CHAPTER
Opt 100
ORGANIZATION, DEFINITIONS AND PUBLIC INFORMATION
Statutory
Authority: RSA 327:31
REVISION
NOTE:
Document number #5839, effective
6-17-94, made extensive changes to the wording, format, structure, and
numbering of rules in Chapters Opt 100-600. Document #5839 supersedes all prior filings
for the sections in Chapters Opt 100-600. The prior filings affecting rules in former
Chapters Opt 100-600 include the following documents:
#1711,
eff 1-25-81 |
#4151,
eff 10-29-86 |
#2290(E),
eff 12-30-82 |
#4639,
eff 6-27-89 |
#2291,
eff 1-19-83 |
#5583,
eff 6-12-93 |
#2770,
eff 7-6-84 |
#5667,
eff 7-15-93 |
#3108,
eff 8-28-85 |
|
CHAPTER
Opt 100 ORGANIZATION,
DEFINITIONS AND PUBLIC INFORMATION
PART
Opt 101
PURPOSE AND SCOPE
Opt
101.01 Purpose and Scope. The rules of this title implement the
following authority and responsibilities of the Board of Optometry:
(a)
Examination and licensing of optometrists;
(b)
Oversight and discipline of licensees;
(c)
Development of ethical and other professional standards to be followed
by licensees; and
(d)
Development of continuing professional education requirements and other
prerequisites for the renewal or reinstatement of licenses.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
PART
Opt 102
DEFINITIONS
Opt 102.01 Terms
Used. As used in these rules, the
following terms shall have the meanings indicated:
(a)
“Administrative assistant” means the board's staff director, a person
with delegated authority from the board.
(b)
“Board” means the
(c)
“Licensee” means a person holding a license, certificate or registration
issued by the board pursuant to any grant of statutory authority.
(d)
“Out of state contact lens dispenser” means any non-pharmacy business
organization physically located outside of
(e)
“Prescription” means the written specifications for a spectacle lens or
contact lens, necessary for the manufacture of such lens.
(f)
“Pharmaceutical Agent” means “pharmaceutical agent” as defined in RSA
327:1 III.
(g)
“Therapeutic Pharmaceutical Agents” (“TPA”) means such agents used in
the diagnosis and treatment of illnesses of the eyes.
(h)
“TPA-certified” means that the licensee has obtained the necessary
training and qualifications to administer Therapeutic Pharmaceutical Agents in
the practice of optometry.
(i) “TPA/G-certified” means that the licensee has
obtained the necessary training and qualifications to administer therapeutic
pharmaceutical agents in the practice of optometry, including the treatment of
glaucoma.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; amd by #6098, eff 10-1-95, all but paragraph (d) EXPIRED: 6-17-00;
amd by #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01; amd by #7854, eff 3-12-03
PART
Opt 103 AGENCY
ORGANIZATION
Opt
103.01 Composition of the Board.
(a)
The board shall consist of 5 members who meet the eligibility
requirements of RSA 327:2.
(b)
In January of each year, the board shall elect one member to serve as
president and one member to serve as secretary for the coming year.
(c)
The president and secretary shall serve no more than 2 consecutive one
year terms.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7325, eff 7-28-00
New. #7607,
eff 12-5-01
Opt
103.02 Staff. The board shall designate an administrative
assistant and such other staff members as are necessary to perform the
record-keeping and other statutory functions of the board and to oversee the
board's day-to-day operations.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
Opt
103.03 Office Hours, Office Location,
Mailing Address, Telephone, Fax and TTY/TDD.
(a)
The board's offices are located at:
(b)
The offices are open to the public Monday through Friday, excluding
state legal holidays, from 8:00 a.m. to 4:00 p.m.
(c)
Correspondence shall be addressed to the board at the location stated in
Opt 103.03(a).
(d)
The board's telephone number shall be (603) 271-2428.
(e)
The board’s fax number shall be (603) 271-6702.
(f)
The board’s TTY/TTD number shall be 1-800-735-2964.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
PART Opt 104 PUBLIC
INFORMATION
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
PART
Opt 105
MEETINGS, DELIBERATIONS AND DECISIONS
Opt
105.01 Meetings. The board shall meet 6 times a year and at
such additional times as shall be called for by the president or by vote of the
board.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7325,
eff 7-28-00
Opt
105.02 Quorum. A quorum shall be required to hold a meeting,
conduct a hearing or receive information of any kind,
and final action shall be taken only by the affirmative vote of a majority of
the board members eligible to participate in the matter in question. A member of the board would not be eligible
to vote on any disciplinary action where he or she had a relationship with any
party to the action including one of doctor-patient, family member, colleague or friend, or had any other experience or knowledge
which would cause such member to prejudge the outcome of the action under
consideration.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
Opt
105.03 Tentative Decisions.
(a)
The board shall, during a public or an executive meeting, as is
appropriate under RSA 9l-A and the circumstances of the case, instruct its
staff or a committee of the board to prepare documents, subject to the final
review and approval of the board. Such
instructions shall be known as tentative decisions.
(b) Tentative
decisions shall not be final actions and shall not be binding upon the
board. The board shall change its
instructions and shall modify the form or the
substance of a tentative decision as often as is required to produce a final
document which satisfactorily sets forth the final result the board intends to
reach. The board's final decision shall
be issued only when the necessary majority has voted in favor of the final form
of the proposed action, allowing time for printing the document in question.
(c)
A board member who did not participate in instructing the staff to
prepare a tentative decision shall be allowed to vote on a final proposal
prepared in accordance with the instructions given in the tentative decision
provided that such member is eligible to vote pursuant to Opt
105.02.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
PART
Opt 106
APPOINTMENT OF COMMITTEES
Opt
106.01 Committees.
(a) A committee
shall consist of one or more board members who have been directed by the board
to investigate and make recommendations on matters which could be handled by
the full board.
(b)
When expressly authorized by the board, the authority of a committee
shall include:
(1) The retention of voluntary assistance from
qualified non-board members;
(2) The retention of paid advisors or
consultants.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7607,
eff 12-5-01
CHAPTER Opt 200 PRACTICE AND
PROCEDURE
PART
Opt 201
PURPOSE
Opt
201.01 Purpose. The board shall conduct various proceedings
for the purpose of acquiring sufficient information to make fair and reasoned
decisions on matters within its statutory jurisdiction, including decisions on
applications for licensure and complaints filed against licensees. These rules shall be construed to secure the
just, efficient and accurate resolution of all board
proceedings.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
202.01 Definitions. Except where the context makes another
meaning manifest, the following words have the meanings indicated when used in
this chapter:
(a) ‘Complaint”
means a written allegation of professional misconduct against a licensee of the
board.
(b) “Data” means all
information other than argument, including oral or written descriptions,
reports, map, charts, drawings, photographs, audio or video recordings,
computer programs, or computer printouts.
(c)
“File” means to place a document in the actual possession of the board.
(d)
"Hearing" means “adjudicative proceeding” as defined by RSA
541-A;1, I, namely “the procedure to be followed in contested cases, as set
forth in RSA 541-A:31 through RSA 541-A:36.”
(e) “Motion” means a
request by a party to a proceeding for an order relating to that proceeding.
(f) “Investigation”
means a formal or informal search by the board for data concerning matters
within its jurisdiction, the result of which is other than a final
determination of a person's rights, duties or privileges.
(g) “Order” means a
document issued by the board:
(1) Establishing procedures to be followed in a
hearing or investigation;
(2) Granting or denying a petition or motion; or
(3) Requiring a person to do, or to abstain from
doing, some thing.
(h) “Petition” means
a request to the board seeking an order or any other action or relief, but does
not include a license application, a complaint against a licensee, or a motion.
(i) “Presiding officer” means presiding officer
as defined by RSA 541-A:1,XIV, namely the individual to whom the board has
delegated the authority to preside over some or all aspects of a hearing, if
any. Otherwise
it shall mean the president of the board.
(j) “Rulemaking”
means the statutory procedures for the formulation of a rule set forth in RSA
541-A:3.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
203.01 Method of Waiver. The presiding officer, upon his or her own
initiative or upon the motion of any party, shall suspend or waive any
requirement or limitation imposed by this chapter upon reasonable notice to
affected persons when the proposed waiver or suspension appears to be lawful,
and would be more likely to promote the fair, accurate and efficient resolution
of issues pending before the board than would adherence to a particular rule or
procedure.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 204
APPEARANCE BEFORE BOARD
Opt
204.01 Representatives.
(a)
A party appearing before the board may be represented by his or her appointed
representative.
(b)
A party’s representative shall file an appearance that includes the
following information:
(1) His or her business address and a daytime telephone
number;
(2) A statement as to whether
or not the representative is an attorney and if so whether such attorney
is licensed in the state of
(3) A brief statement identifying the matter
before the board and the person represented.
(c)
Nothing in this section shall be construed to permit the unauthorized
practice of law.
(d)
The board shall, after notice and opportunity for hearing, prohibit or
restrict an individual from acting as a representative upon a finding that the
individual has engaged in willful misconduct relating to representation before
the board which would be sanctioned by a court if committed by an attorney
appearing before the court.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 205 TIME
PERIODS
Opt
205.01 Computation of Time. Any time period
specified in this chapter shall begin with the day following the act, event, or
default, and shall include the last day of the period, unless it is Saturday,
Sunday, or state legal holiday, in which event the period shall run until the
end of the next day which is not a Saturday, Sunday, or state legal
holiday. When the period prescribed or
allowed is less than 7 days, intermediate Saturdays, Sundays
and state legal holidays shall be excluded from the computation.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
205.02 Change in Allowed Times.
(a)
Upon motion of either party requesting the extension of any time period governing a hearing, the board shall allow the
requested extension of time provided that the presiding officer determines that
good cause has been demonstrated.
(b)
Good cause shall include:
(1) The unavailability of parties, witnesses, or
attorneys necessary to the hearing;
(2) The likelihood that a hearing will not be
necessary because the parties have reached a settlement; or
(3) Any circumstances that demonstrate that an
extension or postponement would assist in resolving the case fairly.
(c)
Except where a time period is fixed by statute,
the board shall, enlarge or shorten the time provided for the filing of any
document, or advance or postpone the time set for any oral hearing, prehearing
conference, or other activity if the presiding officer determines good cause
exists.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
205.03 Limitations. A motion to change time shall not be filed
within 3 business days of the event in question.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 206 FILING
AND SERVICE OF DOCUMENTS
Opt
206.01 Filing of Documents with the
Board.
