Changes to Existing Law

It is a Class 2 misdemeanor for any person who is not the holder of a certificate of registration or exemption, issued and recorded as provided in this chapter, to practice or offer to practice optometry within the stateNo person may engage in the practice of optometry, display a sign, or in any way advertise or hold oneself out as an optometrist, unless the person holds a current license issued by the board pursuant to this chapter. A violation of this section is a Class 2 misdemeanor.

A person entitled to practice optometry in South Dakota who is not already registered is any person who furnishes the Board of Examiners in Optometry satisfactory evidence as followsThe board may issue a license to an applicant that: (1) That the person is of the full age ofSubmits an application on a form prescribed by the board; (2) Pays the application fee set by rules promulgated by the board pursuant to chapter 1-26, not to exceed one hundred seventy-five dollars; (3) Is eighteen years or older, and a citizen of the United States or a resident of South Dakota; (2)(4) That the person isIs of good moral character; (3)(5) That the person isIs a graduate of a recognized Class A an optometric school or college approved by the Board of Examiners Accreditation Council on Optometric Education or the board; and (4)(6) That the person possesses a licensed certificate of registration obtained by taking and satisfactorily passing an examination given by the board for purpose of determining the person's qualifications for the practice of optometryHas passed all required sections of a national board examination approved by the board; and (7) Has committed no act for which disciplinary action may be justified.

30 -7-12.1. Any applicant for licensure as an optometrist after July 1, 1986, shall satisfactorily complete all pharmacology studies and clinical experience required by this chapter and the board, and attain a passing grade on the pharmacology portion of the a national board examination approved by the board.

By way of substitution for the requirements in subdivisions 36-7-11(3), (4), and (5) and in §§ 36-7-12, 36-7-12.1 and 36-7-31, a candidate for licensure in this state may be given a certificate of registration by paying a fee, not to exceed one hundred seventy-five dollars, upon proof to the Board of Examiners by certified copy of the certificate of registration issued to the candidate by another United States jurisdiction where the requirements for registration are deemed by the South Dakota State Board to be the equivalent to those provided by this chapter if the candidate passes the examination administered by the board required by this chapter or presents satisfactory evidence to the board of having passed substantially similar examinations in another jurisdiction, and the candidate has practiced optometry in the other state for at least five consecutive years immediately prior to the candidate's application for registration in South Dakota. The board may promulgate rules, pursuant to chapter 1-26, to establish standards for licensure through endorsement pursuant to this section, including the level and status of licensure required, the evidence required to establish that the requirements for registration in the jurisdiction in which the candidate is licensed are substantially similar to those required by this chapter, the procedure and contents required for submitting the application, any additional education, testing, or training necessary to ensure the competency of the candidate, and the fee provided for in this sectionThe board may issue a license to practice as an optometrist by endorsement to a person who has been licensed as an optometrist under the laws of another state or territory under United States jurisdiction if: (1) The person submits an application and pays the required fee set by rules promulgated by the board pursuant to chapter 1-26, not to exceed one hundred seventy-five dollars; (2) In the opinion of the board, the applicant meets the qualifications required of an optometrist in this state at the time of the applicant's original licensure; and (3) The applicant has engaged in the practice of optometry for at least five consecutive years immediately preceding application under this section. The board may require additional education, testing, or training before granting licensure if competency of any applicant is in question. Any applicant who has been denied 34 a license by the board must reapply and meet all initial licensure requirements before the board may grant licensure.

The Board of Examiners in Optometry shall have power to make and promulgate under the provisions of chapter 1-26 such rules and regulations, not inconsistent with the laws of this state to board may: (1) Provide for a method of examination of candidates for registration. (2) Define what shall constitute a recognized Class A optometric school. (3) Govern the practice of optometry, including the adoption of a code of ethics, or rules of professional conduct for all registrants. (4) Govern the minimum amount and kind of continuing education in optometry to be required triennially of each optometrist seeking relicense to practice optometry in the State of South DakotaPromote the safe and qualified practice of optometry; (2) Promulgate rules pursuant to chapter 1-26 to govern standards for the safe and qualified practice of optometry, to adopt a code of ethics or professional conduct, and to establish criteria for advertising by optometrists; (3) Prepare an annual budget; (4) Expend funds for administrative, legal, consultative, and other necessary services from fees received by the board; (5) Examine, license, endorse, and renew the licenses of qualified applicants; (6) Define what constitutes a recognized optometric school; (7) Establish the minimum amount and type of continuing education to be required of each optometrist seeking renewal of a license; and (8) Administer oaths and take testimony pursuant to §§ 1-26-19.1 and 1-26-19.2.

