Loading
The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 

BOARD OF OPTOMETRY

 

DIVISION 60

PROCEDURES FOR HANDLING COMPLAINTS

852-060-0004

Processing of Complaints

The Board processes complaints in accordance with the requirements of ORS 676.160 to 676.180 and the provisions of ORS 683.278, 683.325, 683.335.

Stat. Auth.: ORS 676 & 683
Stats. Implemented: ORS 676.160 - ORS 676.180
Hist.: OPT 6-1998, f. 12-28-98, cert. ef. 1-1-99; OPT 2-2004, f. & cert. ef. 5-20-04

852-060-0025

Disciplinary Action

(1) When disciplining an optometric physician or any other person, the Oregon Board of Optometry may do any of the following:

(a) Deny an initial license;

(b) Suspend, refuse to renew or revoke a license;

(c) Impose probation on any licensee;

(d) Limit the practice of any licensee; and

(e) Take other disciplinary action as the Board in its discretion finds proper, including the assessment of the costs of the disciplinary proceedings as a civil penalty or assessment of a civil penalty not to exceed $10,000 for each violation, or both.

(2) The Board may discipline any optometric physician or person, where appropriate, for the following causes:

(a) Conviction of a felony or misdemeanor where such an offense bears a demonstrable relationship to the duties of an optometric physician. The record of conviction, or a copy thereof certified by the clerk of the court or by the judge in whose court the conviction is had, is conclusive evidence of such conviction;

(b) Practicing optometry without a license;

(c) Securing a license by practicing fraud or deceit upon the Board;

(d) Unprofessional conduct, or gross ignorance or inefficiency in the practice of optometry;

(e) Failing to comply with the requirements of continuing education;

(f) Obtaining any fee by fraud or misrepresentation;

(g) Employing directly or indirectly any suspended or unlicensed optometrist to perform any work covered by ORS 683.010 to 683.335;

(h) Advertising optometric services or treatment or advice in which untruthful, improbable, misleading or deceitful statements are made;

(i) Habitual, excessive or unlawful use of intoxicants, drugs or controlled substances;

(j) Permitting another person to use the optometrist’s license;

(k) Using advertisements that do not indicate that a licensed optometrist is practicing at the advertised location or locations or advertising optometric services without having a licensed optometrist at the location or locations;

(l) Advertising professional methods or professional superiority;

(m) Violating the federal Controlled Substances Act;

(n) Prescribing controlled substances without a legitimate optometric purpose, or without following accepted procedures for examination of patients or for record keeping;

(o) Failing to report to the Board any adverse action taken against the optometrist or person by another licensing jurisdiction, health regulatory board, peer review body, health care institution, professional optometric society or association, governmental agency, law enforcement agency or court for acts similar to conduct that would constitute grounds for disciplinary action as described in this section;

(p) Having been disciplined by any health regulatory board of another state based on acts similar to acts described in this section. A certified copy of the record of disciplinary action is considered conclusive evidence of the action;

(q) Any violation of the provisions of ORS 683.010 to 683.335; or

(r) Practicing optometry in a location not reported to the Board.

(3) The Board must report all disciplinary action taken by the Board to the National Practitioner Data Bank and the Healthcare Integrity and Protection Data Bank.

Stat. Auth.: ORS 683; ORS 182
Stats. Implemented: ORS 683.140, 683.180, 683.270 & 182.466
Hist.: OE 2, f. 12-5-57; OE 14, f. 2-20-73, ef. 3-1-73; OE 1-1979, f. & ef. 3-8-79; OE 2-1982, f. & ef. 3-18-82; OE 2-1984, f. & ef. 7-14-84; OP 1-1987, f. & ef. 4-30-87; OP 2-1992, f. & cert. ef. 10-21-92; OPT 1-2001, f. 6-18-01, cert. ef. 7-1-01; OPT 1-2003, f. 6-12-03, cert. ef. 7-1-03; Renumbered from 852-010-0025, OPT 4-2005, f. & cert. ef. 12-8-05; OPT 1-2013, f. & cert. ef. 1-3-13

852-060-0027

Definition of Unprofessional Conduct

Unprofessional conduct within the meaning of ORS 683.140(1)(c) includes, but is not limited to:

(1) Fraud, misrepresentation or dishonesty.

(2) Advertising optometric services, treatments, or advice in which untruthful, improbable, misleading or deceitful statements are made.