(a) A document shall
be considered filed when it is actually received at
the board's office in
(b) Documents filed
with the board under these rules shall:
(1) Include the title and docket number of the
proceeding, if known;
(2) Be typewritten or clearly printed on durable
paper 8 ½ by 11 inches in size;
(3) Be signed by the party or proponent of the
document, or, if the party appears by a representative, by the representative;
and
(4) Include a statement certifying that a copy of
the document has been delivered to all parties to the proceeding.
(c)
A document tendered for filing which fails to meet the requirements of
the board's rules shall be returned to the sender and not accepted for
filing. The board shall identify the
rules to which the document failed to conform.
(d)
All correspondence to the board shall be addressed to the board's office
in
(e)
All documents filed shall be filed with an original and 6 copies, except
that only a single copy of correspondence other than correspondence related to
a matter subject to hearing, license applications and complaints against
licensees shall be filed.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
206.02 Subscription and Veracity of
Documents.
(a)
All complaints, petitions, motions, and replies filed with the board
shall be signed by the proponent of the document or, if the party appears by a
representative, by the representative.
(b)
License applications shall be signed only by the applicant.
(c)
The signature on a document filed with the board shall constitute a
certification that:
(1) The signor has read the document;
(2) The signor is authorized to file it;
(3) To the best of the signor's knowledge,
information, and belief, there are good grounds to support it; and
(4) The document has not been filed for purposes
of delay or harassment.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
206.03 Service of Documents.
(a)
Complaints against licensees shall be filed with the board without
service upon the licensee against whom the complaint has been filed.
(b)
Applications, petitions for rulemaking and petitions for declaratory
rulings shall be filed with the board without service upon other persons.
(c)
All motions, replies, exhibits, memoranda, or other documents filed in
an adjudicatory proceeding shall be served by the proponent upon all parties to
the proceeding and any complainant or other interested person who has been
granted intervenor status by the board using the following means:
(1) Depositing a copy of the document in the
United States mails, first class postage prepaid, addressed to the last address
given to the board by the party being served, no later than the day the
document is filed with the board; or
(2) Delivering a copy of the document in hand on
or before the date it is filed with the board.
(d)
All notices, orders, decisions or other
documents issued by the board in the course of an adjudicatory proceeding shall
be served by the board upon all parties to the proceeding by either:
(1) Depositing a copy of the document, first
class postage prepaid, in the United States mails, addressed to the last
address given to the board by the party being served; or
(2) Delivering a copy of the document in hand to
the party.
(e)
When a party has appeared by a representative, service shall be upon the
representative.
(f)
Except for exhibits distributed at a prehearing conference or hearing,
every document filed with the board, and required to be served upon the parties
to an adjudicatory proceeding, shall be accompanied by a certificate of
service, signed by the person making service, attesting to the method and date
of service, and the persons served.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 207
PLEADINGS, COMPLAINTS AND MOTIONS
Opt
207.01 Pleadings.
(a)
The only pleadings permitted shall be petitions and replies to
petitions. Complaints against licensees
are a particular type of petition and shall be governed by Opt
207.02. Applications for licenses shall
not be considered pleadings.
(b)
All petitions shall contain:
(1) The name and address of the petitioner;
(2) The name and address of the petitioner's
representative, if any;
(3) A concise statement of the facts which caused
the petitioner to request the board to act;
(4) The action which the petitioner wishes the
board to take; and
(5) A citation to any statutes, rules, orders, or
other authority which entitles the petitioner to have the board act as
requested.
(c)
All replies to petitions shall contain:
(1) The name and address of the respondent;
(2) The name and address of the representative of
the respondent, if any;
(3) A statement addressing each fact alleged in
the petition pursuant to Opt 207.01(b)(3);
(4) A statement
addressing the authority identified by the petitioner pursuant to Opt 207.01(b)(5);
(5) A concise
statement of each and every additional or different
fact which causes the respondent to request the board not to act, or to act
differently from that requested by the petitioner;
(6) A citation to
any statutes, rules, orders, tariffs, or other authority, not identified in the
petition, having a bearing upon the subject matter of the petition; and
(7) A description of the action which the
respondent wishes the board to take.
(d)
Replies shall be filed within 45 days of the date of the petition.
(e)
Any fact contained in the petition which is not
denied in the reply, shall be deemed admitted by the respondent. A statement that the respondent lacks
sufficient knowledge to admit or deny shall be treated as a denial. The petitioner shall be presumed to deny all
allegations in the reply, and no response shall be permitted to the reply.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
207.02 Complaints of Licensee
Misconduct.
(a)
Any person may make a written complaint charging a person licensed by
the board with misconduct under RSA 327:20 II.
The person making the complaint shall file the complaint with the board.
(b)
The person making the complaint shall include the following information
in the written complaint filed with the board:
(1) The name and address of the complainant;
(2) The name and business address of the licensee
against whom the complaint is directed; and
(3) The specific
facts and circumstances which are believed to constitute professional
misconduct.
(c)
A complaint shall be treated as an ex-parte
request for the initiation of disciplinary proceedings by the board.
(d)
The board shall dismiss a complaint at any time for failure to specify
the grounds therefor or for failure to allege misconduct as it is defined under
RSA 327:20, II.
(e)
At any stage of the board's evaluation of the allegations in a
complaint, the board shall, with the consent of the licensee, issue a final
settlement decree or consent order which imposes discipline upon the licensee
and terminates further disciplinary action in whole or in part under the
following conditions:
(1) The board shall notify the complainant and offer
the complainant the opportunity to submit written comments concerning the
settlement decree or consent order; and
(2) The board finds that there are no material
facts in dispute between the licensee and the complainant, or, that the
complainant's view of the facts, if true, would not result in the imposition of
a greater disciplinary sanction against the licensee than that imposed by the
proposed settlement or consent decree.
(g)
Unless previously settled, a complaint which raises genuine issues of
professional misconduct shall be granted by incorporating those issues into a
notice of hearing which commences a disciplinary hearing pursuant to Opt 501.04. In which
case, disciplinary action against the licensee shall be taken or not taken
based upon the board's evaluation of the evidence of professional misconduct
submitted during the hearing.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
207.03 Motions and Objections Thereto.
(a) Unless presented during an oral session of a
proceeding, all motions and replies shall be in writing.
(b)
All motions shall state clearly and concisely:
(1) The purpose of the motion;
(2) The relief sought by the motion;
(3) The statutes, rules, orders, or other
authority authorizing the relief sought by the motion; and
(4) The facts claimed to constitute grounds for
the relief requested by the motion.
(c)
Replies to motions shall state clearly and concisely:
(1) The defense of the party filing the reply;
(2) The action which the party filing the reply
wishes the board to take on the motion;
(3) The statutes, rules, orders, or other
authority relief upon in defense of the motion; and
(4) Any facts which are additional to or
different from the facts stated in the motion.
(d)
An objection to a motion shall specifically admit or deny each fact
contained in the motion. Failure to deny
a fact contained in a motion shall constitute the admission of that fact for
the purposes of the motion. In the event
a party filing a reply to a motion lacks sufficient information to either admit
or deny a fact contained in the motion, the party shall so state, specifically
identifying each fact.
(e)
The board shall decide motions based upon the writings submitted unless
the motion is presented during an oral session of the proceeding, in which case
the board shall consider the oral argument and the writings in deciding a
motion.
(f)
Unless the board grants a properly filed motion for extension of time,
objections to motions shall be filed within l0 days after the filing of the
motion. Failure to object to a motion
within the time allowed shall constitute a waiver of objection to the motion.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
207.04 Failure to Comply with Rules. In the event a party to a proceeding fails to
comply with these rules in presenting a motion or petition to the board, the
board shall deny the requested action.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 208
ADJUDICATORY PROCEEDINGS
Opt
208.01 Applicability. This part shall govern all hearings conducted
by the board.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
208.02 Commencement.
(a)
The board shall commence a hearing by issuing a notice to the parties at
least 15 days before the first scheduled hearing date or first prehearing
conference. A docket number shall be
assigned to each matter to be heard which shall appear on the notice of hearing
and all subsequent orders or decisions of the agency.
(b)
The notice of hearing shall:
(1) Contain the information required by RSA
541-A:31, III,
namely:
a. A statement of the time, place
and nature of any hearing;
b. A statement of the legal authority under
which a hearing is to be held;
c. A reference to the particular statutes and
rules involved including this Part;
d. A short and plain statement of the issues
presented;
e. A statement that each party has the right to
have an attorney represent them at their own expense;
f. A statement
that each party has the right to have the agency provide a certified shorthand
court reporter at the party’s expense and that any such request shall be
submitted in writing at least 10 days prior to the hearing;
(2) Identify the parties to the proceeding as of
the date of the order and specify a deadline for the submission of petitions to
intervene or statements by complainants that they intend to participate as a
party;
(3) Specify the date by which, and the address
where, appearances or motions by representatives shall be filed;
(4) Specify the date, time, and location of an
initial prehearing conference or dates for an oral hearing; and
(5) Identify the presiding officer for the
proceeding, if other than the president of the board.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
208.03 Docketing, Service of Notice,
Public Notice.
(a) The board shall assign each adjudicatory
proceeding a docket number, and serve the hearing notice upon all parties to
the proceeding and the board's legal counsel in the civil bureau, department of
justice. The hearing notice shall be
served upon the respondent, and the complainant, if any, by means of certified
mail.
(b) Service of all subsequent orders, decisions
and notices issued by the board, including any amendments to the hearing
notice, shall be served upon the parties, including any intervenors, by regular
mail.
(c)
Orders, notices, and decisions of the board, and motions, memoranda,
exhibits, and other documents and data submitted to the board in a docketed
case shall be kept in a docket file and made available for public inspection in
the board's office.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94,
EXPIRED: 6-17-00
New. #7370, INTERIM, eff
9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
208.04 Intervention.
(a)
Complainants and other non-parties may petition the board for
intervention at any time after the commencement of a proceeding.
(b)
The petition to intervene shall:
(1) Be in writing; and
(2) Include the following:
a. The petitioner's interest in the subject
matter of the hearing;
b.
Whether the petitioner appears in
support of the complainant or the respondent, as well as for his or her own
interest;
c. Why the interests of the parties and the
orderly and prompt conduct of the proceeding would not be impaired; and
d. Any other reasons why the petitioner should
be permitted to intervene.
