Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose.
Pursuant to §351.205 of the Act, the Board is authorized to adopt rules
relating to the investigation of complaints filed with the Board.
(b) Complaints. Complaints shall be submitted
on the official complaint form. The Board shall protect the identity of a
complainant in the investigative process to the extent possible. Complaints
shall contain the following information:
(1)
the name and contact information of the complainant (and patient);
(2) the name and contact information of the
person the complaint is filed against;
(3) the date, time, and place of occurrence
of alleged violation of the Act or Board rules;
(4) the type of service (in-person or
telehealth);
(5) the complete
description of incident giving rise to the complaint; and
(6) the express authorization to release
patient records to the Board where applicable.
(c) Classification of Complaints. All
complaints received shall be sent to the Executive Director. The Board shall
determine jurisdiction and distinguish between categories of complaints as
follows:
(1) Non-jurisdictional. A complaint
is non-jurisdictional if the Board does not have any authority over the subject
of the complaint. If possible, these complaints shall be referred to an agency
having jurisdiction over the complaint.
(2) Jurisdictional. A complaint is
jurisdictional if it alleges conduct that, if true, would constitute a
violation of the Act or Board rules. A jurisdictional complaint may require a
Board investigation including but not limited to a Board member expert review
and/or contractual third-party expert review. The Board shall further classify
these complaints according to the schedule in subsection (d) of this section.
These complaints shall be processed according to subsection (e) of this
section.
(d)
Classification of Jurisdictional Complaints. All jurisdictional complaints
shall be classified in one of the following categories:
(1) Complaints of high priority. This
includes, but is not limited to, complaints alleging:
(A) professional misconduct,
(B) qualifications of applicants or
licensees,
(C) unauthorized
practice;
(D) other acts or the
failure to act that potentially threatens the public health, and
(E) a violation of the professional standard
of care. The processing of these complaints shall have priority over normal
priority complaints. The Board shall evaluate complaints of high priority to
determine whether an emergency temporary suspension shall be sought under
§
277.8 of this title.
(2) Complaints of normal priority.
This includes, but is not limited to, complaints alleging:
(A) advertising violations,
(B) violations of the Act or Board Rules
resulting in economic harm, and
(C)
violations of the Act regarding notice that do not potentially threaten the
public health.
(3)
Glaucoma. All complaints received relating to glaucoma shall be considered
high-priority and shall be investigated pursuant to the process outlined by
§277.13 and §277.14.
(e) Investigation-Enforcement Committee.
(1) Makeup of Committee. The Chair shall
appoint a committee to consider all jurisdictional complaints referred from
Board staff. The committee shall be known as the Investigation-Enforcement
Committee and shall be composed of board members who are licensed optometrists
or therapeutic optometrists.
(2)
Authority of Committee. The Committee shall have the power to make
recommendations regarding resolution and disposition of specific cases such as
those regarding professional competency or recommendations regarding dismissals
of complaints and closure or investigations. The Committee may issue subpoenas
and subpoenas duces tecum to compel the attendance of witnesses and the
production of books, records, and documents, to issue commissions to take
depositions, to administer oaths and to take testimony concerning all matters
within the assigned jurisdiction. In addition to subpoena power, each member of
the committee may authorize the Executive Director to investigate an alleged
violation.
(3) Disposition of
Complaint. During the investigation of a filed jurisdictional complaint related
to professional competency, members of the Committee may determine:
(A) whether a violation of the Act or Board
rules has occurred;
(B) whether to
dismiss the matter and take no further action;
(C) whether to conduct further
investigations;
(D) whether to
forward to the Board the Committee's determination that a violation of the Act
may have occurred together with a recommendation that the Board issue a
remedial plan;
(E) whether to
forward to the Board the Committee's determination that a violation of the Act
may have occurred together with a recommendation that proceedings be instituted
with the State Office of Administrative Hearings to consider disciplinary
action, sanctions, administrative penalties, issuance of cease and desist
orders, or refusal to issue a license;
(F) whether to forward to the Board the
Committee's determination that some person, firm, or corporation may be
practicing optometry without a license or otherwise violating the provisions of
the Act, along with the members' recommendation that the board notify the
attorney general or appropriate district attorney with accompanying request
that appropriate action be taken in accordance with law; and
(G) whether to forward to the Executive
Director the Committee's determination of findings applicable to subparagraphs
(D) and (E) of this paragraph to issue a remedial plan or for assessment of
administrative penalties.
(f) Complaints Investigated by Staff. Board
staff may investigate jurisdictional complaints that do not directly relate to
patient care and the investigation or disposition of which do not require
expertise in optometry or therapeutic optometry. During the investigation,
Board staff may consult members of the Investigation-Enforcement Committee to
assist with the investigation. A complaint shall be directed to the
Investigation-Enforcement Committee if the Executive Director determines that
the complaint should not be dismissed or settled or the Executive Director is
unable to reach an agreed settlement.
(g) Notification and Request for Information.
Once an investigation commences, Board staff shall notify the subject of the
complaint and request a written response to the allegations along with patient
charts and any other relevant information. The subject of the complaint shall
have 14 days from the receipt of the Board's request to respond pursuant to
§
273.16 of this title. The
Executive Director may extend the time period upon a showing of good cause by
the subject of the complaint.
(h)
Dismissal and Tracking of Complaints. A complaint shall not be dismissed
without appropriate consideration. The Board and complainant shall be advised
of complaint dismissals. A complaint dismissed by the Executive Director shall
be approved by the Board at a Board Meeting. The Executive Director shall make
a report at each board meeting regarding complaints to the Board.
(i) Basic Competence Violations.
(1) If during the investigation of an
optometrist's or therapeutic optometrist's compliance with Section 351.353 of
the Act and §
279.1 or §
279.3 of this title, the
optometrist or therapeutic optometrist failed to complete all the of required
findings in an initial examination at which a prescription for corrective
lenses is written, the completed investigation report will be classified as a
complaint and forwarded by the Executive Director to the
Investigation-Enforcement Committee.
(2) In determining the action to take under
subsection (e)(3), if any, the Investigation-Enforcement Committee shall
consider the seriousness of the omitted finding, the compliance history of the
optometrist or therapeutic optometrist, and prior actions of the Board
concerning similar complaints. Omission of four or more basic competency
findings requires the committee members to conduct an informal
conference.