(3) Advertising professional methods or professional superiority, including using the term “board certified” without defining which board has provided the certification.

NOTE: As a licensing and regulatory agency, the Oregon Board of Optometry does not “board certify” optometric physicians.

(4) Aiding an unlicensed person in the practice of optometry.

(5) Failure to train and supervise any unlicensed person who performs any work covered in this chapter that is delegated by the licensee.

(6) Permitting another person to use the optometrist’s license.

(7) Prescribing, dispensing or administering controlled substances in Schedules III–V outside the scope of practice of optometry or in a manner that impairs the health and safety of an individual.

(8) Habitual, excessive or unlawful use of intoxicants, drugs or controlled substances.

(9) The use of threats or harassment or to delay or to obstruct any person in providing evidence in any investigation, disciplinary action, or other legal action instituted by the Board.

(10) The discharge of an employee based primarily on the employee’s attempt to comply with or aid in the compliance of the Board’s rules, or with the Board’s enforcement activities.

(11) The use of threats, harassment, or any other conduct that obstructs or delays a member of the Board, a member of the Board’s staff or a duly appointed agent of the Board in carrying out their functions under the Board’s rules.

(12) Willfully deceiving or attempting to deceive the Board, an employee of the Board, or an agent of the Board in any application or renewal, or in reference to any matter under investigation by the Board including the alteration or destruction of any records in order to obstruct or delay an investigation by the Board, or to alter or falsify any information in patient or business records to avoid potential disciplinary action.

(13) Failing to respond in writing to a Board request for information as required.

(14) Failing to appear before the Board at a time and place designated by the Board for such appearance.

(15) Violations of ORS 676.110(5) (use of titles), which states, in part, that any person practicing optometry who uses the title “doctor,” or any contraction thereof, “clinic,” “institute,” “specialist,” or any other assumed name or title in connection with the profession, in all advertisements, professional notices, or any written or printed matter must add the word “optometrist” or the words “doctor of optometry” or “optometric physician.”

(16) Conduct which could be construed as moral turpitude.

(17) Any conduct or practice contrary to recognized standards of ethics of the optometric profession, which includes:

(a) Sexual abuse: Includes conduct that constitutes a violation of any provision of ORS 163.305 through 163.479, Criminal Sexual Offenses, if proven by at least a preponderance of the evidence in any criminal, civil or administrative litigation, or admitted or stipulated by the professional;

(b) Sexual Violation: Includes professional-patient sex, whether initiated by the patient or not, and engaging in any conduct with a patient that is sexual, or may be reasonably interpreted as sexual, including, but not limited to: sexual intercourse; genital-to-genital contact; oral-to-genital contact; oral-to-anal contact; oral-to-oral contact except CPR; touching breasts, genitals, or any sexualized body part for any purpose other than appropriate examination or treatment or where the patient has refused or has withdrawn consent; encouraging the patient to masturbate in the presence of the professional or masturbation by the professional while the patient is present; and

(c) Sexual Impropriety: Includes any behavior, gestures, or expressions that are seductive or sexually demeaning to a patient of normal sensibilities; inappropriate procedures, including, but not limited to, disrobing or draping practices that reflect a lack of respect for the patient’s privacy; inappropriate comments about or to the patient, including, but not limited to, making sexual comments about a patient’s body or underclothing, making sexualized or sexually demeaning comments to a patient, inappropriate comments on the patient’s or professional’s sexual orientation, making comments about potential sexual performance during an examination or consultation; requesting the details of sexual history unless medically necessary; questioning or discussing sexual likes or dislikes; initiation by the professional of conversation regarding the sexual problems, preferences or fantasies of the professional or the patient; or kissing of a sexual nature.

(18) Failing to make full payment to the Board of all Board assessed fees, fines and penalties.

(19) Failing to give written notification to the Board of any disciplinary action or sanction related to the practice of optometry by any licensing agency of any state.

(20) Failing to give written notification to the Board of any felony or misdemeanor convictions.

(21) Failing to immediately give the prescription to the patient at the time the doctor would provide spectacles or contact lenses without additional examination.

(22) Failing to keep complete and accurate records for a patient.

(23) Failing to retain patient records in an accessible print or electronic format.

(24) Failing make appropriate transfer of the custody of patient records.

(25) Failing to provide the Board with requested patient records.