(c)
The presiding officer shall grant a petition for intervention if the
petitioner has an interest in the proceeding and has clearly stated that
interest.
(d)
Persons filing a complaint which becomes the subject of a formal
disciplinary hearing shall be served with the hearing notice and notified that
he or she petition to intervene.
(e)
Once granted leave to intervene, an intervenor shall take the proceeding
as he or she finds it and no portion of the proceeding shall be repeated
because of the fact of intervention.
Source. #7608-A,
eff 12-5-01
Opt
208.05 Right to Counsel. Any party in an adjudicatory proceeding may
be represented by counsel, but an attorney appearing on behalf of a party shall
first file a letter announcing the fact
of
representation at the earliest date practical.
Parties shall retain counsel at their own expense and requests for
appointment of counsel shall not be entertained.
Source. #7608-A,
eff 12-5-01
Opt
208.06 Prehearing and Other Informal
Conferences.
(a)
A prehearing conference in accordance with RSA 541-A:31, V shall be
scheduled on the request of any party or intervenor or on the initiative of the
presiding officer or panel if the presiding officer or panel determines that to
do so would facilitate the proceedings or encourage resolution of the
dispute. Such prehearing conference
shall be held to consider:
(1) Opportunities and procedures for settlement;
(2) Opportunities and procedures for
simplification of the issues;
(3) Possible amendments to the pleadings;
(4) Possible admissions of fact and of documents
to avoid unnecessary proof;
(5) Possible limitations on the number of
witnesses;
(6) Possible changes to the standard procedures
which would otherwise govern the
proceeding;
(7) The distribution of written testimony, if
any, and exhibits to the parties;
(8) Possible consolidation of the examination of
witnesses by the parties; and
(9) Any other matters which might contribute to
the prompt and orderly conduct of the proceeding.
(c)
The board shall cause such conferences to be recorded unless all parties
wish to discuss possible settlement off the record. Matters decided at an informal conference
shall be reflected in an order.
Source. #7608-A,
eff 12-5-01
Opt
208.07 Discovery and Disclosure.
(a)
Upon the written request of a party, the board shall disclose to the
parties to a proceeding any information, not privileged, in the possession of
the board, which relates to the subject matter of the proceeding.
(b)
Each party shall attempt in good faith to make complete and timely
response to requests for the voluntary production of information or documents
relevant to the hearing.
(c)
Any party may make a motion requesting that the presiding officer order
the parties to comply with information requests. The motion shall be filed at least 30 days
before the date scheduled for the hearing, or as soon as possible after
receiving the notice of hearing if such notice is issued less than 30 days in
advance of the hearing.
(d)
The moving party’s motion shall:
(1) Set forth in detail those factors which it
believes to justify its request for information; and
(2) List with specificity the information it is
seeking to discover.
(e)
When a party has demonstrated that such requests for information are
necessary for a full and fair presentation of the evidence at the hearing, the
presiding officer shall grant the motion.
Source. #7608-A,
eff 12-5-01
Opt
208.08 Evidence.
(a)
Proceedings shall not be conducted under the rules of evidence, but, the evidentiary privileges recognized by the law of
(b)
All information which will assist the board to arrive at the truth is
admissible, but the presiding officer shall exclude irrelevant, immaterial or unduly repetitious evidence.
(c)
The board shall direct that evidence be submitted in written form unless
the evidence is in the form or testimony of witnesses made under oath or
affirmation.
(d)
If the board officially notices a fact, it shall so state, and permit
any party or intervenor, upon timely request, the opportunity to show the
contrary.
(e)
Witnesses appearing before the board shall testify under oath or
affirmation administered by the presiding officer.
(f) The board shall cause a tape recording or
stenographic record to be made of hearings and prehearing conferences. At the request of a party to any proceeding
involving disciplinary action, the record of the proceeding shall be made by a
certified shorthand court reporter provided by the board at the requesting
party’s expense. A request for a
certified shorthand court reporter shall be filed at least 10 days prior to the
hearing. This record shall be
transcribed if a request is made by a party who also agrees to pay the cost of
transcription or upon the board’s own initiative, in which case the board shall
pay the cost of transcription. If a
transcript is produced, the board shall maintain a copy of the transcript in
the file of the matter.
Source. #7608-A,
eff 12-5-01
Opt
208.09 Continuances.
(a)
Any party to a hearing may make an oral or written motion that a hearing
be continued to a later date or time.
(b)
If a continuance is requested by a party to the hearing, it shall be
granted if the presiding officer determines that good cause has been
demonstrated. Good cause shall include
the unavailability of parties, witnesses or attorneys
necessary to conduct the hearing, the likelihood that a hearing will not be
necessary because the parties have reached a settlement or any other
circumstances that demonstrate that a continuance would assist in resolving the
case fairly.
(c)
If the later date, time and place are known at
the time of the hearing that is being continued, the date, time and place shall
be stated on the record. If the later
date, time and place are not known at the time of the hearing that is being
continued, the presiding officer shall issue a written scheduling order stating
the date, time and place of the continued hearing as soon as practicable.
Source. #7608-A,
eff 12-5-01
Opt
208.10 Burden of Proof.
(a)
The party asserting the affirmative of a proposition shall have the
burden of proving the truth of that proposition by a preponderance of the
evidence.
(b)
Without limiting the generality of paragraph (a), above, all moving
parties and all petitioners shall have the burden of persuading the board that
their motion or petition should be granted.
Source. #7608-A,
eff 12-5-01
Opt
208.11 Methods of Proceeding. Where facts material to the subject matter of
the proceeding are in dispute, and personal observation of witnesses or the
immediate opportunity for cross-examination of witnesses is necessary or
desirable, the proceeding shall, to that extent, consist of a trial-type evidentiary
hearing with the subsequent submission of memorandum, or according to the order
of the board as stated in the notice of hearing under Opt
208.02(b).
Source. #7608-A,
eff 12-5-01
Opt
208.12 Proposed Findings of Fact and
Conclusions of Law.
(a) Any party may
submit proposed findings of fact and conclusions of law to the presiding
officer prior to or at the hearing.
(b)
Upon request of any party, or if the presiding officer determines that
proposed findings of fact and conclusions of law would serve to clarify the
issues presented at the hearing, the presiding officer shall specify a date
after the hearing for the submission of proposed findings of fact and
conclusions of law.
(c)
In any case where proposed findings of fact and conclusions of law are
submitted, the decision shall include rulings on the proposals.
Source. #7608-A,
eff 12-5-01
Opt
208.13 Ex Parte
Communications. Unless required for
the disposition of ex parte matters authorized by
law, no board member, party, intervenor or party representative, shall
communicate, directly or indirectly, in connection with any issue before the
agency, with any party or person, except upon notice and opportunity for all
parties to participate.
Source. #7608-A,
eff 12-5-01
Opt 208.14 Closing the Record.
(a)
After the conclusion of the hearing, the record shall be closed and no
other evidence shall be received into the record, except as allowed by (b)
below and Opt 208.16.
(b)
Before the conclusion of the hearing, a party may request that the
record be left open to allow the filing of specified evidence not available at
the hearing. If the other parties to the
hearing have no objection or if the presiding officer determines that such
evidence is necessary to a full consideration of the issues raised at the
hearing, the presiding officer shall keep the record open for the period of
time necessary for the party to file the evidence.
Source. #7608-A,
eff 12-5-01
Opt
208.15 Reopening the Record. At any time prior to the issuance of the
decision on the merits, the presiding officer, on the presiding officer’s own
initiative or on the motion of any party, shall reopen the record to receive
relevant material and non-duplicative testimony, evidence or arguments not
previously received, if the presiding officer determines that such testimony,
evidence or arguments are necessary to a full and fair consideration of the
issues to be decided.
Source. #7608-A,
eff 12-5-01
Opt
208.16 Decisions.
(a)
A board member shall not participate in making a decision unless he or
she personally heard the testimony in the case, unless the matter’s disposition
does not depend on the credibility of any witness and the record provides a
reasonable basis for evaluating the testimony.
(b)
If a presiding officer has been delegated the authority to conduct a
hearing in the absence of a majority of the members of the board who are to
render a final decision, the presiding officer shall submit to the board a
written proposal for decision, which shall contain a statement of the reasons
for the decision and findings of fact and rulings of law necessary to the
proposed decision.
(c)
If a proposal for decision in a matter not personally heard by all board
members voting on the decision is adverse to a party to the proceeding other
than the board itself, the board shall serve a copy of the proposal for
decision on each party to the proceeding and provide an opportunity to file
exceptions and present briefs and oral arguments to the board.
(d)
A proposal for decision shall become a final decision upon its approval
by the board.
(e)
A board shall keep a decision on file in its records for at least 5
years following the date of the final decision or the date of the decision on
any appeal, unless the board sets a different retention period pursuant to
rules adopted under RSA 327:31.
Source. #7608-A,
eff 12-5-01
PART
Opt 209
PRESIDING OFFICERS
Opt
209.01 Designation.
(a)
Adjudicatory proceedings commenced by the board shall be conducted by a
presiding officer.
(b)
The board shall appoint one of its members to serve as a presiding
officer.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
209.02 Authority of Presiding Officer.
(a)
The presiding officer shall possess all authority with respect to the
procedural aspects of adjudicatory proceedings including, but not limited to,
the power to administer oaths and affirmations, direct the course of the
proceeding, and decide procedural and discovery issues.
(b)
The presiding officer shall receive no testimony or oral argument on the
merits of the case unless at least a majority of board members eligible to vote
including the presiding officer are present.
The presiding officer shall have the authority to conduct prehearing
conferences, or hear arguments on procedural or discovery motions without
requiring the presence of other members of the board.
(c)
The presiding officer shall, to the extent consistent with the fair and
orderly conduct of the proceeding, permit board members who are present during
any stage of an adjudicatory proceeding to make inquiries of the witnesses.
(d)
The presiding officer shall not accept final offers of settlement or
impose consent decrees, but shall assist the parties in reaching
settlements. When a settlement has been
proposed in writing, the presiding officer shall refer it to the board for decision,
but shall not stay the proceeding while the board is deliberating on the
settlement proposal.
(e)
The presiding officer shall not decide motions or enter orders which
finally resolve the proceeding or stay the proceeding. Potentially dispositive motions may be
referred to the board.
(f)
If the presiding officer believes that a default or similar final order
should enter against a party, the presiding officer shall issue a written
recommendation to the board, with service on the parties and any intervenors,
if applicable. The board shall make the
final decision with respect to such a recommendation after allowing the parties
l0 days to file objections thereto.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
209.03 Exceptions to Rulings By The
Presiding Officer.