Every person who practices optometry optometrist in South Dakota this state shall furnish the Board of Examiners board satisfactory evidence that he the licensee practices optometry as a profession, in his an individual personal capacity under his the optometrist's own name or as a partner of another registered licensed optometrist and not as a corporation, limited liability company or agent, employee, officer, member, or partner of a corporation or limited liability company, except where a practice as an officer, employee, member, or agent of a corporation is established under the terms of chapter 47-11B. A violation of this section is a Class 2 misdemeanor. 33 Nothing in this section shall preclude precludes a licensed optometrist from serving as a shareholder, officer, or director of a corporation established under the terms of chapter 58-41 as a health maintenance organization or other alternate health care delivery system including, but not limited to, a preferred provider organizations organization, individual practices association, or other form of entity whatever established for group health care purposes.

Every person practicing optometry shall: (1) Display the certificate of registration or exemption in a conspicuous place in the principal office wherein he practices; and (2) Exhibit the certificate to the State Board of Examiners or its authorized representative upon request. Each optometrist shall conspicuously display any license, and subsequent proof of renewal, issued by the board under this chapter at the optometrist's primary place of practice. A violation of this section is a Class 2 misdemeanor.

Each licensed optometrist residing in or in active practice within the State of South Dakota shall, on or before the first day of October in each year pay to the State Board of Examiners in Optometry a fee to be set in rule by the Board of Examiners, in default of which the board may, in compliance with chapter 1-26, revoke his license or certificate, either for failure to comply with the continuing education requirements or nonpayment of such fee, but the payment of such fee at or before the time of hearing, with such additional sum as may be fixed in rule by the board, shall excuse the default optometrist licensed pursuant to this chapter shall apply, on a form approved by the board, for a renewal of the license. The renewal must be issued by the board upon payment of a fee set by the board by rule promulgated pursuant to chapter 1-26, not to exceed three hundred dollars, and upon verification that the optometrist has met the requirements for continuing education as provided in § 36-7-20.2. The renewal must be in the form of a receipt acknowledging payment of the required fee and signed by the secretary of the board. Failure to renew the license on or before October first of each year constitutes a forfeiture of the optometrist's license. The license may be renewed at the discretion of the board upon application and payment of the fee required by § 36-7-11, and a late fee set 33 by the board by rules promulgated pursuant to chapter 1-26, not to exceed one hundred dollars for each month the renewal is late.

The length of study required by § 36-7-20.1 shall be prescribed by the Board of Examiners in Optometry but shall not exceed forty-five hours in any three consecutive calendar years board shall establish requirements for continuing education by rules promulgated pursuant to chapter 1-26. Attendance must be at aAny continuing education course or courses must be certified by the Council of Optometric Practitioner Education or approved by the board. Attendance at any course or courses of study are to be certified by the board upon a form provided by the board and shall must be submitted by each registered optometrist at the time he makes application to the board for the renewal of his license and payment of his renewal fee when renewing a license pursuant to § 36-7-20. In no instance may the board require a greater number of hours of study than are available at approved courses held within the state and shall be allowed to The board may waive any or all of this requirement in case of certified illness or undue hardship.

The Board of Examiners shall have power to board may remit the license fee of all registrants while any optometrist on active duty in the armed forces of the United States. For the purposes of this section, the term, active duty in the armed forces, means full-time duty in the active military services and reserve components of the United States, including the National Guard and Reserve, while serving under published orders for active duty or full-time training.

The Board of Examiners board, in compliance with chapter 1-26, may revoke the certificate of impose disciplinary sanctions against any registrant optometrist for any one, or any combination, of the following causes: (1) Conviction of a felony, as shown by a certified copy of the record of the court of conviction; 30 (2) Obtaining, or attempting to obtain, a certificate of registration license by fraudulent misrepresentation; (3) Malpractice; (4) Continued practice by a person when knowingly having an infectious or contagious disease, or after sustaining a physical or mental disability that renders further practice potentially harmful or dangerous; (5) Habitual drunkenness or habitual addiction to the use of morphine, cocaine, or other habit-forming drugsUse of alcohol or other substances that renders the optometrist unfit to practice with reasonable skill and safety; (6) Unprofessional conduct; or (7) Failure to submit to or cooperate with the criminal background investigation requested by the board.

