SECTIONS 2540-2545 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 2540-2545

2540. No person other than a physician and surgeon or optometrist
may measure the powers or range of human vision or determine the
accommodative and refractive status of the human eye or the scope of
its functions in general or prescribe ophthalmic devices.

2540.1. Any reference to the "Division of Medical Quality" or to
the "Division of Licensing" in this chapter shall be deemed to refer
to the Medical Board of California.

2541. A prescription ophthalmic device includes each of the
following:
(a) Any spectacle or contact lens ordered by a physician and
surgeon or optometrist, that alters or changes the visual powers of
the human eye.
(b) Any contact lens described in paragraph (1) of subdivision (n)
of Section 520 of the federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 360j and following).
(c) Any plano contact lens that is marketed or offered for sale in
this state. "Plano contact lens" means a zero-power or noncorrective
contact lens intended to change the appearance of the normal eye in
a decorative fashion.

2541.1. (a) A spectacle lens prescription shall include all of the
following:
(1) The dioptric power of the lens. When the prescription needed
by the patient has not changed since the previous examination, the
prescriber may write on the prescription form "copy lenses currently
worn" instead.
(2) The expiration date of the prescription.
(3) The date of the issuance of the prescription.
(4) The name, address, telephone number, prescriber's license
number, and signature of the prescribing optometrist or physician and
surgeon.
(5) The name of the person to whom the prescription is issued.
(b) The expiration date of a spectacle lens prescription shall not
be less than two to four years from the date of issuance unless the
patient's history or current circumstances establish a reasonable
probability of changes in the patient's vision of sufficient
magnitude to necessitate reexamination earlier than two years, or
presence or probability of visual abnormalities related to ocular or
systemic disease indicates, the need for reexamination of the patient
earlier than two years. In no circumstances shall the expiration
date be shorter than the period of time recommended by the prescriber
for reexamination of the patient. Establishing an expiration date
that is not consistent with this section shall be regarded as
unprofessional conduct by the board that issued the prescriber's
certificate to practice.
(c) The prescriber of a spectacle lens shall orally inform the
patient of the expiration date of a spectacle lens prescription at
the time the prescription is issued. The expiration date of a
prescription may be extended by the prescriber and transmitted by
telephone, electronic mail, or any other means of communication. An
oral prescription for a spectacle lens shall be reduced to writing
and a copy of that writing shall be sent to the prescriber prior to
the delivery of the lenses to the person to whom the prescription is
issued.
(d) A prescriber of a spectacle lens shall abide by the rules
pertaining to spectacle lens prescriptions and eye examinations
adopted by the Federal Trade Commission found in Part 456 of Title 16
of the Code of Federal Regulations.
(e) An expired prescription may be filled if all of the following
conditions exist:
(1) The patient's spectacles are lost, broken, or damaged to a
degree that renders them unusable.
(2) Upon dispensing a prescription pursuant to this subdivision,
the person dispensing shall recommend that the patient return to the
optometrist or physician and surgeon who issued the prescription for
an eye examination and provide the prescriber with a written
notification of the prescription that was filled.