(a)
There shall be no interlocutory appeal to the board of procedural or
discovery orders made by the presiding officer.
Contemporaneous exceptions to such rulings shall be unnecessary and
shall not be made.
(b)
The parties may include objections to an adverse ruling of a presiding
officer in any proposed decision under Opt
209.04. When a proposed decision is not
issued, such objections shall be presented to the board as a motion or as part
of a closing memorandum submitted within 10 days from the close of the hearing.
Source. #7608-A,
eff 12-5-01
Opt
209.04 Presiding Officer; Withdrawal. The board shall at any time, and without notice
or hearing, replace the presiding officer if circumstances exist which would
require the presiding officer to withdraw according to the following criteria:
(a)
Upon his or her own initiative or upon the motion of any party, a
presiding officer or agency official shall, for good cause withdraw from any
hearing.
(b)
Good cause shall exist if a presiding officer or agency official:
(1) Has a direct interest in the outcome of a
proceeding, including, but not limited to, a financial or family relationship
with any party; or
(2) Has made statement or engaged in behavior
which objectively demonstrates that he or she has prejudged the facts of a
case; or
(3) Personally believes that he or she cannot
fairly judge the facts of a case.
(c)
Mere knowledge of the issues, the parties or any witness shall not
constitute good cause for withdrawal.
Source. #7608-A,
eff 12-5-01
PART
Opt 210
RECONSIDERATION AND STAY
Opt
210.01 Motion for Reconsideration or
Rehearing.
(a) The rules in
this section allow a person affected by a final decision of the board to
request a rehearing of a decision prior to appealing the decision.
(b)
An adjudicatory order of the board, or an order denying a petition for
declaratory rulings or rulemaking, shall not be final until the date it is
served upon the parties pursuant to Opt 206.03(d).
(c)
A motion for rehearing shall be filed within 30 days of the date of an
agency decision or order.
(d)
A motion for rehearing or reconsideration shall:
(1) Include any memorandum of law the petitioner
wishes to submit;
(2) Identify each error of fact, error of
reasoning, or erroneous conclusion contained in the final order which the
moving party wishes reconsidered;
(3) Describe how each error causes the agency’s
decision to be unlawful, unjust or unreasonable, or illegal in respect to
jurisdiction, authority or observance of the law, an abuse of discretion or
arbitrary unreasonable or capricious; and
(4) Concisely state the correct factual findings,
correct reasoning, and legal conclusion urged by the moving party.
(e)
A motion for rehearing shall be granted if it demonstrates that the
board’s decision is unlawful, unjust or unreasonable.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 211
CONSOLIDATION AND SEVERANCE
Opt
211.01 Consolidation. Whenever it shall appear to the board, upon
motion or its own initiative, that 2 or more proceedings involve substantially
similar or substantially related issues, the board shall, as fairness and
efficiency permit, consolidate those proceedings for hearing, or decision, or
both.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
211.02 Severance. Whenever it shall appear to the board, upon
motion or its own initiative, that injury to the substantial rights of a party
or undue delay may be thereby avoided, the board shall, as fairness and
efficiency permit, sever one or more issues from a proceeding, and dispose of
those issues in another proceeding.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
PART
Opt 212
INVESTIGATIONS
Opt
212.01 Informal Investigations.
(a)
Notwithstanding any other provision of this title, the board, within the
limits of its authority, and acting through its members, officers and
employees, or through independent contractors, shall make inquiry of any person
and otherwise gather data, and prepare reports describing the data obtained
whenever:
(1) It receives data which leads it to believe
that a violation of any statute administered by the board, or of any rule of
the board, has occurred, or is likely to occur; or
(2) It desires to obtain data for any other
lawful purpose.
(b)
Informal investigations shall as necessary include requests for
additional information from the complainant such as requests for a release of
relevant medical records belonging to or under the control of the complainant
and face-to-face meetings with interested persons.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
212.02 Formal Investigations.
(a)
The board shall commence a formal investigation for the purpose of
obtaining documents, recording testimony, and otherwise gathering information
relevant to any matter within its jurisdiction.
(b)
Formal investigations shall be commenced by the issuance of an order of
investigation containing:
(1) The statutory or regulatory authority for the
investigation;
(2) Any statutes or rules believed to have been,
or about to be, violated;
(3) The identity of the persons, or class of
persons, which are the subject of the investigation;
(4) The general nature of the conduct being
investigated;
(5) The identity of the investigating officer or
committee; and
(6)
The date upon which the investigating officer shall report his or her findings
and recommendations to the board.
(c)
The issuance of an order of investigation shall not commence a
disciplinary hearing and shall not constitute an allegation of misconduct
against a licensee.
Source. #7608-A,
eff 12-5-01
Opt
212.03 Investigators. The board shall appoint a member of the
board, or its staff, or an attorney, to conduct a formal or informal
investigation.
Source. #7608-A,
eff 12-5-01
PART
Opt 213
RULEMAKING
Opt
213.01 How Adopted. A board rule, or any amendment or repeal
thereof, shall be adopted by order after notice and opportunity for a
legislative-type hearing as provided by RSA 541-A:3 et seq. Rules shall be proposed by petition or by the
board acting on its own motion.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
213.02 Petition for Rulemaking. Any person may request the board to commence
a proceeding for the purpose of adopting, amending, or repealing a rule by
filing a petition which contains the following information which the board
shall review in making a decision as to whether to grant the request:
(a)
A statement of the petitioner's interest in the subject matter of the
proposed rule;
(b)
The text of the proposed rule or a statement of the particular results
intended by the petitioner to flow from the implementation of the proposed
rule;
(c)
If the petitioner proposes to amend or repeal an existing rule, an
identification of the particular rule sought to be amended or repealed; and
(d)
Any data or argument the petitioner believes would be useful to the
board in deciding whether to commence a rulemaking proceeding.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7608-A,
eff 12-5-01
Opt
213.03 Disposition of Petition.
(a)
The board shall, by order, grant or deny a petition for rulemaking.
(b)
If the petition is denied, the board shall state the reason therefor in the
order.
(c)
The board shall deny the petition for rulemaking when the adoption,
amendment or repeal sought would result in:
(1) A rule which is not within the rulemaking
authority of the board;
(2) Duplication of a rule or of a statutory
provision;
(3) Inconsistency between the existing rules and
the statutory mandate of the board;
(4) Inconsistency of administrative rules one
with another; or
(5) Excessive
burden upon the board in terms of cost or a reduction in efficiency or
effectiveness.
(d)
If the petition is granted, the board shall undertake to commence a
rulemaking proceeding in accordance with RSA 541-A:4.
Source. #7608-A,
eff 12-5-01
Opt
213.04 Commencement of Rulemaking
Proceeding. The board shall commence
a rulemaking proceeding by following the procedures set forth in RSA 541-A:4 et
seq.
Source. #7608-A,
eff 12-5-01
Opt
214.01 Purpose. The purpose of this part is to provide a
uniform procedure for the conduct of public hearings at which comment from the
general public will be solicited for evaluation and consideration by the board
relative to rulemaking.
Source. #7608-A,
eff 12-5-01
Opt
214.02 Scope.
(a)
These rules shall apply to all hearings required by state law to be conducted
by the board at which public comment shall be solicited, except that they shall
not apply to adjudicative hearings.
(b)
If any requirement set by these rules conflicts with an applicable
statute, such other authority shall control.
Source. #7608-A,
eff 12-5-01
Opt
214.03 Notice.
(a)
A public comment hearing concerning rulemaking shall be commenced by
placing notice of the hearing in the “Rulemaking Register” so that it shall
appear at least 20 days prior to the hearing date.
(b)
Notice for rulemaking public comment hearings shall comply with RSA
541-A:6, I.
(c)
Nothing in these rules shall prohibit the board from giving greater
notice than the minimums set out in this part.
Source. #7608-A,
eff 12-5-01
Opt
214.04 Media Access.
(a)
Public comment hearings shall be open to the print and electronic media.
(b) The moderator shall place limits on the
activities of the media to avoid disruption in the following ways:
(1) Limit the number of media representatives
when their presence is disproportionate to the number of citizens present and
shall cause citizens to be excluded;
(2) Limit the placement of television cameras to
certain locations in the hearing room; and
(3) Prohibit interviews from being conducted
within the hearing room during the hearing.
Source. #7608-A,
eff 12-5-01
Opt
214.05 Moderator.
(a)
The hearing shall be presided over by a moderator who shall be the board
chairperson or a designee.
(b)
The moderator shall:
(1) Call the hearing to order;
(2)
Cause a recording of the hearing to be
made;
(3) Place limits on the media to avoid disruption
as set out in Opt 214.04(b);
(4) Recognize those who wish to be heard and
establish the order thereof;
(5) Limit the time for each speaker, as set out
in Opt 214.06(b);
(6) Remove or have removed any person who
disrupts the hearing;
(7) Adjourn the hearing; and
(8) Provide opportunity for the submission of
written comments.
Source. #7608-A,
eff 12-5-01
Opt
214.06 Public Participation.
(a)
Any person who wishes to speak on the issue or issues which are the
subject of the hearing shall place his or her name and address on a speakers’
list before the last speaker on the list has finished speaking. All whose names appear on the speakers’ list,
as provided, shall be afforded reasonable time to speak at the hearing. Reasonable time shall be determined
considering the number of people who wish to be heard, the time and the
availability of the facility.
(b)
The board, through the moderator, shall:
(1) Refuse to recognize a person who refuses to
give his or her full name and address;
(2) When a group or organization wishes to
comment, limit the group to no more than 3 spokespersons, provided that the
members who are present shall be allowed to enter their names and addresses
into the records as supporting the position by the group or organization;
(3) Revoke recognition of a speaker who speaks or
acts in an abusive or disruptive manner; or
(4) Revoke recognition of a speaker who refuses
to keep his comments relevant to the issue or issues which are the subject of
the hearing.
(c)
Written comments may be submitted any time from the time notice has been
published until the record has been closed by the moderator, which shall not be
less than 7 calendar days after the hearing.
(d)
In the event that the number of speakers who wish to give oral testimony
relevant to the issue or issues involved exceed that number which can be heard
within a reasonable period of time subject to facility availability and length
of the hearing, the hearing shall be reconvened pursuant to applicable
provisions in RSA 541-A to afford such persons the opportunity to be
heard. Speakers may elect to submit
written testimony in lieu of additional oral hearing.
