SB-0853, As Passed Senate, June 12, 2014

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 853

A bill to amend 1978 PA 368, entitled

"Public health code,"

(MCL 333.1101 to 333.25211) by adding part 55A.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

PART 55A

EYE CARE CONSUMER PROTECTION

Sec. 5551. (1) This part may be referred to as the "eye care

consumer protection law".

(2) As used in this part, the words and phrases defined in

sections 5553 to 5557 have the meanings ascribed to them in those

sections.

(3) In addition, article 1 contains general definitions and

principles of construction applicable to all articles in this code.

Sec. 5553. (1) "Contact lens" means a lens placed directly on

the surface of the eye, regardless of whether it is intended to

correct a visual defect. Contact lens includes, but is not limited

to, a cosmetic, therapeutic, or corrective lens.

(2) "Department" means the department of licensing and

regulatory affairs.

(3) "Diagnostic contact lens" means a contact lens used to

determine a proper contact lens fit.

(4) "Examination and evaluation", for the purpose of writing a

valid prescription, means an assessment of the ocular health and

visual status of a patient that does not consist solely of

objective refractive data or information generated by an automated

refracting device or other automated testing device.

Sec. 5555. (1) "Licensee" means any of the following:

(a) A physician who is licensed or otherwise authorized to

engage in the practice of medicine under part 170 and who

specializes in eye care.

(b) A physician who is licensed or otherwise authorized to

engage in the practice of osteopathic medicine and surgery under

part 175 and who specializes in eye care.

engage in the practice of optometry under part 174.

(2) "Spectacles" means an optical instrument or device worn or

used by an individual that has 1 or more lenses designed to correct

or enhance vision to address the visual needs of the individual

wearer and commonly known as glasses, including spectacles that may

be adjusted by the wearer to achieve different types or levels of

visual correction or enhancement.

Sec. 5557. "Valid prescription" means 1 of the following, as

applicable:

(a) For a contact lens, a written or electronic order by a

licensee who has conducted an examination and evaluation of a

patient and has determined a satisfactory fit for the contact lens

based on an analysis of the physiological compatibility of the lens

on the cornea and the physical fit and refractive functionality of

the lens on the patient's eye. To be a valid prescription under

this subdivision, it must include at least all of the following

information:

(i) A statement that the prescription is for a contact lens.

(ii) The contact lens type or brand name, or for a private

label contact lens, the name of the manufacturer, trade name of the

private label brand, and, if applicable, trade name of the

equivalent or similar brand.

(iii) All specifications necessary to order and fabricate the

contact lens, including power, material, base curve or appropriate

designation, and diameter, if applicable.

(iv) The quantity of contact lenses to be dispensed.

(v) The number of refills.

(vi) Specific wearing instructions and contact lens disposal

parameters, if any.

(vii) The patient's name.

(viii) The date of the examination and evaluation.

(ix) The date the prescription is originated.

(x) The prescribing licensee's name, address, and telephone

number.

(xi) The prescribing licensee's written or electronic

signature, or other form of authentication.

(xii) An expiration date of not less than 1 year from the date

of the examination and evaluation or a statement of the reasons why

a shorter time is appropriate based on the medical needs of the

patient.

(b) For spectacles, a written or electronic order by a

licensee who has examined and evaluated a patient. To be a valid

prescription under this subdivision, it must include at least all

of the following information:

(i) A statement that the prescription is for spectacles.

(ii) As applicable and as specified for each eye, the lens

power including the spherical power, cylindrical power including

axis, prism, and power of the multifocal addition.

(iii) Any special requirements, the omission of which would, in

the opinion of the prescribing licensee, adversely affect the

vision or ocular health of the patient. As used in this

subparagraph, "special requirements" includes, but is not limited

to, type of lens design, lens material, tint, or lens treatments.

(iv) The patient's name.

(v) The date of the examination and evaluation.

(vi) The date the prescription is originated.

(vii) The prescribing licensee's name, address, and telephone

number.

