Bill Text: AZ HB2378 | 2017 | Fifty-third Legislature 1st Regular | Introduced
Bill Title: Dispensing opticians; repeal of regulation
Spectrum: Moderate Partisan Bill (Republican 17-2)
Status: (Failed) 2017-02-07 - House COM Committee action: Held, voting: (0-0-0-0-0-0) [HB2378 Detail]
REFERENCE TITLE: dispensing opticians; repeal of regulation
State of Arizona
House of Representatives
First Regular Session
Representatives Mosley: Allen J, Barton, Bowers, Clodfelter, Coleman, Cook, Descheenie, Espinoza, Grantham, John, Lawrence, Livingston, Payne, Shope, Thorpe, Weninger, Senators Borrelli, Fann, Petersen
Amending sections 20-3151, 32-1603 and 32‑1671, Arizona Revised Statutes; repealing section 32‑1672, Arizona Revised Statutes; amending title 32, chapter 15.1, article 1, Arizona Revised Statutes, by adding a new section 32‑1672; repealing sections 32‑1673 and 32‑1674, Arizona Revised Statutes; repealing title 32, chapter 15.1, articles 2 and 3, Arizona Revised Statutes; amending sections 32-1721, 32-3101, 32-3201, 32-3218, 36-601.01 and 41-1092, Arizona Revised Statutes; repealing section 41-3022.06, Arizona Revised Statutes; relating to dispensing opticians.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 20-3151, Arizona Revised Statutes, is amended to read:
For the purposes of In this section chapter, unless the context otherwise requires:
1. "Enrollee" means an individual who is enrolled in a health care plan provided by a health care insurer.
2. "Health care insurer" means a disability insurer, group disability insurer, blanket disability insurer, health care services organization, hospital service corporation, medical service corporation or hospital and medical service corporation.
3. "Health care plan" means a policy, contract or evidence of coverage issued to an enrollee. Health care plan does not include limited benefit coverage as defined in section 20‑1137.
4. "Health care professional" means a professional who is regulated pursuant to title 32, chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 25, 28, 29, 33, 34, 35, 39 or 41, title 36, chapter 6, article 7 or title 36, chapter 17.
Sec. 2. Section 32-1603, Arizona Revised Statutes, is amended to read:
32-1603. Qualifications of board members
A. Each registered nurse member of the board shall:
1. Be a resident of the state.
2. Be a graduate of an approved registered nursing program.
3. Be licensed as a registered nurse in this state.
4. Have had at least five years' experience in nursing following graduation, including executive, supervisory or teaching experience in nursing education or nursing service.
5. Have been actively engaged in the practice of nursing or nursing activities for at least three years preceding the appointment.
B. Each licensed practical nurse member of the board shall:
1. Be a resident of this state.
2. Be a graduate of an approved practical nursing program.
3. Be licensed as a licensed practical nurse in this state.
4. Have had at least five years' experience in practical nursing following graduation.
5. Have been actively engaged in the practice of nursing for at least three years preceding the appointment.
C. Each public member of the board shall be a person who:
1. Is not licensed pursuant to chapter 7, 8, 11, 13, 14, 15.1, 16, 17, 18, 19, 19.1, 21, 25 or 29 of this title or this chapter as an individual health care provider.
2. Is not an employee of any health care institution licensed pursuant to title 36, chapter 4 or any authorized insurer providing disability insurance coverage in this state.
3. Does not have a financial interest as a provider in the delivery of health care services.
D. Each licensed nursing assistant or certified nursing assistant member of the board shall either:
1. Be a licensed nursing assistant or a certified nursing assistant pursuant to this chapter and currently practice or have practiced within three years before initial appointment to the board.
2. Within one year before appointment to the board, have been employed as an instructor or coordinator in an approved licensed nursing assistant or certified nursing assistant training program.
E. For at least three years preceding appointment to the board, each registered nurse practitioner or clinical nurse specialist member shall be certified pursuant to this chapter and actively practicing as a registered nurse practitioner, actively engaged in a clinical nurse specialist practice or teaching.
F. Each member of the board shall take and subscribe to the oath prescribed by law for state officers, which shall be filed with the secretary of state.
Sec. 3. Heading change
The article heading of title 32, chapter 15.1, article 1, Arizona Revised Statutes, is changed from "ADMINISTRATION" to "GENERAL PROVISIONS".