Source.
#7608-A,
eff 12-5-01
PART
Opt 215
DECLARATORY RULINGS
Opt
215.01 Petitions.
(a)
Any person may request a declaratory ruling from the board on matters
within its jurisdiction by filing an original and 6 copies of a petition
pursuant to Opt 207.01(b).
(b)
Such a petition shall also set forth the following information:
(1) The exact ruling being requested;
(2)
The statutory and factual basis for the ruling, including any supporting
affidavits or memoranda of law; and
(3) A statement as to how and why the issuance of
a ruling on this subject would benefit the petitioner.
Source. #7608-A,
eff 12-5-01
Opt
215.02 Action on Petitions.
(a)
The petitioner shall provide such further information or participate in
such evidentiary or other proceedings as the board directs after reviewing the
petition and any replies received.
(b)
The board shall deny a petition when:
(1) Other procedural options are available to the
interested parties or the board;
(2) The board's budget or workload require other
matters to take priority; or
(3) The ruling would impact inappropriately upon pending
administrative, judicial or legislative proceedings.
Source. #7608-A,
eff 12-5-01
PART
Opt 216 WAIVER
OF SUBSTANTIVE RULES
Opt
216.01 Petitions for Waiver.
(a)
Any interested person may request the board to waive any rule not
covered by Opt 203.01 by filing an original and 6
copies of a petition pursuant to Opt 207.01(b) which
also identifies the rule in question and sets forth specific facts and arguments
which support the requested waiver.
(b)
Petitions for waivers of substantive rules shall address whether:
(1) Adherence to the rule would cause the petitioner
hardship;
(2) The requested waiver is necessary because of
any neglect or misfeasance on the part of the petitioner;
(3) Waiver of the rule would be consistent with
the statutes administered by the board; and
(4) Waiver of the rule would injure third
persons.
(c)
If examination of the petition reveals that other persons would be affected
by the proposed relief, the board shall require service of the petition on each
such persons and advise each that she or he may file a reply to the petition
pursuant to Opt 207.01(c).
(d)
The petitioner shall provide further information or participate in such
evidentiary or other proceedings as may be ordered by the board as necessary to
complete action on the petition.
(e)
A petition for waiver of a rule which does not contain the information
required in (b) above shall be denied without further notice or hearing.
(f)
The board shall waive a substantive rule either in response to a
petition or upon its own motion after providing affected parties with notice
and an opportunity to be heard.
(g) The board shall issue an order waiving a
substantive rule if it determines after a hearing that:
(1) Adherence to the rule would cause personal or economic hardship to affected individuals;
(2)
There is no neglect or misfeasance on
the part of the petitioner, if applicable;
(3)
Waiver of the rule would be consistent
with the statutes administered by the board; and
(4)
Waiver of the rule would not injure
third persons.
Source. #7608-B, eff 12-5-01; ss by #9558, eff
10-6-09; ss by #12382, eff 9-16-17
PART Opt 217
EXPLANATION AFTER ADOPTION
Opt
217.01 Explanation after Adoption.
(a) Any person may request an explanation
regarding adoption of the rules pursuant to RSA 541-A:11, VII by submitting a
request to the board.
(b) The request shall be considered at the next
scheduled board meeting and the board shall issue a response within 45 days
after consideration.
Source. #7608-B, eff 12-5-01; ss by #9558, eff
10-6-09; ss by #12382, eff 9-16-17
CHAPTER Opt 300 APPLICATIONS
FOR INITIAL LICENSURE
PART Opt 301 LICENSURE BY
EXAMINATION
Opt
301.01 Application Process.
(a) Any person who is not licensed as an
optometrist in any state or other jurisdiction and who wishes to apply for a
license in New Hampshire shall do so by submitting an application provided by
the board which contains the information specified by Opt
301.02, and the application fee specified by Opt 303.01.
(b) An application shall not be accepted for
filing and shall be returned to the applicant if it:
(1) Is not signed by the applicant;
(2) Is not accompanied by a valid check for the
application fee;
(3) Does not comply with the indicated filing
deadlines; or
(4) Lacks a required attachment or plainly
reveals that a required item of information is absent and unaccompanied by a
request for waiver of the missing attachment or information.
(c) Unless expressly rejected within 2 weeks of
its receipt by the board, the application shall be deemed accepted on the date
it was first received by the board. An
application shall not be considered on file with the board until it has been
accepted for filing.
(d) The board shall acknowledge the receipt of
all applications within 60 days from acceptance for filing, and shall also
notify the applicant in writing of any deficiencies in the application or any
further information needed to evaluate the applicant's qualifications. This additional information shall be provided
by the applicant within 30 days from the date of the board's letter. Failure to provide such information shall
result in the denial of the application.
(e) Unless a waiver of the following time limit
has been requested by the applicant and granted by the board, the board shall,
within 120 days from acceptance for filing, either grant the application or
deny the application until the issues identified in the denial order have been
resolved.
(f) The board shall not grant a license on an
application until it receives notice from the National Board of Examiners in
Optometry (NBEO) that the applicant has passed the NBEO examination, and until
any investigation into the applicant’s qualification for licensure is
completed.
(g) If an application is denied, the applicant
shall be provided an opportunity to request a hearing on the deficiencies
identified by the board within 30 days of the board's order. If a timely hearing is not requested, denial
shall be final.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt 301.02 Application
Form. Applicant’s for licensure
shall provide, or cause to be provided, the following on a “Application for
Licensure” form, effective August 2017, supplied by the board:
(a) The applicant's full name and address;
(b) Birth date, place of birth, and social
security number;
(c) The name(s), address(es) and degree(s) of all
colleges or junior colleges attended at either an undergraduate or graduate
level, and an official transcript showing each degree awarded;
(d) The name(s), address(es), and degree(s) of
all optometry colleges attended, and an official transcript showing each degree
awarded;
(e) A statement as to whether the applicant has
passed the National Board of Examiners in Optometry (NBEO) Exam, parts I, II
and III, and if so, a statement that a request has been made for the NBEO to
forward a certified copy of the score report directly to the board as required
by Opt 301.05(a);
(f) If the applicant passed the NBEO exam prior
to
(g) A statement as to whether the applicant has
passed the New England Regional Clinical Optometric Assessment Testing Service
(NERCOATS) exam, or its successor, and if so, a statement that a request has
been made for the testing authority to forward a certified score report
directly to the board pursuant to Opt 301.06(c);
(h) Original letters of reference from 2
practicing doctors of optometry, which identifies the name and address of each
such doctor;
(i) A copy of a valid
certificate verifying that the applicant has completed a program that certifies
ability to perform cardio-pulmonary resuscitation (CPR) for adult, child and
infant life support;
(j) If the applicant graduated from an accredited
college of optometry prior to January 1, 1993, a statement as to whether the
applicant has successfully completed a 105 hour post-graduate course that meets
the requirements of Opt 301.03(c) and if so, a
statement that a request has been made for the college of optometry to provide
a certificate of completion showing fulfillment of all the requirements of Opt 301.03(c);
(k) A statement as to whether the applicant is
currently or has been, but is not now, licensed to practice optometry in any
state or other jurisdiction, and if so:
(1) The type of license;
(2) The issuing jurisdiction;
(3) The dates of the license; and
(4) The reason the applicant no longer holds the
license, if applicable.
(l) A statement as to whether the applicant has
ever been refused a license by any optometry licensing body, and if so, the
name of the board, the date of denial and the reasons for denial;
(m) A statement as to whether the applicant has
ever had a license to practice optometry suspended or revoked in any
jurisdiction and, if yes, an explanation of such suspension or revocation;
(n) A statement as to whether the applicant has
ever been convicted of a felony or misdemeanor that has not been annulled, and,
if so, the name of the court, the details of the offense, the date of
conviction and the sentence imposed;
(o) A recent, unretouched 2" x 2"
photograph of the applicant;
(p) A statement that cash, a check or money
order, made out to the Treasurer, State of New Hampshire in the amount of the
application fee required by Opt 303.01(a) is enclosed
with the application;
(q) A declaration that the applicant shall
practice ethically and within the rules and laws governing the practice of
optometry;
(r) A declaration that the applicant shall comply
with all of the rules of the board, specifically including those governing
renewals and requirements for continuing education, Opt
400;
(s) A declaration that the applicant is the
person identified in the application and that all information contained in the
application is true and correct; and
(t) The date and signature of the applicant.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt 301.03 Educational
Qualifications.
(a) Each applicant for licensure shall have
completed a minimum of 2 years at a college of arts and sciences.
(b) Each applicant shall have graduated from an
optometry college which requires a minimum of 4 years of training and is
accredited by an established accrediting body recognized by the U.S. Department
of Education.
(c) Applicants who graduated from optometry
college prior to
(1) The post-graduate courses shall be given or
sponsored by an accredited college of optometry, as specified in Opt 301.03(b);
(2) The post-graduate coursework shall include a
total of 80 hours of didactic instruction made up of the following subjects:
a. General, systemic and ocular pharmacology;
b. Diagnosis and treatment of anterior segment
disease;
c. Diagnosis and treatment of glaucoma; and
d. Pre-surgical and post-surgical care; and
(3) The post-graduate coursework shall include at
least 25 hours of direct clinical training that includes all subjects listed
above.
(d) Each applicant shall arrange for the college
of optometry to submit a certificate of completion of the requirements of Opt 301.03 directly to the board.
(e) Education gained in the armed services, to be
creditable, shall be of a character equivalent to that which would have been
gained in the civilian sector.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; ss by #6797, eff 7-10-98; ss
by #7433, eff 1-25-01; EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt 301.04 Character Qualifications. An application shall be denied if:
(a) The applicant, or someone acting on the
applicant's behalf, has submitted false information to the board which is
material to the board’s assessment of the applicant’s qualifications for
licensure, or has neglected to disclose information which is material to the
board’s assessment of the applicant’s qualifications for licensure;
(b) Evidence of past disciplinary action taken by
another licensing body indicates the applicant cannot be relied upon to
practice competently, safely and honestly, or adhere to the ethical standards
required by Opt 502.01; or
(c) Evidence of convictions of a felony or
misdemeanor indicates the applicant cannot be relied upon to practice
competently, safely and honestly, or adhere to the ethical standards required
by Opt 502.01.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
301.05 Written Examination.
(a) An application shall be denied unless the
applicant passes the NBEO Exam, parts I,
II and III which shall be administered by the NBEO or any successor agency
designated by the board. The applicant
shall make arrangements to have the NBEO send the scores directly to the board.