The term, unprofessional conduct, as used in this chapter, means: (1) Any conduct of a character likely to deceive or defraud the public; (2) The loaning of a license or certificate by any licensed optometrist or any person or corporation; (3) The employment of cappers or steerers to obtain businessViolating any provision of this chapter or any rule promulgated by the board; (4) Splitting or dividing a fee or compensation with any person or corporation; (5) The obtaining of any fee or compensation by fraud or misrepresentation; (6) Employing, either directly or indirectly, any suspended or unlicensed optometrist to perform any work covered by this chapter; (7) The advertising by any means whatsoever of optometric practice or, treatment or, advice, or costs in which untruthful, improbable, misleading, or impossible statements are made; (8) Advertising by printed matter, radio, display, or any other means, the quotation of prices for a discount on or any specific amount of payment for eyeglasses, spectacles, or accessories thereto, ophthalmic lenses, frames or mountings, or the phrases "free examinations," "moderate prices," "low prices," "guaranteed glasses," "satisfaction guaranteed," or any variations thereof, or words of similar import; 32 (9) Seeking patronage by means of handbills, posters, circulars, newspapers, radio or periodicals, which means set forth more than the name, profession, title, location, phone number and office hours of the optometrist; (10) Advertising wherein the optometrist employs any form of newspaper, sign, literature or directory professional card or window or public exhibition display of optical materials, handbills, road signs, clock signs, novelties or favors contrary to or violating the code of ethics or any of the other lawful rules and regulations properly promulgated by the state board Failure to maintain adequate safety and sanitary conditions, or meet the requirements of an optometric clinic in accordance with the standards set forth in this chapter and any rule promulgated by the board in accordance with chapter 1-26; (9) Inappropriate prescribing to any person in quantities and under circumstances apparent to the board that the prescription was not made for legitimate medicinal purposes related to the practice optometry, or prescribing in a manner or in amounts that, in the opinion of the board, endanger the wellbeing of a patient or the public in general; (11)(10) The failure to refer a patient to a physician licensed pursuant to chapter 36- 4 if examination of the eye indicates a substantial likelihood of pathology which that requires the attention of a physician licensed pursuant to chapter 36-4; (12)(11) Any conviction of a felony or violation of a Board of Examiners in Optometry rule as determined by the board after notice and hearing pursuant to chapter 1-26 criminal offense related to the practice of optometry; (13)(12) Consistently misdiagnosing or consistently prescribing improper therapy; or (14)(13) Failing to hold in professional confidence all information concerning a patient; (14) Failing to comply with state and federal laws on keeping records regarding possessing and dispensing controlled substances or habit-forming drugs; (15) Falsifying the records of a patient; (16) Exercising influence within the optometrist-patient relationship for the purpose of engaging a patient in sexual activity. For purposes of this subdivision, the patient is presumed incapable of giving free, full, and informed consent to sexual activity with the optometrist; (17) Engaging in sexual harassment; (18) Any practice or conduct that tends to constitute a danger to the health, welfare, or safety of patients or the public, or engaging in conduct that is unbecoming of an optometrist; 35 (19) Discipline by the licensing board of another state or territory under United States jurisdiction if the violation is also a violation of this chapter or any rule promulgated by the board; (20) Not reporting discipline by a licensing board of another state or territory under United States jurisdiction to the board; and (21) Not reporting a conviction of a criminal offense arising out of the practice of optometry to the board. Unprofessional conduct, as defined in this section, shall may not be the basis for criminal prosecution unless otherwise declared unlawful.

After one year, and upon application and proof that the disqualification has ceased, the Board of Examiners board may reinstate a person whose certificate license has been revoked, if no other basis for denial of the license exists.

The State Board of Examiners in Optometry consists of four members appointed by the Governor, three of whom shall be fully qualified and licensed to prescribe and administer diagnostic and therapeutic pharmaceutical agents under this chapter. Each member shall have been a resident of this state actually engaged in the practice of optometry at least five years preceding the appointment. Governor shall appoint five members to the board. Four members must be optometrists in active practice in this state for at least five years preceding the appointment. One member must be a representative of the public who is a resident of this state and who is not associated with, or financially interested in, the practice or business of optometry. The term of each member is three years commencing on July first. The Governor shall, by appointment, fill any vacancy. No member may serve more than three consecutive, full terms. The appointment of a person to an unexpired term is not considered a full term. No member of any optical school or college, or instructor in optometry, or person connected therewith, or any jobber or jobber's representative, is eligible for the board.

The Board of Examiners in Optometry board shall continue within the Department of Health, and shall retain all its prescribed functions, including administrative 23 functions. The board shall submit such records, information, and reports in the form and at such times as required by the secretary of health, except that the board shall report at least annually.