2541.2. (a) (1) The expiration date of a contact lens prescription
shall not be less than one to two years from the date of issuance,
unless the patient's history or current circumstances establish a
reasonable probability of changes in the patient's vision of
sufficient magnitude to necessitate reexamination earlier than one
year, or the presence or probability of visual abnormalities related
to ocular or systemic disease indicate the need for reexamination of
the patient earlier than one year. If the expiration date of a
prescription is less than one year, the health-related reasons for
the limitation shall be documented in the patient's medical record.
In no circumstances shall the prescription expiration date be less
than the period of time recommended by the prescriber for
reexamination of the patient.
(2) For the purposes of this subdivision, the date of issuance is
the date the patient receives a copy of the prescription.
(3) Establishing an expiration date that is not consistent with
this section shall be regarded as unprofessional conduct by the board
that issued the prescriber's license to practice.
(b) Upon completion of the eye examination or, if applicable, the
contact lens fitting process for a patient as described in
subdivision (f), a prescriber or a registered dispensing optician
shall provide the patient with a copy of the patient's contact lens
prescription signed by the prescriber, unless the prescription meets
the standards set forth in subdivision (c).
(c) A prescriber shall retain professional discretion regarding
the release of the contact lens prescription for patients who wear
the following types of contact lenses:
(1) Rigid gas permeables.
(2) Bitoric gas permeables.
(3) Bifocal gas permeables.
(4) Keratoconus lenses.
(5) Custom designed lenses that are manufactured for an individual
patient and are not mass produced.
(d) If a patient places an order with a contact lens seller other
than a physician and surgeon, an optometrist, or a registered
dispensing optician, the prescriber or his or her authorized agent
shall, upon request of the contact lens seller and in the absence of
the actual prescription, attempt to promptly confirm the information
contained in the prescription through direct communication with the
contact lens seller.
(e) The contact lens prescription shall include sufficient
information for the complete and accurate filling of a prescription,
including, but not limited to, the power, the material or
manufacturer or both, the base curve or appropriate designation, the
diameter when appropriate, and an appropriate expiration date. When a
provider prescribes a private label contact lens for a patient, the
prescription shall include the name of the manufacturer, the trade
name of the private label brand, and, if applicable, the trade name
of the equivalent national brand.
(f) The contact lens fitting process begins after the initial
comprehensive eye examination, and includes an examination to
determine the lens specifications, an initial evaluation of the fit
of the lens on the patient's eye, except in the case of a renewal
prescription of an established patient, and followup examinations
that are medically necessary, and ends when the prescriber or
registered dispensing optician determines that an appropriate fit has
been achieved, or in the case of a prescription renewal for an
established patient, the prescriber determines that there is no
change in the prescription.
(g) The payment of professional fees for the eye exam, fitting,
and evaluation may be required prior to the release of the
prescription, but only if the prescriber would have required
immediate payment from the patient had the examination revealed that
no ophthalmic goods were required. A prescriber or registered
dispensing optician shall not charge the patient any fee as a
condition to releasing the prescription to the patient. A prescriber
may charge an additional fee for verifying ophthalmic goods dispensed
by another seller if the additional fee is imposed at the time the
verification is performed.
(h) A prescriber shall not condition the availability of an eye
examination, a contact lens fitting, or the release of a contact lens
prescription on a requirement that the patient agree to purchase
contact lenses from that prescriber. A registered dispensing optician
shall not condition the availability of a contact lens fitting on a
requirement that the patient agrees to purchase contact lenses from
that registered dispensing optician.
(i) A prescriber or a registered dispensing optician shall not
place on the contact lens prescription, deliver to the patient, or
require a patient to sign a form or notice waiving or disclaiming the
liability or responsibility of the prescriber or registered
dispensing optician for the accuracy of the ophthalmic goods and
services dispensed by another seller. This prohibition against
waivers and disclaimers shall not impose liability on a prescriber or
registered dispensing optician for the ophthalmic goods and services
dispensed by another seller pursuant to the prescriber's
prescription.
(j) The willful failure or refusal of a prescriber to comply with
the provisions of this section shall constitute grounds for
professional discipline, including, but not limited to, the
imposition of a fine or the suspension or revocation of the
prescriber's license. The Medical Board of California and the State
Board of Optometry shall adopt regulations, to implement this
subdivision, including, but not limited to, standards for processing
complaints each receives regarding this subdivision.
(k) For the purposes of this section, "prescriber" means a
physician and surgeon or an optometrist.
(l) Nothing in this section shall be construed to expand the scope
of practice of a registered dispensing optician as defined in
Sections 2542, 2543, and Chapter 5.5 (commencing with Section 2550).

2541.3. (a) The State Department of Public Health, the State Board
of Optometry and the Division of Licensing and Division of Medical
Quality of the Medical Board of California shall prepare and adopt
quality standards and adopt regulations relating to prescription
ophthalmic devices, including, but not limited to, lenses, frames,
and contact lenses. In promulgating these rules and regulations, the
department and the boards shall adopt the current standards of the
American National Standards Institute regarding ophthalmic materials.
Nothing in this section shall prohibit the department and the boards
from jointly adopting subsequent standards that are equivalent or
more stringent than the current standards of the American National
Standards Institute regarding ophthalmic materials.
(b) No individual or group that deals with prescription ophthalmic
devices, including, but not limited to, distributors, dispensers,
manufacturers, laboratories, optometrists, or ophthalmologists shall
sell, dispense, or furnish any prescription ophthalmic device that
does not meet the minimum standards set by the State Department of
Public Health, the State Board of Optometry, or the Division of
Licensing and Division of Medical Quality of the Medical Board of
California.
(c) Any violation of the regulations adopted by the State
Department of Public Health, the State Board of Optometry, or the
Division of Licensing and Division of Medical Quality of the Medical
Board of California pursuant to this section shall be a misdemeanor.
(d) Any optometrist, ophthalmologist, or dispensing optician who
violates the regulations adopted by the State Department of Public
Health, the State Board of Optometry, or the Division of Licensing
and Division of Medical Quality of the Medical Board of California
pursuant to this section shall be subject to disciplinary action by
his or her licensing board.
(e) The State Board of Optometry or the Division of Licensing and
Division of Medical Quality of the Medical Board of California may
send any prescription ophthalmic device to the State Department of
Public Health for testing as to whether or not the device meets
established standards adopted pursuant to this section, which testing
shall take precedence over any other prescription ophthalmic device
testing being conducted by the department. The department may conduct
the testing in its own facilities or may contract with any other
facility to conduct the testing.

