NEWFOUNDLAND REGULATION 105/98

Short title

1. These regulations may be cited as the Optometry Regulations, 1998.

Definitions

2. In these regulations,

(a) "Act" means the Optometry Act;

(b) "conflict of interest" means an action or a relationship which conflicts, or may reasonably be perceived to conflict with a practitioner's duty to ensure that all professional decisions are made in the patient's best interest and without reference to other criteria and includes a situation or circumstance described in section 10; and

PART I
LICENSING

Qualifications to practise

3. An applicant for registration as a practitioner shall

(a) complete an application for registration in the form provided by the board;

(b) submit

(i) satisfactory proof of graduation in a course in optometry from the School of Optometry, University of Waterloo or Universite de Montreal or another Canadian school of optometry approved by the board,

(ii) satisfactory proof of graduation in a course in optometry from another school of optometry considered by the board, at the time of graduation and application, to be comparable to the standards of the institutions referred to in subparagraph (i), or

(iii) satisfactory proof that

(A) he or she is or was engaged in the practice of optometry in another jurisdiction and is in good standing with the licensing body in that jurisdiction, and

(B) satisfactory proof of graduation in a course in optometry from a school of optometry considered by the board, at the time of graduation and application, to be comparable to the standards of the institutions referred to in subparagraph (i);

(c) submit evidence satisfactory to the board that the applicant has not been convicted of misconduct in a jurisdiction where an applicant is or was engaged in the practice of optometry;

(d) submit evidence satisfactory to the board that there are no current proceedings against the applicant for professional misconduct in a jurisdiction where the applicant is or was engaged in the practice of optometry;

(e) submit evidence satisfactory to the board that he or she is a Canadian citizen, holds an employment visa or has permanent resident status under the Immigration Act (Canada);

(f) successfully complete the examinations set or approved by the board;

(g) pay any fees set by the board; and

(h) submit evidence that he or she carries professional liability insurance satisfactory to the board.

Licence to practise

4. (1) An applicant who meets the requirements of section 3 shall be entitled to receive a licence to practise optometry and to be registered in the Newfoundland Optometric Register.

(2) A licence to practise optometry shall be in the form provided by the board.

Suspension of licence

5. Where a person holds a licence to practise optometry but has not engaged in that practice for a period of 3 years, that licence shall be considered to be suspended until the qualifications of the holder have been reviewed by the board and the person has been approved by the board to resume his or her practice.

Temporary licences

6. (1) Notwithstanding sections 3 and 4, the board may issue a temporary licence to an applicant where in the opinion of the board the applicant holds qualifications similar to those set out in section 3.

(2) A temporary licence shall

(a) be valid for the period prescribed in it, but shall not exceed a total period of one year; and

(b) be extended only with the approval of the board, but shall not exceed a total period of one year.

Qualifying examinations

7. An applicant for registration and licensing as a practitioner shall be permitted to write qualifying examinations if

(a) he or she has filed with the registrar an application for registration as provided by the board; and

(b) paid to the registrar the non-refundable application fees and examination fees set by the board at least 60 days before the commencement of the examinations.

PART II
STANDARDS OF PRACTICE, PROFESSIONAL MISCONDUCT AND CONFLICT OF
INTEREST

Standards of practice

8. A practitioner shall exercise generally accepted standards of practice and procedures in the determination of the physical, optical, sensory and oculomotor state of the eye and adnexa, and the assessment and care of a patient's vision and shall

(a) keep clinical and financial records with respect to his or her patients which shall contain

(i) the patient's history,

(ii) the examination procedures used,

(iii) the clinical findings obtained,

(iv) the treatment prescribed and provided,

(v) the practitioner's fees and charges, and

(vi) any other information that the board may require;

(b) have in his or her office the usual and necessary instruments, equipment and physical facilities for the provision of the diagnostic and treatment services performed by a practitioner; and

Professional misconduct

9. For the purpose of the Act, professional misconduct includes

(a) failing to abide by the terms, conditions or limitations of a licence to practise optometry;