Sec. 4. Section 32-1671, Arizona Revised Statutes, is amended to read:
In this chapter, unless the context otherwise requires:
1. "Board" means the state board of dispensing opticians.
2. "Direct supervision" means the provision of direction and control through inspection and evaluation of work by consultation or instruction as needed, provided that at least one licensed dispensing optician works at each optical establishment on a full‑time basis.
3. 1. "Dispensing optician" means any person, except as provided in section 32‑1691, who dispenses lenses, contact lenses, frames, artificial eyes, optical devices, or appurtenances thereto to or parts thereof of these items to the intended wearer on written prescription from a duly licensed physician or optometrist, and who in accordance with such the prescription interprets, measures, adapts, fits or adjusts the same these items for the aid or correction of visual or ocular anomalies of the human eye or who duplicates, replaces, reproduces or repeats the same these items without prescription when there is no change in refractive value, provided that contact lenses shall never may not be dispensed without a written contact lense lens prescription being on file in any optical establishment, office of an optometrist or office of a physician or a verbal confirmation of that written prescription. The dispensing optician shall advise the intended wearer at the time that contact lenses are delivered to return to the prescribing physician or optometrist for evaluation and follow‑up care.
4. 2. "Optical establishment" means a physical location in which lenses, contact lenses, frames, artificial eyes, optical devices, appurtenances thereto to or parts thereof of these items are dispensed to the intended wearer on written prescription from a physician licensed pursuant to chapter 13 or 17 of this title or an optometrist licensed pursuant to chapter 16 of this title.
5. 3. "Person" means a natural person.
Sec. 5. Repeal
Section 32-1672, Arizona Revised Statutes, is repealed.
Sec. 6. Title 32, chapter 15.1, article 1, Arizona Revised Statutes, is amended by adding a new section 32-1672, to read:
32-1672. Nonregulation by state; notice to consumers
Dispensing opticians and optical establishments are not required to be licensed. Persons who provide these services shall disclose to consumers that the services are not regulated by this state by posting, in a conspicuous location in the reception area of the business entity, a sign that contains lettering at least one‑inch high and that states: "Optical services offered by (dispensing optician's or optical establishment's name) are not regulated by this state."
Sec. 7. Repeal
1. Section 32-1673 and 32-1674, Arizona Revised Statutes, are repealed.
2. Title 32, chapter 15.1, articles 2 and 3, Arizona Revised Statutes, are repealed.
Sec. 8. Section 32-1721, Arizona Revised Statutes, is amended to read:
32-1721. Persons and acts not affected by this chapter
This chapter does not apply to:
1. Physicians and surgeons duly licensed to practice medicine and surgery in this state, if they are practicing lawfully.
2. Dispensing opticians duly licensed to practice, if they are practicing lawfully in accordance with the provisions of section 32‑1671.
3. 2. The sale of complete ready‑to‑wear eyeglasses as merchandise from a permanently established place of business.
4. 3. A licensed or unlicensed individual performing duties delegated under the authority of a licensee.
Sec. 9. Section 32-3101, Arizona Revised Statutes, is amended to read:
In this chapter, unless the context otherwise requires:
1. "Applicant group" means any health professional group or organization, any individual or any other interested party that proposes that any health professional group not presently regulated be regulated or that proposes to increase the scope of practice of a health profession.
2. "Certification" means a voluntary process by which a regulatory entity grants recognition to an individual who has met certain prerequisite qualifications specified by that regulatory entity and who may assume or use the word "certified" in a title or designation to perform prescribed health professional tasks.
3. "Grandfather clause" means a provision applicable to practitioners actively engaged in the regulated health profession before the effective date of a law that exempts the practitioners from meeting the prerequisite qualifications set forth in the law to perform prescribed occupational tasks.
4. "Health professions" means professions regulated pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39 or 41 of this title, title 36, chapter 6, article 7 or title 36, chapter 17.
5. "Increase the scope of practice" means to engage in conduct beyond the authority granted to a health profession by law.
6. "Inspection" means the periodic examination of practitioners by a state agency in order to ascertain whether the practitioners' occupation is being carried out in a fashion consistent with the public health, safety and welfare.
7. "Legislative committees of reference" means joint subcommittees composed of the members of the appropriate standing committees of the house of representatives and senate appointed pursuant to section 41‑2954.