2541.6. No prescription ophthalmic device that does not meet the
standards adopted by the State Department of Public Health, the State
Board of Optometry, or the Division of Licensing and Division of
Medical Quality of the Medical Board of California under Section
2541.3 shall be purchased with state funds.

2542. A registered dispensing optician shall fit, adjust, or
dispense contact lenses, including plano contact lenses, only on the
valid prescription of a physician and surgeon or optometrist, and
acting on the advice, direction, and responsibility of the physician
and surgeon or optometrist. The optician shall also comply with the
requirements of Section 2560. A registered dispensing optician shall
not fit a contact lens or lenses, or a plano contact lens or lenses,
unless the prescription specifically refers to and authorizes contact
lenses. A registered dispensing optician shall not fit a generic
type of contact lens or mode of wear for a contact lens contrary to
the type or mode, if any, referred to in the prescription.

2543. (a) Except as provided in the Nonresident Contact Lens Seller
Registration Act (Chapter 5.45 (commencing with Section 2546), the
right to dispense, sell or furnish prescription ophthalmic devices at
retail or to the person named in a prescription is limited
exclusively to licensed physicians and surgeons, licensed
optometrists, and registered dispensing opticians as provided in this
division. This section shall not be construed to affect licensing
requirements pursuant to Section 111615 of the Health and Safety
Code.
(b) It shall be considered a deceptive marketing practice for:
(1) Any licensed physician and surgeon, licensed optometrist, or
registered dispensing optician to publish or cause to be published
any advertisement or sales presentation relating to contact lenses
that represents that contact lenses may be obtained without
confirmation of a valid prescription.
(2) Any individual or entity who offers for sale plano contact
lenses, as defined in subdivision (c) of Section 2541, to represent
by any means that those lenses may be lawfully obtained without an
eye examination or confirmation of a valid prescription, or may be
dispensed or furnished to a purchaser without complying with the
requirements of Section 2562, except as provided in Chapter 5.45
(commencing with Section 2546).

2544. (a) Notwithstanding any other provision of law, an assistant
in any setting where optometry or ophthalmology is practiced who is
acting under the direct responsibility and supervision of a physician
and surgeon or optometrist may fit prescription lenses. Under the
direct responsibility and supervision of an ophthalmologist or
optometrist, an assistant in any setting where optometry or
ophthalmology is practiced may also do the following:
(1) Prepare patients for examination.
(2) Collect preliminary patient data, including taking a patient
history.
(3) Perform simple noninvasive testing of visual acuity, pupils,
and ocular motility.
(4) Perform automated visual field testing.
(5) Perform ophthalmic photography and digital imaging.
(6) Perform tonometry.
(7) Perform lensometry.
(8) Perform nonsubjective auto refraction in connection with
subjective refraction procedures performed by an ophthalmologist or
optometrist.
(9) Administer cycloplegiacs, mydriatics, and topical anesthetics
that are not controlled substances, for ophthalmic purposes.
(10) Perform pachymetry, keratometry, A scans, B scans, and
electrodiagnostic testing.
(b) For the purposes of this section, "setting" includes, but is
not limited to, any facility licensed by the State Department of
Public Health or the State Department of Social Services.
(c) Nothing in this section shall be construed to authorize
activities that corporations and other artificial legal entities are
prohibited from conducting by Section 2400.

2545. (a) Whenever any person has engaged, or is about to engage,
in any acts or practices which constitute, or will constitute, an
offense against this chapter, the superior court in and for the
county wherein the acts or practices take place, or are about to take
place, may issue an injunction, or other appropriate order,
restraining the conduct on application of the State Board of
Optometry, the Division of Licensing of the Medical Board of
California, the Osteopathic Medical Board of California, the Attorney
General, or the district attorney of the county.
The proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.
(b) (1) Any person who violates any of the provisions of this
chapter shall be subject to a fine of not less than one thousand
dollars ($1,000) nor more than two thousand five hundred dollars
($2,500) per violation. The fines collected pursuant to this section
from licensed physicians and surgeons and registered dispensing
opticians shall be available upon appropriation to the Medical Board
of California for the purposes of administration and enforcement. The
fines collected pursuant to this section from licensed optometrists
shall be deposited into the Optometry Fund and shall be available
upon appropriation to the State Board of Optometry for the purposes
of administration and enforcement.
(2) The Medical Board of California and the State Board of
Optometry shall adopt regulations implementing this section and shall
consider the following factors, including, but not limited to,
applicable enforcement penalties, prior conduct, gravity of the
offense, and the manner in which complaints will be processed.
(3) The proceedings under this section shall be conducted in
accordance with the provisions of Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code.