(b) failing to maintain the standards of practice of the profession;

(d) exceeding the lawful scope of the practice of optometry;

(e) using, in conjunction with the practice of optometry, drugs other than those prescribed in the Act or using drugs in connection with the practice of optometry for purposes other that those specified in the Act and the regulations;

(f) engaging in the practice of optometry while having a conflict of interest;

(g) using terms, titles or designations other than those authorized by the Act or regulations or using terms, titles or designations that are prohibited by the Act or regulations;

(h) treating or attempting to treat an eye problem which is beyond the practitioner's experience or competence;

(i) failing to refer a patient to a legally qualified medical practitioner when a practitioner recognizes a condition of the eye or adnexa that requires medical examination;

(j) permitting, counselling or assisting any person who is not licensed under the Act to engage in the practice of optometry except as provided for in the Act or the regulations;

(k) where a practitioner has acquired the practice of another practitioner, using in any way the name of that other practitioner with respect to the practitioners's own practice for more than 3 years;

(l) charging fees that, in the opinion of the board, are excessive in relation to the services performed;

(m) communicating information that is not accurate, verifiable or relevant in the choice of a practitioner or that

(i) is false, misleading or deceptive in inclusion or omission of any information,

(ii) is not readily understandable, dignified or in good taste,

(iii) uses testimonial, comparative or superlative statements,

(iv) endorses any product, appliance or instrument used in the practice of optometry,

(v) when communicating a practitioner's fees and charges to the public, patient or third party, fails to disclose the exact nature of the services or ophthalmic appliance provided for the fees and charges stated,

(vi) is likely to create unreasonable expectations of favourable results or appeal to the public's fears, or

(vii) is part of any communication, advertisement, promotion or offering by persons or corporate entities other than a practitioner of any product or service;

(n) signing or issuing a certificate, report or similar document in connection with the practice of optometry that contains a statement the practitioner knows or ought to know is false, misleading or otherwise improper;

(o) signing or issuing a certificate, report or similar document in connection with the practice of optometry that withholds statements or information the practitioner knows or ought to know should be disclosed to the person to whom the practitioner knows or ought to know the document shall be delivered or to whom its contents shall be made known;

(p) disclosing information concerning a patient to any person other than that patient without the consent of the patient unless required to do so by law;

(q) knowingly submitting a false or misleading account or false or misleading charges for the services rendered to a patient;

(r) falsifying a record in respect of the observation or treatment of a patient;

(s) failing without reasonable cause to carry out the terms of an agreement with a patient;

(t) failing without reasonable cause to continue to provide professional services to a patient until the services are no longer required or until the patient has had a reasonable opportunity to arrange for the services of another practitioner;

(u) refusing to allow an authorized representative of the board to enter at reasonable times the premises in which the practitioner is engaged in the practice of optometry for the purpose of inspecting the practitioner's professional records and equipment where the attempted inspection was at a reasonable time with reasonable notice;

(v) conviction for an offence that in the opinion of the board affects the fitness of a practitioner to engage in the practice of optometry;

(w) engaging in the practice of optometry while the practitioner's ability is impaired by alcohol or drugs;

(x) failing without reasonable cause to make available to a patient on request a written, signed and dated ophthalmic appliance prescription containing all necessary and relevant clinical and ophthalmic specifications;

(y) conducting an act relevant to the practice of optometry that, having regard to all circumstances, would reasonably be regarded by practitioners as disgraceful, dishonest, unprofessional or otherwise unbecoming of a practitioner;

(z) failing to perform all necessary tests to determine the suitability of a candidate to wear contact lenses;

(aa) failing to provide to a contact lens patient the necessary aftercare, or failing to make arrangements to have the necessary aftercare provided to the contact lens patient by another practitioner; or

(bb) failing to provide, within a reasonable period of time, to a patient or to another practitioner designated by a patient a copy or summary of a patient's file when that information is requested by a patient.