8. "Licensure" or "license" means an individual, nontransferable authorization to carry on a health activity that would otherwise be unlawful in this state in the absence of the permission, and that is based on qualifications that include graduation from an accredited or approved program and acceptable performance on a qualifying examination or a series of examinations.
9. "Practitioner" means an individual who has achieved knowledge and skill by practice and who is actively engaged in a specified health profession.
10. "Public member" means an individual who is not and never has been a member or spouse of a member of the health profession being regulated and who does not have and never has had a material financial interest in either the rendering of the health professional service being regulated or an activity directly related to the profession being regulated.
11. "Registration" means the formal notification that, before rendering services, a practitioner shall submit to a state agency setting forth the name and address of the practitioner, the location, nature and operation of the health activity to be practiced and, if required by a regulatory entity, a description of the service to be provided.
12. "Regulatory entity" means any board, commission, agency or department of this state that regulates one or more health professions in this state.
13. "State agency" means any department, board, commission or agency of this state.
Sec. 10. Section 32-3201, Arizona Revised Statutes, is amended to read:
In this chapter, unless the context otherwise requires:
1. "Health profession regulatory board" means any board that regulates one or more health professionals in this state.
2. "Health professional" means a person who is certified or licensed pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41 or 42 of this title, title 36, chapter 4, article 6, title 36, chapter 6, article 7 or title 36, chapter 17.
3. "Medical record records" has the same meaning prescribed in section 12‑2291 but does not include prescription orders.
Sec. 11. Section 32-3218, Arizona Revised Statutes, is amended to read:
32-3218. Health profession regulatory boards; members; training; definitions
A. Beginning January 1, 2015, Each member of a health profession regulatory board shall complete a twelve-hour training within one year after the member's initial appointment to the board. Any member of a health profession regulatory board whose initial appointment was before January 1, 2015 has until January 1, 2016 to complete the training required by this subsection. The training must include the subjects of governance and administrative management, disciplinary procedures, conduct of quasi‑judicial proceedings, administrative procedure and rule adoption and licensure as they apply to the health profession regulatory board. Any training completed by a current board member on and after January 1, 2014 on the topics specified in this subsection may count toward the requirements of this subsection.
B. The training of board members required by this section may be provided by the staff of any health profession regulatory board, the office of the attorney general, the department of administration, the auditor general or an outside educational institution or any other provider that is approved by the health profession regulatory board on which the member is serving.
C. Any board action taken by a health profession regulatory board is not subject to challenge or invalidation because a board member has not completed the training required by this section.
D. For the purposes of this section:
1. "Health profession regulatory board" means any board that regulates one or more health professional professionals in this state.
2. "Health professional" means a person who is certified or licensed pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 34, 35, 39, 41 or 42 of this title.
Sec. 12. Subject to the requirements of article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, is amended to read:
36-601.01. Smoke-free Arizona act
A. Definitions. The following words and phrases, whenever used in this section, shall be construed as defined in this section:
1. "Employee" means any person who performs any service on a full‑time, part-time or contracted basis whether or not the person is denominated an employee, independent contractor or otherwise and whether or not the person is compensated or is a volunteer.
2. "Employer" means a person, business, partnership, association, the state of Arizona and its political subdivisions, corporations, including a municipal corporations, trust, or non-profit entity that employs the services of one or more individual persons.
3. "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by permanent or temporary walls or windows (exclusive of doorways), which extend from the floor to the ceiling. Enclosed area includes a reasonable distance from any entrances, windows and ventilation systems so that persons entering or leaving the building or facility shall not be subjected to breathing tobacco smoke and so that tobacco smoke does not enter the building or facility through entrances, windows, ventilation systems or any other means.
4. "Health care facility" means any enclosed area utilized by any health care institution licensed according to title 36 chapter 4, chapter 6 article 7, or chapter 17, or any health care professional licensed according to title 32 chapters 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41, or 42.
5. "Person" means an individual, partnership, corporation, limited liability company, entity, association, governmental subdivision or unit of a governmental subdivision, or a public or private organization of any character.
6. "Physically separated" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageway) and independently ventilated from smoke-free areas, so that air within permitted smoking areas does not drift or get vented into smoke‑free areas.
7. "Places of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including office buildings, work areas, auditoriums, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, stairs, elevators, health care facilities, private offices and vehicles owned and operated by the employer during working hours when the vehicle is occupied by more than one person. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.
