3090-3111
BUSINESS AND PROFESSIONS CODE
SECTION 3090-3111
3090. Except as otherwise provided by law, the board may take
action against all persons guilty of violating this chapter or any of
the regulations adopted by the board. The board shall enforce and
administer this article as to licenseholders, and the board shall
have all the powers granted in this chapter for these purposes,
including, but not limited to, investigating complaints from the
public, other licensees, health care facilities, other licensing
agencies, or any other source suggesting that an optometrist may be
guilty of violating this chapter or any of the regulations adopted by
the board.
3091. (a) The board may deny an optometrist license to any
applicant guilty of unprofessional conduct or of any cause that would
subject a licensee to revocation or suspension of his or her
license; or, the board in its sole discretion, may issue a
probationary license to an applicant subject to terms and conditions,
including, but not limited to, any of the following conditions of
probation:
(1) Practice limited to a supervised, structured environment in
which the licensee's activities shall be supervised by another
optometrist licensed by the board.
(2) Total or partial restrictions on drug prescribing privileges
for controlled substances.
(3) Continuing medical or psychiatric treatment.
(4) Ongoing participation in a specified rehabilitation program.
(5) Enrollment and successful completion of a clinical training
program.
(6) Abstention from the use of alcohol or drugs.
(7) Restrictions against engaging in certain types of optometry
practice.
(8) Compliance with all provisions of this chapter.
(9) Any other terms and conditions deemed appropriate by the
board.
(b) The board may modify or terminate the terms and conditions
imposed on the probationary license if the licensee petitions for
modification or termination of terms and conditions of probation. A
licensee shall not petition for modification or termination of terms
and conditions until one year has passed from the effective date of
the decision granting the probationary license.
3092. All proceedings against a licensee for any violation of this
chapter or any of the regulations adopted by the board, or against an
applicant for licensure for unprofessional conduct or cause, shall
be conducted in accordance with the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code) except as provided in this chapter,
and shall be prosecuted by the Attorney General's office.
3093. Before setting aside the revocation or suspension of any
certificate the board may require the applicant to pass the regular
examination given for applicants for certificates of registration.
3094. In addition to other proceedings provided for in this
chapter, whenever any person has engaged, or is about to engage, in
any acts or practices that 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
that conduct on application of the board, the Attorney General, the
district attorney of the county, or on application of 10 or more
persons holding licenses issued under this chapter.
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.
3095. In accordance with Section 125.9, the board may establish a
system for the issuance of citations, and the assessment of
administrative fines, as deemed appropriate by the board.
3096. (a) A licensee may be ordered to undergo a professional
competency examination if, after investigation and review by the
Board of Optometry, there is reasonable cause to believe that the
licensee is unable to practice optometry with reasonable skill and
safety to patients. Reasonable cause shall be demonstrated by one or
more of the following:
(1) A single incident of gross negligence.
(2) A pattern of inappropriate prescribing.
(3) An act of incompetence or negligence causing death or serious
bodily injury.
(4) A pattern of substandard care.
(b) The results of a competency examination shall be admissible as
direct evidence and may be considered relevant in any subsequent
disciplinary or interim proceeding against the licensee taking the
examination, and, assuming those results are determined to be
relevant, shall be considered together with other relevant evidence
in making a final determination.
3097. The sending of a solicitor from house to house or the
soliciting from house to house by the holder of an optometrist
license constitutes a cause to revoke or suspend his or her license.
3098. When the holder uses the title of "Doctor" or "Dr." as a
prefix to his name, without using the word "optometrist" as a suffix
to his name or in connection with it, or, without holding a diploma
from an accredited school of optometry, the letters "Opt. D." or
"O.D." as a suffix to his name, it constitutes a cause to revoke or
suspend his certificate of registration.
3099. No optometrist shall advertise or otherwise hold himself or
herself out to be a specialist in eye disease and the treatment
thereof.
3100. The holding out as having a special knowledge of optometry,
as defined in this chapter, by the holder of a license, constitutes a
cause to revoke or suspend his or her license.
3101. It is unlawful to advertise by displaying a sign or otherwise
or hold himself or herself out to be an optometrist without having
at the time of so doing a valid unrevoked license from the board.
3102. It is unlawful to advertise as being free or without cost the
furnishing of optometric services where these services are
contingent upon payment or other exchange of consideration for goods
or other services offered by the provider, unless that contingency is
fully disclosed in the same advertisement.
3103. It is unlawful to include in any advertisement relating to
the sale or disposition of goggles, sunglasses, colored glasses or
occupational eye-protective devices, any words or figures that
advertise or have a tendency to advertise the practice of optometry.
This section does not prohibit the advertising of the practice of
optometry by a registered optometrist in the manner permitted by law.
3104. The employing of what are known as "cappers" or "steerers" to
obtain business constitutes unprofessional conduct.
3105. Altering or modifying the medical record of any person, with
fraudulent intent, or creating any false medical record, with
fraudulent intent, constitutes unprofessional conduct. In addition to
any other disciplinary action, the State Board of Optometry may
impose a civil penalty of five hundred dollars ($500) for a violation
of this section.
3106. Knowingly making or signing any certificate or other document
directly or indirectly related to the practice of optometry that
falsely represents the existence or nonexistence of a state of facts
constitutes unprofessional conduct.
3107. It is unlawful to use or attempt to use any license issued by
the board that has been purchased, fraudulently issued,
counterfeited, or issued by mistake, as a valid license.
3108. When the holder is suffering from a contagious or infectious
disease, it constitutes a cause to suspend his or her license during
the period of continuance of that disease.