(26) Failing to comply with a Board order.

(27) Failure to report own or other licensee’s prohibited or unprofessional conduct, arrests or convictions as required by ORS 676.150, ORS 683.335, and ORS 683.340.

Stat. Auth.: ORS 683; ORS 182
Stats. Implemented: ORS 683.140, 683.270 & 182.466
Hist.: OP 1-1987, f. & ef. 4-30-87; OP 1-1991, f. & cert. ef. 4-12-91; OP 2-1992, f. & cert. ef. 10-21-92; OP 1-1993, f. & cert. ef. 2-10-93; OP 3-1993, f. & cert. ef. 10-27-93; OPT 2-2000, f. 4-28-00, cert. ef. 5-1-00; OPT 3-2000, f. 6-26-00, cert. ef. 7-1-00; OPT 2-2002, f. & cert. ef. 12-18-02; OPT 1-2005, f. & cert. ef. 2-23-05; Renumbered from 852-010-0027, OPT 4-2005, f. & cert. ef. 12-8-05; OPT 1-2013, f. & cert. ef. 1-3-13

852-060-0028

Definition of Gross Ignorance or Inefficiency

In determining gross ignorance or inefficiency within the meaning of ORS 683.140(1)(c) the Board may take into account relevant factors and practices, including but not limited to the standard of practice generally and currently followed and accepted by persons licensed to practice optometry in this state, the current teachings at accredited optometry schools, relevant technical reports published in recognized optometry journals, and the desirability of reasonable experimentation in the furtherance of the practice of optometry.

Stat. Auth.: ORS 683; ORS 182
Stats. Implemented: ORS 683.140, 683.270 & 182.466
Hist.: OP 1-1987, f. & ef. 4-30-87; Renumbered from 852-010-0028, OPT 4-2005, f. & cert. ef. 12-8-05

852-060-0060

Model Rules of Procedure

Pursuant to the provisions of ORS 183.341, the Oregon Board of Optometry adopts the Attorney General’s Model Rules of Procedure under the Administrative Procedures Act current edition; these rules of procedure are controlling except as otherwise required by statute or rule.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or Board of Optometry.]

Stat. Auth.: ORS 183, 683 & 182
Stats. Implemented: ORS 183.341(2) & 182.466
Hist.: OPT 2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13

852-060-0065

Requiring an Answer to Charges as Part of Notices to Parties in Contested Cases

In addition to the notice requirements under the Attorney General’s Model Rules of Procedure adopted by OAR 852-60-0060, the notice to parties in contested cases must include the statement that an answer to any assertions or charges of unprofessional conduct, sexual abuse, sexual violation or sexual impropriety will be required and will list the consequences of failure to answer. A statement of the consequences of failure to answer may be satisfied by enclosing a copy of OAR 852-060-0070 with the notice.

Stat. Auth.: ORS 183, 683 & 182
Stats. Implemented: ORS 183.413 & 182.466
Hist.: OPT 2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13

852-060-0070

Hearing Requests, Answers, and Consequences of Failure to Answer

(1) A hearing request and answer when required by OAR 852-060-0065 must be made in writing to the Board by the party or his or her representative. Any required answer must include the following:

(a) An admission or denial of each factual matter alleged in the notice that requires an answer; and

(b) A short and plain statement of each relevant affirmative defense the party may have.

(2) Except for good cause:

(a) Factual matters alleged in the notice that require an answer and which are not denied in the answer are presumed admitted;

(b) Failure to raise a particular defense in the answer will be considered a waiver of such defense;

(c) New matters alleged in the answer (affirmative defenses) are presumed to be denied by the Board; and

(d) Evidence may not be taken on any issue not raised in the notice and answer.

Stat. Auth.: ORS 683 & 182
Stats. Implemented: ORS 683.155 & 182.466
Hist.: OPT 2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13

852-060-0075

Discovery

An order requiring discovery will be responded to pursuant to OAR 137-003-0025 included in the Uniform and Model Rules of Procedure under the Administrative Procedures Act and ORS 676.175. In addition, ORS 676.175 provides that contested case hearings are closed to members of the public.

Stat. Auth.: ORS 683 & 182
Stats. Implemented: ORS 683.155 & 182.466
Hist.: OPT 2-2004, f. & cert. ef. 5-20-04; OPT 1-2006, f. & cert. ef. 3-8-06

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​