8. "Veteran and fraternal clubs" means a club as defined in A.R.S. 4‑101(7)(a)(b) or (c).
9. "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including airports, banks, bars, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.
10. "Retail tobacco store" means a retail store that derives the majority of its sales from tobacco products and accessories.
11. "Smoking" means inhaling, exhaling, burning, or carrying or possessing any lighted tobacco product, including cigars, cigarettes, pipe tobacco and any other lighted tobacco product.
12. "Sports facilities" means enclosed areas of sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, billiard halls, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sporting events.
B. Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following:
1. Private residences, except when used as a licensed child care, adult day care, or health care facility.
2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than fifty percent of rooms rented to guests in a hotel or motel are so designated.
3. Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.
4. Veterans and fraternal clubs when they are not open to the general public.
5. Smoking when associated with a religious ceremony practiced pursuant to the American Indian religious freedom act of 1978.
6. Outdoor patios so long as tobacco smoke does not enter areas where smoking is prohibited through entrances, windows, ventilation systems, or other means.
7. A theatrical performance upon a stage or in the course of a film or television production if the smoking is part of the performance or production.
C. The prohibition on smoking in places of employment shall be communicated to all existing employees by the effective date of this section and to all prospective employees upon their application for employment.
D. Notwithstanding any other provision of this section, an owner, operator, manager, or other person or entity in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place.
E. Posting of signs and ashtray removal.
1. "No smoking" signs or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted by the owner, operator, manager, or other person in control of that place identifying where smoking is prohibited by this section and where complaints regarding violations may be registered.
2. Every public place and place of employment where smoking is prohibited by this section shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
3. All ashtrays shall be removed from any area where smoking is prohibited by this section by the owner, operator, manager, or other person having control of the area.
F. No employer may discharge or retaliate against an employee because that employee exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section.
G. The law shall be implemented and enforced by the department of health services as follows:
1. The department shall design and implement a program, including the establishment of an internet website, to educate the public regarding the provisions of this law.
2. The department shall inform persons who own, manage, operate or otherwise control a public place or place of employment of the requirements of this law and how to comply with its provisions including making information available and providing a toll-free telephone number and e-mail address to be used exclusively for this purpose.
3. Any member of the public may report a violation of this law to the department. The department shall accept oral and written reports of violation and establish an e-mail address(es) and toll‑free telephone number(s) to be used exclusively for the purpose of reporting violations. A person shall not be required to disclose the person's identity when reporting a violation.
4. If the department has reason to believe a violation of this law exists, the department may enter upon and into any public place or place of employment for purposes of determining compliance with this law. However, the department may inspect public places where food or alcohol is served at any time to determine compliance with this law.
5. If the department determines that a violation of this law exists at a public place or place of employment, the department shall issue a notice of violation to the person who owns, manages, operates or otherwise controls the public place or place of employment. The notice shall include the nature of each violation, date and time each violation occurred, and department contact person.
6. The department shall impose a civil penalty on the person in an amount of not less than $100, but not more than $500 for each violation. In considering whether to impose a fine and the amount of the fine, the department may consider whether the person has been cited previously and what efforts the person has taken to prevent or cure the violation including reporting the violation or taking action under subsection J. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. A person may appeal the assessment of a civil penalty by requesting a hearing. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department.
7. If a civil penalty imposed by this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.
8. The department may apply for injunctive relief to enforce these provisions in the superior court in the county in which the violation occurred. The court may impose appropriate injunctive relief and impose a penalty of not less than $100 but not more than $500 for each violation. Each day that a violation occurs constitutes a separate violation. If the superior court finds the violations are willful or evidence a pattern of noncompliance, the court may impose a fine up to $5000 per violation.
9. The department may contract with a third party to determine compliance with this law.
10. The department may delegate to a state agency or political subdivision of this state any functions, powers or duties under this law.
11. The director of the department may promulgate rules for the implementation and enforcement of this law. The department is exempt from the rulemaking procedures in A.R.S. § title 41, chapter 6 except the department shall publish draft rules and thereafter take public input including hold at least two public hearings prior to implementing the rules. This exemption expires May 1, 2007.
H. Beginning on June 1, 2008 and every other June 1 thereafter, the director of the Arizona department of health services shall issue a report analyzing its activities to enforce this law, including the activities of all of the state agencies or political subdivisions to whom the department has delegated responsibility under this law.
