/15/97 Senate Amended SJ-39
04/15/97 Senate Read second time SJ-39
04/15/97 Senate Unanimous consent for third reading on next
legislative day SJ-39
04/16/97 Senate Read third time and sent to House SJ-26
04/17/97 House Introduced and read first time HJ-21
04/17/97 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-21
05/22/97 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs HJ-12
05/27/97 House Amended HJ-23
05/27/97 House Read second time HJ-24
05/28/97 House Read third time and returned to Senate with
amendments HJ-9
05/29/97 Senate Non-concurrence in House amendment SJ-43
06/03/97 House House insists upon amendment and conference
committee appointed Reps. Reps. M. Hines, Battle
& Parks HJ-52
06/04/97 Senate Conference committee appointed Sens. Moore,
O'Dell, Alexander SJ-20
06/05/97 Senate Conference report received and adopted SJ-212
06/05/97 House Conference report received HJ-63
06/05/97 House Recommitted to conference committee HJ-81
06/02/98 House Rep. Jordan replaces Rep. Parks on Conference
Committee HJ-198
06/04/98 House Conference report received and adopted HJ-30
06/04/98 Senate Adoption of previous conference report
reconsidered and withdrawn SJ-137
06/04/98 Senate Conference report received and adopted SJ-137
06/04/98 Senate Ordered enrolled for ratification SJ-137
06/10/98 Ratified R 508
06/15/98 Signed By Governor
06/15/98 Effective date 06/15/98
07/07/98 Copies available
07/07/98 Act No. 426
(A426, R508, S489)
AN ACT TO AMEND TITLE 40, CHAPTER 38, 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:
Chapter revised
SECTION 1. Chapter 38, Title 40 of the 1976 Code is amended to
read:
CHAPTER 38
Opticians
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.
(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;
(3) 'Board' means the South Carolina Board of Examiners in
Opticianry; and
(4) 'Direct supervision' means, with regard to a supervisee, the
licensed optician must be on the premises at all times.
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. Contact lenses may be dispensed only 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 his direct 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 working day including, but not limited to,
lunch or other customary, practice-related absences; however, no contact
lenses may be dispensed during the optician's absence.
Section 40-38-310. (A) 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. 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.
(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.
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 15th day of June, 1998. |