(b) The board shall administer an examination
consisting of questions requiring a knowledge of RSA 327 and the rules of the
board, current federal and state laws pertaining to prescriptive privileges and
requirements, including those pertaining to controlled substances. The passing grade shall be 75% or greater.
(c) Each applicant shall be informed of the
results of the New Hampshire law examination within 30 days of the completion
of the exam.
(d) An applicant who passed the NBEO prior to
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt
301.06 Proficiency Exam.
(a) An application shall be denied unless the
applicant successfully passes a clinical proficiency examination given by NBEO,
NERCOATS or its successor.
(b) The clinical proficiency examination shall
require the applicant to demonstrate clinical proficiency in, but not limited
to the following:
(1) Diagnosis and treatment of visual disorders;
(2) Diagnosis and treatment of ocular diseases;
(3) Use of current instrumentation;
(4) Clinical methods used in optometry; and
(5) Interpretation of the results of these
devices and methods.
(c) Each applicant shall arrange for the testing
agency to send test scores directly to the board.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt
301.07 Frequency of Examinations. The New Hampshire law exam shall be
administered by the board by appointment at the board’s regularly scheduled
meeting held at the board’s office in Concord.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
(from Opt 301.08)
Opt
301.08 Prohibition on Pharmaceutical
Agents.
(a)
No optometrist licensed in New Hampshire shall utilize any
pharmaceutical agents unless therapeutic pharmaceutical agent (TPA) or
therapeutic pharmaceutical agent/glaucoma (TPA/G) certification has been issued
by the board.
(b)
Optometrists licensed in New Hampshire shall display in a conspicuous
manner a notation indicating whether or not the optometrist is certified to use
pharmaceutical agents, as either a TPA or TPA/G certified optometrist.
(c) Optometrists licensed in New Hampshire shall
make available to all consumers a brochure provided by the board describing the
services available from non-TPA, TPA and TPA/G certified optometrists. The brochure shall be intended for use as
information only and shall state the required information consistent with the
laws and with this rule.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; ss by #7889, eff 5-20-03,
EXPIRED: 5-20-11
New. #10243, eff 12-18-12; ss by #12383, eff
9-16-17 (from Opt 301.09)
Opt
301.09 Application for TPA
Certification.
(a)
In order to obtain TPA certification any optometrist licensed in New
Hampshire prior to January 1, 1993 shall file an “Application for Therapeutic
Certification” form, effective August 2017, with the board.
(b)
The application shall include the following:
(1) The name and New Hampshire license number of
the applicant;
(2) The business address and telephone number of
the applicant;
(3) Certification from the NBEO that the
applicant has successfully passed the TMOD exam given by that organization;
(4) A copy of an original certified certificate
from an American Heart Association, American Red Cross, National Safety
Council, or American Safety and Health Institute qualified instructor showing
that the applicant has successfully completed a course in CPR, level C for
adult and child life support; and
(5) A letter from an accredited college of
optometry in the United States showing proof of passage of a 105 hour
post-graduate level course in the treatment and management of ocular disease
which shall include at least 25 hours of direct clinical training.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #9801, eff 10-19-10;
ss by #12383, eff 9-16-17 (formerly Opt 301.10)
PART
Opt 302 LICENSURE
BY ENDORSEMENT
Opt
302.01 Application Process.
(a)
Any person wishing to apply for an optometry license based upon
possession of a current and valid license from a jurisdiction which meets the
requirements of Opt 302.04(a)(2) shall do so by submitting
an “Application for Licensure” form, effective August 2017, provided by the
board which contains the information specified by Opt
302.02, and the application fee specified by Opt
303.01(a).
(b) Applications for licensure by
endorsement shall be accepted for filing and processed in accordance with the
procedures in Opt 301.01.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt
302.02 Requirements for Licensure by
Endorsement. Each applicant for
licensure by endorsement shall meet the requirements of Opt
301.01, and provide the following additional information:
(a)
A chronological record of the applicant's professional practice from the
date of first licensure in any jurisdiction, including the name and address of
the practice, and a thorough description of the nature of the practice;
(b)
A statement as to whether the applicant has been the subject of
disciplinary action of any kind by an optometric or other professional
licensing authority, or has entered into a settlement agreement or consent
decree with any such licensing authority, and, if so, the name of the licensing
authority and a complete description of the misconduct alleged and the
discipline or settlement involved;
(c)
A statement as to whether, at the time of application, the applicant is
the subject of a misconduct investigation or disciplinary proceeding, or is
negotiating a settlement of any misconduct allegations, with an optometric or
other professional licensing authority in any jurisdiction, and, if so, the
name of the licensing authority and a complete description of the misconduct
alleged or the settlement involved; and
(d)
The name and address of any optometric specialty or certification board
with which the applicant is now, or has previously been, credentialed, and the
dates during which the applicant was credentialed.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt
302.03 New Hampshire Law Examination. Applicants for licensure by endorsement shall
take and pass the written exam as defined in Opt
301.05(b).
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt 302.04 Acceptance or Denial of Licensure by
Endorsement.
(a)
An application shall be denied if the applicant does not demonstrate
that:
(1) He or she holds a valid and current license
from another state or territory of the United States, the District of Columbia
or the Commonwealth of Puerto Rico; and
(2) The licensing standards of the licensing
jurisdiction in question are equivalent to or higher than those of New
Hampshire, and specifically meet the requirements of RSA 327.
(b)
An application shall be denied if the applicant does not pass the state
examination specified in Opt 301.05(b).
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
(formerly 304.03)
PART Opt 303 FEES
Opt
303.01 Fee Schedule. The fees required by the board under RSA 327
shall be as set forth in Table 303.1 Fee Schedule below.
Table 303.1 Fee
Schedule
Initial
Application Fee |
$300.00 |
Biennial Renewal
Application Fee |
$300.00 |
Reinstatement of
License Pursuant to RSA327:13-a. |
$300.00 |
Application Fee
for TPA Certification |
$ 25.00 |
Registration as
an out of state contact lens dispenser |
$300.00 |
Annual Renewal
of out of state contact lens dispenser permit |
$150.00 |
Duplicate
license pocketcard |
$ 10.00 |
Duplicate wall
certificate |
$ 25.00 |
Verification of
license |
$ 20.00 |
List of licensed
optometrists on paper or labels |
$ 50.00 |
List of licensed
optometrists on disk or by email |
$ 25.00 |
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; amd
by #6098, eff 10-1-95, all but paragraphs (g) & (h) EXPIRED: 6-17-00; ss by
#7433, eff
1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17;
ss by #12865, eff 9-10-19
PART Opt 304 REGISTRATION
OF OUT OF STATE CONTACT LENS DISPENSERS
Opt
304.01 Application for Registration
as an Out of State Contact Lens Dispenser.
Applicants for registration of an out of state contact lens dispenser
shall pay the registration fee specified in Opt
303.01 and provide the following on a “Application for Registration as an Out
of State Contact Lens Dispenser” form, effective August 2017, supplied by the
board:
(a)
The name and address of the business;
(b)
The telephone number of the business;
(c)
The type of business organization and names and titles of all principal
owners or officers of the business;
(d)
The names and business addresses of all subsidiaries, branches or
divisions of the business which provide spectacles or contact lenses for retail
sale or which provide optometric or ophthalmic care;
(e)
A declaration that the business is in compliance with all applicable
laws and regulations in the state in which it is physically located;
(f)
A declaration that the business will comply with all applicable laws and
regulations in the conduct of its business in New Hampshire; and
(g)
The signature of the principal owner or officer of the business.
Source. #6098, eff 10-1-95; amd
by #6717, eff 3-24-98, EXPIRED: 3-24-06
New. #9342, eff 12-9-08, EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New.
#12383, eff 9-16-17
Opt 304.02 Duties of Out of State Contact Lens
Dispensers.
(a)
Out of state contact lens dispensers shall comply with all applicable
requirements of RSA 327 and the rules adopted thereunder.
(b)
Out of state contact lens dispensers shall only accept prescriptions
from licensed optometrists and ophthalmologists who meet the requirements of Opt 502.02(q).
(c)
Out of state contact lens dispensers shall notify, in writing, the
optometrist who issued the prescription whenever that prescription is filled by
the out of state dispenser.
(d)
Facsimile copies of prescription forms shall be valid for use by out of
state contact lens dispensers pursuant to Opt 502.03(a)(4).
(e)
Out of state contact lens dispensers shall not sell contact lenses at
retail to anyone in New Hampshire unless they are in possession of a written
prescription which meets the requirements of Opt
502.02(q).
Source. #6098, eff 10-1-95; ss by #7670, eff 4-4-02,
EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
(formerly Opt 304.03)
PART Opt 305 FACILITATED
LICENSING FOR MILITARY SPOUSES
Opt
305.01 Licensing for Active Duty
Military Spouses.
(a)
Each applicant for licensure who is a military spouse pursuant to RSA
332-G:7, III shall apply to the board for licensure on an application for
licensure form as specified in Opt 301.02 and pay the
fee set forth in Opt 303.01.
(b)
Each applicant for facilitated licensing as a military spouse shall
provide a copy of the military member’s orders showing proof of active duty
status.
(c)
Each applicant who applies for facilitated licensing as a military
spouse shall be eligible to obtain a facilitated license if the military spouse
is licensed or registered in another state or jurisdiction, provided that the
other state’s or jurisdiction’s licensure or registration requirements are
consistent with RSA 327:6 and Opt 301.03 – Opt 301.06.
(d)
Verification of licensure and examination shall be obtained by the
candidate for licensure and submitted to the board directly from the verifying
state or jurisdiction for approval.
(e) A military spouse who obtains a facilitated
license shall comply with all license renewal requirements pursuant to Opt 401.03.
Source. #12383, eff 9-16-17
CHAPTER Opt 400 LICENSE
RENEWAL AND CONTINUING EDUCATION
PART Opt 401 LICENSE
RENEWAL
Opt
401.01 Expiration of License. A license shall automatically expire on July
1 every 2 years, unless prior to that time the board receives an
application for license renewal pursuant to this chapter.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
401.02 Renewal of License. On or before June 30 of each year in which a
license is due to expire, any licensee wishing to renew a license shall submit
the renewal application form supplied by the board along with the fee specified
by Opt 303.01 Table 303.1 and proof of completion of
continuing education.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt 401.03 Renewal Application.