I. An owner, manager, operator or employee of place regulated by this law shall inform any person who is smoking in violation of this law that smoking is illegal and request that the illegal smoking stop immediately.
J. This law does not create any new private right of action nor does it extinguish any existing common law causes of action.
K. A person who smokes where smoking is prohibited is guilty of a petty offense with a fine of not less than fifty dollars and not more than three hundred dollars.
L. Smoke‑free Arizona fund
1. The smoke-free Arizona fund is established consisting of all revenues deposited in the fund pursuant to §42-3251.02 and interest earned on those monies. The Arizona department of health services shall administer the fund. On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by §35-313 and monies earned from investment shall be credited to the fund.
2. All money in the smoke-free Arizona fund shall be used to enforce the provisions of this section provided however that if there is money remaining after the department has met its enforcement obligations, that remaining money shall be deposited in the tobacco products tax fund and used for education programs to reduce and eliminate tobacco use and for no other purpose.
3. Monies in this fund are continuously appropriated, are not subject to further approval, do not revert to the general fund and are exempt from the provisions of §36-190 section 35-190 relating to the lapsing of appropriations.
M. This section does not prevent a political subdivision of the state from adopting ordinances or regulations that are more restrictive than this section nor does this section repeal any existing ordinance or regulation that is more restrictive than this section.
N. Tribal sovereignty - this section has no application on Indian reservations as defined in ARS 42-3301(2).
Sec. 13. Section 41-1092, Arizona Revised Statutes, is amended to read:
In this article, unless the context otherwise requires:
1. "Administrative law judge" means an individual or an agency head, board or commission that sits as an administrative law judge, that conducts administrative hearings in a contested case or an appealable agency action and that makes decisions regarding the contested case or appealable agency action.
2. "Administrative law judge decision" means the findings of fact, conclusions of law and recommendations or decisions issued by an administrative law judge.
3. "Appealable agency action" means an action that determines the legal rights, duties or privileges of a party and that is not a contested case. Appealable agency actions do not include interim orders by self‑supporting regulatory boards, rules, orders, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it or clarifications of interpretation, nor does it mean or include rules concerning the internal management of the agency that do not affect private rights or interests. For the purposes of this paragraph, administrative hearing does not include a public hearing held for the purpose of receiving public comment on a proposed agency action.
4. "Director" means the director of the office of administrative hearings.
5. "Final administrative decision" means a decision by an agency that is subject to judicial review pursuant to title 12, chapter 7, article 6.
6. "Office" means the office of administrative hearings.
7. "Self‑supporting regulatory board" means any one of the following:
(a) The Arizona state board of accountancy.
(b) The state board of appraisal.
(c) The board of barbers.
(d) The board of behavioral health examiners.
(e) The Arizona state boxing and mixed martial arts commission.
(f) The state board of chiropractic examiners.
(g) The board of cosmetology.
(h) The state board of dental examiners.
(i) The state board of funeral directors and embalmers.
(j) The Arizona game and fish commission.
(k) The board of homeopathic and integrated medicine examiners.
(l) The Arizona medical board.
(m) The naturopathic physicians medical board.
(n) The state board of nursing.
(o) The board of examiners of nursing care institution administrators and adult care home managers.
(p) The board of occupational therapy examiners.
(q) The state board of dispensing opticians.
(r) (q) The state board of optometry.
(s) (r) The Arizona board of osteopathic examiners in medicine and surgery.
(t) (s) The Arizona peace officer standards and training board.
(u) (t) The Arizona state board of pharmacy.
(v) (u) The board of physical therapy.
(w) (v) The state board of podiatry examiners.
(x) (w) The state board for private postsecondary education.
(y) (x) The state board of psychologist examiners.
(z) (y) The board of respiratory care examiners.
(aa) (z) The state board of technical registration.
(bb) (aa) The Arizona state veterinary medical examining board.
(cc) (bb) The acupuncture board of examiners.
(dd) (cc) The Arizona regulatory board of physician assistants.
(ee) (dd) The board of athletic training.
(ff) (ee) The board of massage therapy.
Sec. 14. Repeal
Section 41-3022.06, Arizona Revised Statutes, is repealed.
Sec. 15. Requirements for enactment; three-fourths vote
Pursuant to article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, as amended by this act, is effective only on the affirmative vote of at least three-fourths of the members of each house of the legislature.