Professional misconduct

10. A conflict of interest may occur when a practitioner is or comes to be in a situation which

(a) results, by connection with the practitioner's practice, in a gain, financial or otherwise, other than that earned from the performance of professional services in the practitioner's practice;

(b) places the practitioner's professional integrity or rendering of services at risk of being controlled or influenced by other persons, business entities, corporations or factors other than the practitioner's professional judgement of what is best for the patient, in consideration of generally accepted standards of practice;

(c) impedes the patient's ability to make an informed decision regarding consent to treatment or the purchase of services or materials related to the practitioner's recommendations for care; or

(d) restricts or attempts to restrict the practitioner's control of patient or financial records.

PART III
COMPLAINTS

Complaints

11. (1) A person may make a complaint respecting the professional conduct of a practitioner to the registrar, and the complaint shall be dealt with in accordance with this Part.

(2) A complaint against a practitioner shall be in writing and shall be signed by the complainant and shall in the first instance be referred to the registrar.

(3) The registrar shall immediately upon the receipt of a complaint conduct a preliminary investigation of that complaint and may appoint a person to assist in that investigation.

(4) The registrar shall immediately send a notice in writing to the investigated person that a preliminary investigation is being conducted.

Powers of registrar on preliminary investigation

12. (1) While conducting a preliminary investigation the registrar may

(a) require the investigated person to produce prescriptions, samples, inventory and other reports, books, papers or other documents or records in the investigated person's possession or under his or her control;

(b) make copies of the documents or records that are produced;

(c) question and obtain further particulars from the complainant, the investigated person or other persons relating to the complaint; and

(d) enter and inspect a practitioner's office, or the other premises where that office is located, for the purpose of paragraphs (a), (b) and (c) at a reasonable time and with reasonable notice to the investigated person.

(2) The registrar conducting a preliminary investigation into the conduct of an investigated person shall report to the Complaints Review Committee on all matters regarding the professional conduct of that person in the course of the investigation.

(3) A person who fails to comply with a request made under this section commits an offence.

Complaint dismissal

13. (1) The registrar may, before the completion of a preliminary investigation, dismiss a complaint as being frivolous or vexatious.

(2) Where a complaint has been dismissed under subsection (1), the registrar shall notify the complainant in writing of the dismissal and the reasons for that dismissal.

(3) Where a complaint has been dismissed under subsection (1), the complainant may, in writing and within 14 days of receiving notice of that dismissal under subsection (2), appeal that dismissal to the Newfoundland Optometric Board and the board may order the registrar to complete the investigation.

Report of findings

14. Notwithstanding section 13, if a complaint is not dismissed by the registrar under that section, he or she shall, upon concluding the preliminary investigation or an investigation required under subsection 13(3), report his or her findings to the Complaints Review Committee.

Complaints Review Committee

15. (1) A Complaints Review Committee shall be appointed by the Newfoundland Optometric Board, and shall be comprised of not less than 3 persons including

(a) a member of the Newfoundland Association of Optometrists;

(b) a member of the Newfoundland Optometric Board; and

(2) The board shall appoint from the members of the Complaints Review Committee, a chairperson and vice-chairperson.

(3) The vice-chairperson shall act for and has the powers of the chairperson when the chairperson is unable to act.

(4) In the event of the death, resignation or removal of a member of the Complaints Review Committee, the board may appoint a replacement for that member who shall serve the remainder of the term of office of the member.

(5) The term of office of a member of the Complaints Review Committee shall be for a period of 3 years from the date of appointment and members may be reappointed for additional terms.

Persons retained

16. (1) The Complaints Review Committee may retain the services of counsel, consultants and experts that it considers necessary to assist and advise it with respect to a matter dealt with by it.

(2) Notwithstanding subsection (1), the solicitor for the Newfoundland Optometric Board shall not represent the Complaints Review Committee.