(viii) The prescribing licensee's written or electronic

signature, or other form of authentication.

(ix) An expiration date of not less than 1 year from the date

of the examination and evaluation or a statement of the reasons why

a shorter time is appropriate based on the medical needs of the

patient.

Sec. 5559. (1) Except as otherwise provided in subsection (2),

spectacles and contact lenses are medical devices and are subject

to the requirements of this part for the protection of consumers.

(2) This part does not apply to any of the following:

(a) A diagnostic contact lens that is used by a licensee

during an examination and evaluation.

(b) An optical instrument or device that is not intended to

correct or enhance vision.

designed, or sold specifically for a particular individual.

Sec. 5561. (1) A person shall not do any of the following:

(a) Employ objective or subjective physical means to determine

the accommodative or refractive condition or range of power of

vision or muscular equilibrium of the human eye unless that

activity is performed by a licensee or under the supervision of a

licensee.

(b) Prescribe spectacles or contact lenses based on a

determination described in subdivision (a) unless that activity is

performed by a licensee.

unless dispensed, given, or sold pursuant to a valid prescription.

(d) Use an automated refractor or other automated testing

device to generate objective refractive data unless that use is by

a licensee or under the supervision of a licensee.

(2) As used in this section, "supervision" means that term as

defined in section 16109.

Sec. 5563. (1) Except as otherwise provided in this part, the

administration and enforcement of this part is the responsibility

of the department.

(2) The department may promulgate rules under the

administrative procedures act of 1969 that it determines necessary

to implement, administer, and enforce this part.

Sec. 5565. (1) A person or governmental entity that believes

that a violation of this part or a rule promulgated under this part

has occurred or has been attempted may make an allegation of that

fact to the department in writing.

(2) If, upon reviewing an allegation under subsection (1), the

department determines there is a reasonable basis to believe the

existence of a violation or attempted violation of this part or a

rule promulgated under this part, the department shall investigate.

(3) The department may hold hearings, administer oaths, and

order testimony to be taken at a hearing or by deposition conducted

pursuant to the administrative procedures act of 1969.

(4) The department may proceed under section 5567 if it

determines that a violation of this part or a rule promulgated

under this part has occurred.

(5) This section does not require the department to wait until

harm to human health has occurred to initiate an investigation

under this section.

Sec. 5567. (1) After a determination as described in section

5565(4), the department may order a person to cease and desist from

a violation of this part or a rule promulgated under this part.

(2) A person ordered to cease and desist under this section is

entitled to a hearing before the department if a written request

for a hearing is filed within 30 days after the effective date of

the order.

(3) The department may assess costs related to the

investigation of a violation of this part or rules promulgated

under this part. The department may issue an order for costs

assessed under this subsection after a hearing held in compliance

with the administrative procedures act of 1969.

(4) The department may refer a case for further enforcement

action under section 5569 or 5571 against a person that fails to

comply with a cease and desist order that is not contested or that

is upheld following a hearing.

(5) The department is not required to issue a cease and desist

order before taking action under section 5569 or 5571.

Sec. 5569. (1) The department may file a civil action in a

court of competent jurisdiction seeking an injunction or other

appropriate relief to enforce this part or a rule promulgated under

this part.

(2) In an action under subsection (1), the court may impose on

a person that violates or attempts to violate this part or a rule

promulgated under this part a civil fine of not less than $5,000.00

for each violation or attempted violation. The court may also award

costs of an investigation and attorney fees from a person that

violates or attempts to violate this part or a rule promulgated

under this part.

Senate Bill No. 853 (H-1) as amended June 10, 2014

Sec. 5571. A person that violates this part or a rule

promulgated under this part or violates a cease and desist order

issued under this part is guilty of a misdemeanor punishable by

imprisonment for not more than 1 year or a fine of not less than

$5,000.00 or more than $25,000.00, or both. If successful in

obtaining a conviction, the agency prosecuting the case is entitled

to actual costs and attorney fees from the defendant.

[Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.]