Eye care consumer protection-2.

2016
STATE OF WYOMING
16LSO-0416
ENGROSSED
2.1

SENATE FILE

NO.

SF0095

Eye care consumer protection-2.

Sponsored by:
Senator(s) Barnard, Driskill and Hicks

A BILL

for

AN ACT relating to consumer protection; creating the Consumer Protection in Eye Care Act; providing definitions; specifying prohibited acts; providing exemptions; providing requirements to operate a kiosk; establishing standards as specified; providing for enforcement as specified; providing rulemaking authority; providing for a repeal date; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 33
‑
23
‑
118 and 40
‑
12
‑
701 through 40
‑
12
‑
707 are created to read:

33
‑
23
‑
118
.

Enforcement.

The board shall enforce the provisions of the Consumer Protection in Eye Care Act, W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707.

ARTICLE 7
CONSUMER PROTECTION IN EYE CARE ACT

40
‑
12
‑
701
.

Short title.

This act may be cited as the "Wyoming Consumer Protection in Eye Care Act."

40
‑
12
‑
702
.

Definitions.

(a)

As used in this act:

(i)

"Board" means the Wyoming state board of examiners in optometry, created by W.S. 33
‑
23
‑
104;

(
i
i)

"Corrective optical aid" means any contact lens, eyeglasses or other optical device or instrument used to correct or enhance vision or for therapeutic purposes;

(ii
i
)

"Dispense" means to furnish a corrective optical aid to a person;

(i
v
)

"Established treatment site" means a location where a person seeks care from a provider through a provider patient relationship and which maintains sufficient technology and equipment to permit an adequate physical evaluation as appropriate for the person’s presenting complaint;

(v)

"Eye examination" means a
n
assessment of the ocular health and visual status of a person to establish a medical diagnosis or to correct vision disorders but does not include examinations consisting solely of objective refractive data or information generated by an automated testing device, including an autorefractor;

(v
i
)

"In
‑
person evaluation" means an eye examination conducted by a provider who is at the same physical location as the person undergoing the eye examination;

(v
i
i)

"Kiosk" means automated equipment or an application designed to be used on a telephone, computer or Internet based device that can be used in person or remotely to conduct
or assist with any component of
an eye examination;

(vi
i
i)

"Over
‑
the
‑
counter optical aid" means any
ready to wear
eyeglasses or other optical device or instrument excluding contact lenses that:

(A)

Are sold over the counter where consumer selects the device to be purchased;

(B)

Have uniform
lenses.

(
ix
)

"Prescription" means an order, formula or recipe issued in any form of oral, written, electronic or other means of transmission by a provider based on the results of an eye examination;

(x)

"Provider" means a person licensed as an optometrist under the provisions of W.S. 33
‑
23
‑
101 through 33
‑
23
‑
118;

(x
i
)

"This act" means W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707.

40
‑
12
‑
703
.

Prohibited acts
; exemptions
.

(a)

No person in this state may dispense any corrective optical aid, other than an over
‑
the
‑
counter optical aid, to another person without a valid prescription from a provider. A valid prescription for a corrective optical aid shall:

(i)

Contain an expiration date of not less than one (1) year from the date of the eye examination by the provider or a statement by the provider of the reasons why a shorter time is appropriate based on the medical needs of the person issued the prescription;

(ii)

Take into consideration any medical findings and any refractive error discovered during the eye examination;
and

(i
ii
)

Be released by a provider pursuant to W.S. 33
‑
23
‑
101(
d).

(b)

Nothing in this act shall be construed as restricting the practice, services or activities of any person licensed under title 33 of Wyoming statutes while practicing within the scope of practice provided under the person's licensure act under title 33 of Wyoming statutes.

40
‑
12
‑
704
.

Kiosk operation; requirements.

(a)

No person shall operate a kiosk unless:

(i)

The federal food and drug administration has approved the intended use of the kiosk;

(ii)

The procedure for which the kiosk is used has a recognized current procedural terminology code maintained by the American Medical Association;

(iii)

The kiosk is designed and operated in a manner that provides any accommodation required by the
federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., as the act existed on January 1, 2015;

(iv)

The kiosk and accompanying technology used to collect and transmit information and data, including photographs and scans, comply with the federal Health Insurance Portability and Accountability Act of 1996,
42 U.S.C. § 300gg
,
29 U.S.C. § 1181

et seq.,
and
42 U.S.C. 1320d

et seq
.
,
as the act existed on January 1, 2015;

(v)

Diagnostic information and data, including photographs and scans, gathered by the kiosk are read and interpreted by a provider who shall:

(A)

Establish the identity of the person engaging kiosk services; and

(B)

Ensure that the person engaging kiosk services has previously had at least one (1) in
‑
person evaluation at an established treatment site
with a provider within two (2) years of engaging kiosk services
, provided, however, that an in
‑
person evaluation is not required for new conditions relating to a provider's existing patient
unless the provider deems that an in
‑
person evaluation is necessary to provide adequate care for that patient.

(vi)

The kiosk prominently displays the name and state license number of the provider who will read and interpret the diagnostic information and data, including photographs and scans, produced by the kiosk; and

(vii)

The owner, operator or lessee of the kiosk maintains liability insurance in an amount established by rule
s promulgated pursuant to this act
to cover claims made by persons diagnosed or treated based on information and data, including photographs and scans, generated by the kiosk.

40
‑
12
‑
705
.

Standards.

Evaluation, treatment and consultation recommendations made using a kiosk, including electronically generated prescriptions, shall be held to the same standards of appropriate practice as those who conduct in
‑
person evaluations.

40
‑
12
‑
706
.

Violations; enforcement.

(a)

Any person who violates any provision of W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707 is guilty of a misdemeanor and upon conviction shall be fined not more than seven hundred fifty dollars ($750.00) or imprisoned not more than six (6) months in the county jail, or both.

(b)

For any person aggrieved by a violation of W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707, the Wyoming state board of examiners of optometry, the attorney general or the district attorney may institute suit in the county in which the violation of W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707 occurred to require enforcement by injunctive procedures and to recover a civil penalty not to exceed ten thousand dollars ($10,000.00) for each separate violation, plus costs.

(c)

Where a civil penalty is sought the defendant shall be entitled to a jury trial.

40
‑
12
‑
707
.

R
ulemaking.

The board shall adopt rules and regulations to administer this act pursuant to the Wyoming Administrative Procedure Act, W.S. 16
‑
3
‑
101 et seq.

Section 2
.

W.S. 33
‑
23
‑
101(
a)(ix) and (e)

is
amended to read:

33
‑
23
‑
101
.

Definitions and exceptions.

(a)

As used in this act:

(ix)

"This act" means W.S. 33
‑
23
‑
101 through
33
‑
23
‑
117
33
‑
23
‑
118
.

(e)

The provisions of this chapter do not prohibit the sale of goggles, sunglasses, colored glasses or occupational eye
‑
protective devices if they do not have refractive values, nor do the provisions of this act prohibit the sale of complete ready
‑
to
‑
wear eyeglasses as merchandise by any person not holding himself out as competent to examine, test or prescribe for the human eye or its refractive errors.
The provisions of this chapter
also
do not prohibit the sale of over
‑
the
‑
counter optical aids, as provided in W.S. 40
‑
12
‑
701 through 40
‑
12
‑
707.

Section 3
.

W.S. 33
‑
23
‑
118 and 40
‑
12
‑
701 through 40
‑
12
‑
707 are repealed effective July 1, 2027.

Section
4
.

This act is effective July 1, 2016
.

(END)

1
SF0095