Participation barred

17. A member of the Newfoundland Optometric Board who is also a member of the Complaints Review Committee shall not participate in the decision of the board at a disciplinary inquiry.

Report required

18. Upon consideration of the report required under section 14, the Complaints Review Committee shall recommend to the Newfoundland Optometric Board whether or not a disciplinary inquiry is warranted.

PART IV
DISCIPLINARY PROCEDURE

Further inquiries

19. The board, after receiving the report of the Complaints Review Committee's investigation into a complaint, may order that committee to conduct further inquiries and report back in writing to the board within a specified time.

Inquiry

20. (1) Where the board conducts an inquiry under section 33 of the Act, there shall be served on the investigated person and on the complainant a notice of hearing, stating the date, time and place at which the board shall hold the hearing, and giving reasonable particulars of the conduct and complaint which has led to the hearing.

(2) The registrar shall, before the inquiry, give a practitioner whose conduct is being investigated the opportunity to examine written reports or other records in the possession of the registrar that are intended to be produced or to form part of the evidence at the inquiry.

(3) The notice required by subsection (1) shall be served either personally, or sent by registered mail directed to the last address known to the registrar of the complainant and the investigated person, and not less than 14 calendar days before the date established for an inquiry, it shall be served upon those persons or sent by registered mail to them.

(4) The notice shall include a statement that the board may proceed to hear the matter in the absence of either or both of the complainant or investigated person, should either fail to appear at the time and place set for the inquiry.

Failure to appear

21. Where a complainant or an investigated person is absent from an inquiry and

(a) the complainant and the investigated person were properly served with a notice of inquiry under section 20; and

(b) the board has not, in its discretion, received an acceptable explanation for the absence

the board may proceed with the inquiry.

Evidence

22. (1) The rules of evidence applicable in civil proceedings in the Trial Division are applicable at an inquiry and an affidavit or statutory declaration of a person is admissible in evidence subject to the requirements, if any, that the board may impose with respect to the presence of the deponent or declarant for the purpose of examination and cross-examination on the document so admitted.

(2) Oral evidence given at an inquiry shall be recorded and, if required, a written transcript of the evidence shall be prepared.

Public hearing

23. (1) An inquiry may be held in public upon the request of the investigated person or the complainant, at the discretion of the board.

(2) A request for a public hearing shall be submitted to the board at least 30 days before the day fixed for the inquiry.

Findings of the board

24. The findings of the board shall be based exclusively on the evidence adduced at the inquiry.

Return of records

25. The records placed into evidence at an inquiry shall, upon the request of the person who introduced them, be returned to that person by the board within a reasonable time after the matter in issue has been finally determined, including the expiry of all permitted appeal proceedings and time limits.

Board decision

26. (1) The board shall, following final consideration of the matter, and in any event, not later than 30 calendar days following the final date of the inquiry, serve the complainant and the investigated person with a written decision in the matter, with reasons for the decision.

(2) The service of a decision may be made in person or by sending the decision by registered mail to the last address known to the registrar of the complainant and the investigated person.

(3) The registrar may give notice of a decision of the board to other persons that the board considers appropriate.

Maximum penalty

27. The maximum amount of the monetary penalty that may be imposed under paragraph 33(1)(c) of the Act shall be $10,000.

Expenses of the investigation

28. (1) Where the investigated person is found to be guilty and is ordered to pay expenses related to the investigation and inquiry, the word "expenses" means the exact total reasonably spent by the board on the case in question.

(2) When the board as part of its decision orders that the investigated person pay expenses of the investigation and inquiry, it shall

(a) itemize in reasonable detail the expenses to be paid by the investigated person; and

(b) stipulate the time within which expenses are to be paid to the board.

Retention of licence by registrar

29. Where

(a) evidence becomes available that was not available at the time of an inquiry; or

(b) at the discretion of the board

the board may rehear a matter and shall have the same powers and authority and is subject to the same duties it had and was subject to in the original inquiry.