3109. Directly or indirectly accepting employment to practice
optometry from any person not having a valid, unrevoked license as an
optometrist or from any company or corporation constitutes
unprofessional conduct. Except as provided in this chapter, no
optometrist may, singly or jointly with others, be incorporated or
become incorporated when the purpose or a purpose of the corporation
is to practice optometry or to conduct the practice of optometry.
The terms "accepting employment to practice optometry" as used in
this section shall not be construed so as to prevent a licensed
optometrist from practicing optometry upon an individual patient.
Notwithstanding the provisions of this section or the provisions
of any other law, a licensed optometrist may be employed to practice
optometry by a physician and surgeon who holds a certificate under
this division and who practices in the specialty of ophthalmology or
by a health care service plan pursuant to the provisions of Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and
Safety Code.
3110. The board may take action against any licensee who is charged
with unprofessional conduct, and may deny an application for a
license if the applicant has committed unprofessional conduct. In
addition to other provisions of this article, unprofessional conduct
includes, but is not limited to, the following:
(a) Violating or attempting to violate, directly or indirectly
assisting in or abetting the violation of, or conspiring to violate
any provision of this chapter or any of the rules and regulations
adopted by the board pursuant to this chapter.
(b) Gross negligence.
(c) Repeated negligent acts. To be repeated, there must be two or
more negligent acts or omissions.
(d) Incompetence.
(e) The commission of fraud, misrepresentation, or any act
involving dishonesty or corruption, that is substantially related to
the qualifications, functions, or duties of an optometrist.
(f) Any action or conduct that would have warranted the denial of
a license.
(g) The use of advertising relating to optometry that violates
Section 651 or 17500.
(h) Denial of licensure, revocation, suspension, restriction, or
any other disciplinary action against a health care professional
license by another state or territory of the United States, by any
other governmental agency, or by another California health care
professional licensing board. A certified copy of the decision or
judgment shall be conclusive evidence of that action.
(i) Procuring his or her license by fraud, misrepresentation, or
mistake.
(j) Making or giving any false statement or information in
connection with the application for issuance of a license.
(k) Conviction of a felony or of any offense substantially related
to the qualifications, functions, and duties of an optometrist, in
which event the record of the conviction shall be conclusive evidence
thereof.
(l) Administering to himself or herself any controlled substance
or using any of the dangerous drugs specified in Section 4022, or
using alcoholic beverages to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a license or
holding a license under this chapter, or to any other person, or to
the public, or, to the extent that the use impairs the ability of the
person applying for or holding a license to conduct with safety to
the public the practice authorized by the license, or the conviction
of a misdemeanor or felony involving the use, consumption, or self
administration of any of the substances referred to in this
subdivision, or any combination thereof.
(m) Committing or soliciting an act punishable as a sexually
related crime, if that act or solicitation is substantially related
to the qualifications, functions, or duties of an optometrist.
(n) Repeated acts of excessive prescribing, furnishing or
administering of controlled substances or dangerous drugs specified
in Section 4022, or repeated acts of excessive treatment.
(o) Repeated acts of excessive use of diagnostic or therapeutic
procedures, or repeated acts of excessive use of diagnostic or
treatment facilities.
(p) The prescribing, furnishing, or administering of controlled
substances or drugs specified in Section 4022, or treatment without a
good faith prior examination of the patient and optometric reason.
(q) The failure to maintain adequate and accurate records relating
to the provision of services to his or her patients.
(r) Performing, or holding oneself out as being able to perform,
or offering to perform, any professional services beyond the scope of
the license authorized by this chapter.
(s) The practice of optometry without a valid, unrevoked,
unexpired license.
(t) The employing, directly or indirectly, of any suspended or
unlicensed optometrist to perform any work for which an optometry
license is required.
(u) Permitting another person to use the licensee's optometry
license for any purpose.
(v) Altering with fraudulent intent a license issued by the
board, or using a fraudulently altered license, permit certification
or any registration issued by the board.
(w) Except for good cause, the knowing failure to protect patients
by failing to follow infection control guidelines of the board,
thereby risking transmission of blood borne infectious diseases from
optometrist to patient, from patient to patient, or from patient to
optometrist. In administering this subdivision, the board shall
consider the standards, regulations, and guidelines of the State
Department of Health Services developed pursuant to Section 1250.11
of the Health and Safety Code and the standards, guidelines, and
regulations pursuant to the California Occupational Safety and Health
Act of 1973 (Part 1 (commencing with Section 6300) of Division 5 of
the Labor Code) for preventing the transmission of HIV, hepatitis B,
and other blood borne pathogens in health care settings. As
necessary, the board may consult with the Medical Board of
California, the Board of Podiatric Medicine, the Board of Registered
Nursing, and the Board of Vocational Nursing and Psychiatric
Technicians, to encourage appropriate consistency in the
implementation of this subdivision.
(x) Failure or refusal to comply with a request for the clinical
records of a patient, that is accompanied by that patient's written
authorization for release of records to the board, within 15 days of
receiving the request and authorization, unless the licensee is
unable to provide the documents within this time period for good
cause.
(y) Failure to refer a patient to an appropriate physician in
either of the following circumstances:
(1) Where an examination of the eyes indicates a substantial
likelihood of any pathology that requires the attention of that
physician.
(2) As required by subdivision (c) of Section 3041.
3111. It is unprofessional conduct and a violation of this chapter
for a person licensed under this chapter to violate, attempt to
violate, assist in the violation of, or conspire to violate the
Moscone-Knox Professional Corporation Act (Part 4 (commencing with
Section 13400) of Division 3 of Title 1 of the Corporations Code),
this article, or any regulation adopted pursuant to those provisions.