| (a) Based upon the criteria in this section, and in
addition to the sanctions listed in subsection (e) of this section,
the guideline administrative penalty or fine amount for:
(1) felony conviction: $2,000 minimum penalty for each
offense (§351.501(a)(3) of the Act)
(2) misdemeanor conviction involving moral turpitude:
$2,000 minimum penalty for each offense (§351.501(a)(3) of the
Act)
(3) impaired ability to practice: $2,000 minimum penalty
for each offense (§351.501(a)(4) of the Act)
(4) violations of the act or rules involving controlled
substances: $2,000 minimum penalty for each offense (§§351.501(a)(4)
and (15), 351.358, 351.451, and 351.452 of the Act)
(5) fraud, deceit, dishonesty, or misrepresentation
in the practice of optometry or in applying for license; or deceiving,
defrauding, or harming the public: $2,000 minimum penalty for each
offense (§351.501(a)(4) and (11) of the Act)
(6) gross incompetence in the practice of optometry
or engaging in a pattern of practice or other behavior demonstrating
a wilful provision of substandard care: $2,000 minimum penalty for
each offense (§351.501(a)(12) and (13) of the Act)
(7) practicing or attempting to practice optometry
while the license is suspended or violating the terms of a Board Order:
$2,000 minimum penalty for each offense (§351.501(a)(8) and (17)
of the Act)
(8) having the right to practice optometry suspended
or revoked by a federal agency: $2,000 minimum penalty for each offense
(§351.501(a)(10) of the Act)
(9) the guideline administrative penalty or fine amount
for the following violations is a $300 minimum penalty for the first
offense and $600 minimum penalty for the second offense and subsequent:
(A) Failure to report address changes to the Board
as required by §351.351 and §351.501(16) of the Act.
(B) Failure to properly display name visible to the
public as required by §351.362 of the Act.
(C) Failure to display public interest information
as required by §351.203 of the Act, and §273.9 of this title.
(D) Failure to properly release contact lens prescription
as required by §353.156 of the Contact Lens Prescription Act,
(E) Advertising violations, including misleading advertising
as prohibited by §351.155 and §351.403 of the Act, and §279.9
of this title.
(F) Failure to use proper professional identification
as required by §104.003 of the Texas Occupations Code.
(G) Offering glasses or contact lenses as a prize or
inducement as prohibited by §351.404 of the Act and §273.3
of this title.
(H) Failure of the subject of a complaint to respond
within 14 days of receipt to a request letter from the Board regarding
the complaint as required by §277.1 of this title.
(10) the guideline administrative penalty or fine amount
for the following violations is a $1,500 minimum and $2,500 maximum
penalty:
(A) Directing or allowing optical employees or owners
to make appointments for a leasing licensee as prohibited by §351.408
and §351.459 of the Act.
(B) Directing or allowing optical employees or owners
to advertise for a leasing licensee or include the licensee's office
in the advertising as prohibited by §351.408 and §351.459
of the Act.
(C) Directing or allowing optical employees or owners
to set the practice hours for a leasing licensee as prohibited by §351.408
of the Act.
(D) Practicing in an office not properly separated
from a lessor optical as prohibited by §§351.363, 351.364,
351.408, and 351.459 of the Act, and §279.12 of this title.
(b) In accordance with §351.551 of the Act, administrative
penalties may be assessed for violations of the Act or rule or order
of the Board. Either the Executive Director or a subcommittee of the
Board, to include at least one public member of the Board, may assess
a penalty for each violation and present a report to the Board concerning
the facts on which the determination was based and the amount of penalty.
(c) In accordance with §351.507 of the Act, the
Investigation - Enforcement Committee shall use the guidelines in
this rule when determining the appropriate administrative penalty
or fine to recommend to the Board.
(d) The guidelines in this rule are intended to promote
consistent sanctions for similar violations, facilitate timely resolution
of cases, and encourage settlements. The guidelines in this rule apply
to a single violation where there are no aggravating or mitigating
factors. Multiple violations and aggravating or mitigating factors
as listed in subsection (f) of this section may justify a modification
of the guideline amount. The guideline amount may be reduced when
a respondent acknowledges a violation and agrees to comply with terms
and conditions of an agreed order.
(e) The guidelines in this rule apply to administrative
penalties and fines. The Board may also, alone or in conjunction with
imposing an administrative penalty or fine, refuse to issue a license
to an applicant, revoke or suspend a license, place on probation a
person whose license has been suspended, impose a stipulation, limitation,
or condition relating to continued practice, including conditioning
continued practice on counseling or additional education, or reprimand
a licensee.
(f) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including nature,
circumstances, extent, and gravity of any prohibited act, and hazard
or potential hazard created to the health, safety, or economic welfare
of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(g) Penalties imposed by the Board pursuant to subsections
(a) - (f) of this section may be imposed for each violation subject
to the following limitations:
(1) imposition of an administrative penalty not to
exceed $2,500 for each violation;
(2) each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty.
(h) Administrative penalties or fines for violations
not specifically mentioned in this rule shall be based on an amount
that corresponds to the scheme of the guidelines of this rule.
(i) The provisions of this rule shall not be construed
so as to prohibit other appropriate disciplinary action under the
Act, civil or criminal action and remedy and enforcement under other
laws.
|
| Source Note: The provisions of this §277.6 adopted to be effective January 7, 1994, 18 TexReg 9934; amended to be effective April 7, 2003, 28 TexReg 2924; amended to be effective March 30, 2005, 30 TexReg 1772; amended to be effective March 23, 2006, 31 TexReg 2159; amended to be effective March 3, 2011, 36 TexReg 1279; amended to be effective February 12, 2023, 48 TexRg 680 |