(a)
Before May 1 of each year in which a license is due to expire, the board
shall mail to every optometrist licensed in the state a renewal application
pursuant to RSA 327:13.
(b)
The licensee shall file a renewal application form provided by the board
and tender the renewal fee specified by Opt 303.01
Table 303.1 Fee Schedule.
(c)
The licensee shall provide the following on or with the renewal
application form:
(1) Name of the optometrist who is renewing;
(2) Office address(es) and phone number(s) of the
optometrist who is renewing;
(3) A statement indicating whether the applicant
is actively practicing optometry;
(4) Home address of the optometrist who is
renewing;
(5) A statement that the information included in
the applicant's initial application has not changed except to the extent it has
been previously disclosed to the board or is disclosed and described in an
attachment to the renewal application;
(6) Whether the applicant has been the subject of
disciplinary action, or has been denied a license or surrendered a license in
any state or jurisdiction during the past 12 months; and
(7) Signature of applicant and date signed.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt 401.04 Reinstatement of License.
(a)
A licensee who fails to renew the license before July 1 of the year in
which the license expires may request reinstatement by the board.
(b)
If the license of an applicant applying for reinstatement of license has
been lapsed for more than 30 days, the applicant for reinstatement shall
provide on or with a “O.D. Reinstatement Application” form, effective August
2017, provided by the board:
(1) A completed reinstatement application
including the same information required in Opt
301.02(a)-(s) excluding Opt 301.02(c)-(g), (j) and
(o);
(2) Proof of completion of continuing education
which meets the requirements of Opt 402; and
(3) The fee for reinstatement as specified in Opt 303.01 Tabled 303.1 Fee Schedule.
(c)
Applicants for reinstatement of a revoked license shall have the burden
of persuading the board that the actions which were the basis for the original
disciplinary action have been satisfactorily remediated, that no additional
charges of misconduct are pending, and that the applicant meets all the
character and competency requirements of an applicant for initial licensure.
(d)
If the license of an applicant applying for reinstatement of license has
been lapsed for 30 days or less, the applicant shall only be required to submit
the following:
(1) The completed “O.D. 30 Day Reinstatement
Application” form, effective August 2017, including the same information
required in Opt 301.02(a)-(s) excluding (c)-(h),
(j)-(k) and (o);
(2) The payment of the reinstatement fee as
specified in Opt 303.01 Table 303.1 Fee Schedule;
and
(3) Proof of completion of continuing education
which meets the requirements of Opt 402.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7433, eff 1-25-01, EXPIRED: 1-25-09
New. #9558, eff 10-6-09; ss by #12383, eff 9-16-17
Opt
401.05 Denial of Renewal. The board shall deny an application for
renewal of a license, after providing notice to the applicant of the
opportunity to be heard, in the event that the board receives information which
is supported by the preponderance of the evidence that:
(a)
The applicant’s continuing competency has not been demonstrated as
required by Opt 402;
(b)
The applicant has failed to provide materially complete or materially
accurate information on the renewal application;
(c)
Discipline has been imposed under Opt 501.05
for any unethical act; or
(d)
Reasons exist for which an initial application could be denied under Opt 301.04.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
401.06 Renewal of Registration of Out
of State Contact Lens Dispensers.
(a)
Registration as an out of state contact lens dispenser shall expire on
June 30 of each year unless prior to that time the board has granted renewal of
the registration.
(b)
Any registrant wishing to renew a registration shall file the renewal
application form specified in Opt 401.07 on or before
June 30 of each year along with the fee specified in Opt
303.01.
(c)
Failure of a registrant to renew on or before June 30 shall cause the registration
to lapse. The registration shall not be
renewed and the business shall be required to apply for registration as
specified in Opt 304.01.
Source. #12383, eff 9-16-17 (formerly Opt 304.02)
Opt
401.07 Renewal Application for Out of
State Contact Lens Dispensers.
Applicants for renewal of an out of state contact lens dispenser
registration shall provide the following on a form supplied by the board:
(a)
Name and address of business;
(b)
Telephone number of business;
(c)
Signature of principal business owner; and
(d)
Any changes from the original application as identified in Opt 304.01.
Source. #12383, eff 9-16-17 (formerly Opt 304.04)
PART Opt 402 CONTINUING EDUCATION
Opt
402.01 Continuing Education Required.
(a)
All Therapeutic Pharmaceutical Agents (TPA) certified licensed
optometrists shall complete a minimum of 50 credit hours of approved continuing
education (CE) requirements every year, at least 20 credit hours of which shall
be in Class I, and the remainder of which shall be Class II. When accumulating Class I credit hours, 8 of
the 20 hours may be alternative CE, as defined in Opt
402.04(a)(2), and the balance shall come from formal CE, as defined in Opt 402.04(a)(1). An
optometrist with prescriptive authority to treat glaucoma shall complete 10 of
the required hours in glaucoma specific education, a minimum of 7 hours of
which shall be in Class I, and the remainder in Class II.
(b)
Class I credit hours shall be accumulated through participation in
formal courses and alternative CE that meet the requirements of Opt 402.04.
(c)
Class II credit hours shall be earned through independent study
documented as required by Opt 402.04.
(d)
Licensees who possesses a United States Drug Enforcement Administration
(DEA) number shall complete 3 hours of online continuing education or pass an
online examination in the area of pain management, addiction disorder, or
combination of both. The 3 hours shall
not count toward the 8 alternative CE requirements described in (a) above.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-20-03; amd by #9342, eff 12-9-08,
EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New.
#12383, eff 9-16-17; ss by #12778, eff
5-14-19; ss by #13848, eff 3-9-24
Opt
402.02 Continuing Education for
Non-TPA Certified Optometrists. All
non-TPA certified licensed optometrists shall complete 15 hours per year of
Class I credits each calendar year, 2 hours of which may be alternative CE, as
defined in Opt 402.04(a)(2) and the balance shall
come from formal course credit hours, as defined in Opt
402.04(a)(1).
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; ss by #9342, eff 12-9-08,
EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New. #12383, eff 9-16-17
Opt 402.03 Continuing Education Form.
(a) Continuing education shall be reported to the
board annually on or before April 1 on, as applicable, a “Continuing Education
Form”, effective August 2017, or an “Annual Audit Continuing Education Form”,
effective August 2017, provided by the board.
(b)
The licensee shall include the following information regarding
continuing education compliance:
(1) The name, home address, and business address of
the licensee;
(2) The license number;
(3) The course topic, dates of attendance and
number of hours approved for Class I continuing education;
(4) The course title, activity, dates of study, content
of study and number of hours of Class II continuing education; and
(5) The signature of the licensee certifying that
the hours of continuing education claimed on this form represent actual hours
spent in the pursuit of the stated educational goal.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-20-03, EXPIRED: 5-20-11
New. #10243, eff 12-18-12; ss by #12383, eff
9-16-17
Opt
402.04 Approved Continuing Education.
(a)
Class I continuing education credit hours shall be accumulated as
follows:
(1) “Formal CE” means
participation in workshops, seminars, conferences, courses, and related
facility based in-services, such as hospital rounds or its equivalent. Formal CE given by the American Academy of
Optometry, the American Optometric Association and any state or regional
affiliate, or any accredited college of optometry, medicine or pharmacy, or
approved by the Council on Optometric Practitioner Education (COPE), shall be
automatically approved as Class I; and
(2) “Alternative CE” means “non-live” CE and includes, but is not
limited to, internet, teleconferences and DVD education. The subject matter shall be acceptable for
Class I CE. Alternative CE shall be COPE
approved or provided by a college of optometry, medicine or osteopathy, or by
the American Academy of Optometry, the American Optometric Association or any
state or regional affiliate. Alternative
CE shall include an examination with a passing grade.
(b)
A course of practice management shall not be approved as Class I
continuing education for purposes of Opt 402.04(a).
(c)
Formal continuing education offered by sponsors other than those identified
in Opt 402.04(a)(1), above, shall be approved for
class I credit only if the board receives a letter from a licensee of the board
requesting such approval at least 45 days prior to the starting date of the
course which requests approval, and the board determines that the course is relevant
to the practice of optometry.
(d)
Requests for approval pursuant to (c) above shall be approved provided
that such requests contain the following information:
(1) A description of the sponsoring agency;
(2) The title, location and date of the course;
(3) A description of all subjects covered by the
course;
(4) The total hours of study involved in the
course and a breakdown of the time devoted to each of the subjects covered by
the course;
(5) The name(s) and professional qualifications of
the instructor(s);
(6) A statement that attendees who are present
for the entire course shall be given an attendance certificate for license
renewal purposes;
(7) A statement whether the course is approved by
a current accrediting agency or another state licensing board; and
(8) The course syllabus.
(e)
An approved course shall allow no more than 10 hours of credit for a
full day session.
(f)
An approved course shall include procedures for checking attendance at
each session, and shall provide persons who attend the entire course an
attendance certificate for license renewal purposes.
(g)
An approved course shall feature subjects, instructors, textbooks and
equipment which reflect a current level of optometric education and research.
(h) Class II continuing education hours shall be
accumulated through independent study, including optometric, medical and
pharmacy journals, textbooks, literature, and internet continuing education
courses.
(i) Practice management courses and study shall be
accepted as Class II continuing education but shall not exceed 3 hours in any
one year period.
(j)
CPR courses presented by the American Heart Association, American Red
Cross, National Safety Council, or American Safety and Health Institute
qualified instructor shall be automatically approved as Class I.
(k)
Independent study shall be verified by a statement of completion from
the entity providing the course of study or by a complete record of materials
including:
(1) The title and author of the material;
(2) The name and source of the material;
(3) The date the study was completed;
(4) The length of time required for completion;
and
(5) A summary of the content of study.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; amd
by #6797, eff 7-10-98, all but paragraph (d) EXPIRED: 6-17-00; amd by #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-20-03; ss by #9342, eff 12-9-08; amd
by #9801, eff 10-19-10; ss by #12108, INTERIM, eff 2-21-17, EXPIRED: 8-20-17
New. #12383, eff 9-16-17
Opt 402.05 Notification of Course Approval.
(a)
Upon approval of a continuing education course under Opt
402.04(d), the board shall issue the sponsoring organization a letter of
approval.
(b)
The letter of approval shall contain the following information:
(1) The title of the course;
(2) The date(s) the course is offered; and
(3) The number of continuing education hours
credited.