Retention of licence by registrar

30. Upon receipt by the registrar of a licence that is cancelled or suspended, the registrar shall affix to or note on the licence the fact of the cancellation or suspension and shall retain the licence,

(a) in the case of suspension, for the period of the suspension; or

(b) in the case of cancellation, permanently.

Jurisdiction continued

31. If a board member's term of office expires while a complaint is under consideration or within an appeal period that member shall continue to hold jurisdiction as a board member until the board has made a final decision on the matter notwithstanding that a successor member may have been appointed.

Record of proceeding

32. The board shall compile a record of a proceeding in which an inquiry has been held, which shall include:

(a) the complaint by which the proceeding was commenced;

(b) the notice of inquiry;

(d) the transcript, if any, of the oral evidence given at the inquiry; and

(e) the findings of the board and the reasons for those findings.

Cost recovery

33. The costs incurred by the board in the investigation of and inquiry into any complaint in respect of which the practitioner has been found guilty may be recovered from the practitioner.

PART V
BOARD PROCEDURE

Board meetings

34. (1) Meetings of the members of the Newfoundland Optometric Board shall be held at a time and place that the board chairperson shall determine but at least 2 meetings shall be held in a calendar year.

(2) Of the 2 meetings required to be held by the board under subsection (1), one meeting shall be the Annual General Meeting.

(3) The registrar shall, at the request of the board chairperson, provide no less than 2 weeks' written notice to all board members of the time and place of each meeting of the board.

(4) The board chairperson and the registrar shall prepare a proposed agenda for each meeting, a copy of which shall be delivered to board members with the written notice of the meeting.

(5) The proposed agenda referred to in subsection (4) may be reviewed and revised as necessary by the board members at the commencement of each meeting of the board.

(6) Meetings of the board shall be conducted, as nearly as possible, in conformity with Roberts Rules of Order.

(7) Every question submitted to a meeting of the board shall be decided by a majority of the votes of all board members present and in the case of an equality of votes, the chairperson shall have the deciding vote.

Reasonable expenses of board members

35. (1) Board members shall be reimbursed for reasonable expenses incurred by them while attending board meetings and business at a rate set by the board.

(2) Reasonable expenses incurred by board members shall be reimbursed under subsection (1) when submitted to the board on claim forms approved by the board.

(3) A claim for expenses under this section shall be submitted by a board member within 90 days of having incurred the expense.

Newfoundland Optometric Register

36. (1) The Newfoundland Optometric Register shall be in the form required by the board.

(2) A practitioner shall notify the registrar in writing of any changes in the information contained in the Newfoundland Optometric Register relating to that practitioner within three months from the time the change occurs.

(3) The registrar shall inform the Newfoundland Association of Optometrists of any material changes with respect to a practitioner he or she learns of under subsection (2).

Committees

37. (1) The board may appoint those committees it considers necessary to assist it in its operations.

(2) The individuals appointed under subsection (1) shall be reimbursed for expenses incurred on board business to the extent that board members are entitled to be reimbursed under section 35.

(3) The registrar shall be a member, by virtue of the position, of all committees appointed by the board.

PART VI
GENERAL

Powers of assistants

38. Persons employed as assistants and acting under the direct supervision of a practitioner may check the visual acuity of any person.

Fees

39. (1) Fees may be set by the board.

(2) The annual licence fee shall be payable before January 1 in the year for which the licence is issued.

(3) The registrar shall provide each practitioner with a notice of the fees payable for the following year and a copy of these regulations before December 1 in the year preceding the year for which the fee is due.

Evidence of training required

40. A licensee shall, upon the request of the board, provide evidence of training satisfactory to the board for the use of pharmaceutical agents permitted in the Act or the regulations before using those pharmaceutical agents.

PART VII
REPEAL

Repeal

41. The Optometric Board Conflict of Interest Regulations the Optometry Professional Misconduct Regulations and the Optometry Regulations, Consolidated Newfoundland Regulations 1126/96, 1127/96 and 1128/96, are repealed.