(c)
The licensee shall be responsible for ascertaining that board approval
has been given for each course for which he or she requests continuing
education credit under Opt 402. Credit shall not be given for unapproved
courses.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt 402.06 Proof of Attendance.
(a)
Each licensee shall establish his or her attendance at approved formal
continuing education courses by producing a certificate of attendance which, on
its face, states:
(1) The name, date and location of the course;
(2) The name of the sponsoring entity;
(3) The number of hours of credit given by the
course; and
(4) The name of the licensee.
(b)
Each licensee shall establish his or her attendance at approved
alternative CE by producing a certificate of participation which, on its face,
states:
(1) The name and date of the course;
(2) The name of the sponsoring entity and COPE
approval, if applicable;
(3) The number of hours of credit given by the
course and the passing grade; and
(4) The name of the licensee.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; ss by #9342, eff 12-9-08,
EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New. #12383, eff 9-16-17
Opt
402.07 Audit of Continuing Education. The board shall audit the documentation of
continuing education of any licensee if necessary to verify the accuracy of the
reported compliance.
Source. #6185, eff 2-16-96; ss by #7670, eff 4-4-02,
EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
PART Opt 403 MILITARY
STATUS OF LICENSEES
Opt 403.01 Active Duty Military Inactive Status.
(a)
The board shall place a licensee on inactive status pursuant to RSA
332-G:7, II upon receipt of:
(1) A written request; and
(2) Proof of active duty service in the Armed
Forces of the United States.
(b)
The board shall return an inactive licensee to active status upon
receipt of:
(1) Payment of the renewal fee;
(2) Proof of completion of the continuing
education requirements pursuant to Opt 402; and
(3) Proof that the licensee has not been
discharged from service in the Armed Forces of the United States for more than
one year.
Source. #12383, eff 9-16-17
CHAPTER Opt 500 ETHICAL STANDARDS
AND DISCIPLINARY MATTERS
PART Opt 501 DISCIPLINARY
MATTERS
Opt
501.01 Initiation of Action. The board shall undertake misconduct
investigations, settlements of misconduct allegations, or disciplinary hearings
in response to any information which reasonably suggests that a licensee has
engaged in professional misconduct.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
501.02 Action on Complaints and
Misconduct Allegations.
(a)
Upon receipt of a completed “Consumer Complaint Form”, effective August
2017, the board shall investigate the allegations contained therein as follows:
(1) Conduct an informal investigation pursuant to
Opt 212.01;
(2) Commence a formal investigation pursuant to Opt 212.02; or
(3) Commence an adjudicatory proceeding pursuant
to Opt 208.02 and Opt
501.04.
(b)
The board shall take final action on complaints in the manner provided
by Opt 207.02.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
501.03 Misconduct Investigations.
(a) The board shall conduct such investigations
as it deems necessary to investigate allegations of misconduct which come to
its attention through complaints or other means. Informal investigations
undertaken in accordance with the criteria set out in Opt
212.01 shall be conducted at any time and without prior order of the
board. The board shall convert an
informal investigation to a formal investigation at any time for the purposes
set forth in Opt 212.02 and according to the
procedures in Opt 212.02(b).
(b)
The board shall use the criteria set forth in Opt
212.02 in determining whether an investigation shall be informal or formal.
(c)
When a misconduct investigation occurs, an investigator designated by
the board shall contact such persons and examine such health care records and
other documents as are necessary to make a recommendation as to whether further
board action should be taken on the allegations in question.
(d)
Investigations, including those based upon allegations in a complaint,
or required by RSA 327:20 shall be conducted by a member of the board who shall
recuse himself from the adjudicatory hearing.
(e) In formal misconduct investigations the
investigator shall make a written report and recommendation to the board as to
whether there is a reasonable basis to conduct further disciplinary
proceedings. The board shall follow the
procedural requirement of Opt 208.02 in the event it
determines to commence a disciplinary hearing with respect to any investigation
or allegation of misconduct.
(f)
During an investigation, no disclosure of information gathered shall be
made if such disclosure would impair the investigation.
(g) After an investigation is
concluded, information gathered during the investigation shall be disclosed,
upon request, except to the extent exempted by RSA 91-A:5.
(h)
Not withstanding (g) above, information otherwise exempt under RSA
91-A:5 shall be disclosed pursuant to written authorization from the person
whose interests are protected by RSA 91-A:5.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-20-03, EXPIRED: 5-20-11
New. #10243, eff 12-18-12; ss by #12383, eff
9-16-17
Opt
501.04 Disciplinary Hearings.
(a)
Adjudicatory hearings of misconduct allegations shall be conducted in
accordance with Opt 208. The presiding officer, shall set forth the
particular scheduling and filing requirements applicable to each case and
include them in a hearing order, prehearing order, or other appropriate order
served upon the parties, including persons granted intervenor status pursuant
to Opt 208.04.
(b)
Misconduct allegations set forth in a hearing notice shall be amended as
necessary at any time prior to the issuance of a final order, provided,
however, that the parties shall receive at least 15 days
notice and an opportunity to be heard on any amended issues.
(c)
If ordered to do so by the presiding officer in connection with an
adjudicatory hearing commenced under Opt 200, the
licensee shall respond in writing to stated misconduct allegations by admitting
or denying each allegation within 30 days of such request.
(d)
The presiding officer, shall at any time during the course of a
disciplinary hearing, appoint an attorney from the department of justice to
prosecute misconduct allegations.
(e)
Prehearing conferences in disciplinary proceedings shall be open to the
public except to the extent settlement discussions or other matters entitled to
confidentiality pursuant to RSA 91-A are addressed.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
501.05 Disciplinary Sanctions.
(a)
Other than immediate license suspensions authorized by RSA 541-A:30, III
the board shall impose disciplinary sanctions only:
(1) After prior notice and an opportunity to be
heard; or,
(2) Pursuant to a mutually agreed upon settlement
or consent decree.
(b)
When the board receives notice that a licensee has been subjected to
disciplinary action related to professional misconduct by the licensing
authority of another jurisdiction as described in RSA 327:20, II(h), the board
shall issue an order directing the licensee to demonstrate why reciprocal
discipline should not be imposed in New Hampshire.
(c)
With respect to reciprocal discipline proceedings, the board shall
impose license restrictions, such as suspension or revocation, similar to one
issued in another jurisdiction.
(d)
After a finding that misconduct has occurred and in order to protect
public health and safety and deter future misconduct, the board shall impose
one or more of the disciplinary sanctions authorized by RSA 327:20, III after
considering the presence of aggravating or mitigating circumstances.
(e)
The following shall be considered aggravating circumstances:
(1) The seriousness of the offense;
(2) The licensee's prior disciplinary record;
(3) The licensee knew his or her actions
constitute an offense;
(4) The licensee's lack of willingness to
cooperate with the board; and
(5) The potential harm to public health and
safety.
(f)
The following shall be considered mitigating circumstances:
(1) The absence of a prior disciplinary record;
(2) The licensee's lack of intent to commit an offense;
(3) The licensee's acknowledgement of his or her
wrongdoing; and
(4) The licensee's willingness to cooperate with
the board.
(g)
When the board receives information indicating that a licensee has
engaged in or is likely to engage in professional misconduct which poses an
immediate danger to life or health, the board shall issue an order pursuant to
RSA 541-A:30, III which sets forth the alleged misconduct and immediately
suspends the license for up to 10 days pending completion of an adjudicatory
proceeding on the specified issues.
(h)
Suspension orders under Opt 501.05(g) shall
set forth the procedures to be followed by the licensee in order to avail him
or herself of the opportunity to be heard.
(i) No hearing date established in a proceeding
conducted under Opt 501.05(g) shall be postponed at
the request of the licensee unless the licensee also agrees to continue the
suspension period pending issuance of the board's final decision.
(j)
Copies of board orders imposing disciplinary sanctions and copies of all
settlement agreements or consent decrees shall be considered public information
under RSA 91-A. The board shall make
copies of such orders, agreements and decrees available to law enforcement
agencies and optometry boards of other jurisdictions. In addition, pursuant to arrangements with
the National Practitioners Data Bank (NPDB), copies of such orders, agreements
and decrees shall be made available for purposes of assuring that licensing agencies
in other jurisdictions are aware of disciplinary action taken against a
licensee in this state.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-20-03, EXPIRED: 5-20-12
New. #10243, eff 12-18-12; ss by #12383, eff
9-16-17
PART Opt 502 ETHICAL
STANDARDS
Opt
502.01 Obligation to Obey.
(a)
The ethical standards set forth in this part shall bind all licensees
and out of state contact lens dispensers.
(b)
Violation of any standard set forth in this part shall constitute
unprofessional conduct pursuant to RSA 327:20, II(c).
(c)
Conduct proscribed by these ethical standards, when performed by a licensee,
shall be a basis for initiating disciplinary proceedings as set out in Opt 200 and Opt 501.03.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; ss by #6717, eff 3-24-98; ss
by #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
Opt
502.02 Standards of Conduct. A licensee shall:
(a)
Submit only truthful and correct information in any application or other
document filed with or statement made to the board;
(b)
Inform the board of a principal business address to which all official
board communications should be directed, and also of all addresses where she or
he is practicing. Licensees shall notify the board of a business address
establishment or change, or abandonment of a business address with 30 days of
such establishment, change or abandonment;
(c)
Make available at the request of any patient a card which bears the
following printed information:
"Complaints
concerning Optometrists shall be sent to the N.H. Board of Registration in
Optometry, 2 Industrial Park Drive, Concord, NH 03301”;
(d)
Refrain from revealing information acquired in the course of treating a
patient unless the patient consents to the release of the information or the
release is ordered by a court or other official body with authority to acquire
such information;
(e)
Not terminate a doctor/patient relationship without 60 days notice, without making arrangements for referral, or
when other circumstances exist which could be expected to jeopardize the health
or welfare of the patient. However, a
licensee shall have no obligation to accept a particular patient or to continue
treating a particular patient when discontinuance would not jeopardize the
patient's health or welfare;
(f)
Accommodate patient requests for a consultation by another practitioner,
even if the licensee does not believe such a consultation is necessary;
(g)
Maintain absolute honesty in all dealings with patients, and neither
knowingly exaggerate nor minimize the gravity of the patient's condition or the
chances of recovery;
(h)
Provide each patient with the highest degree of skill and care of which
he or she is capable, and otherwise maintain the health and welfare of the
patient as the paramount objective of his or her practice. Towards this end, the licensee shall
continually endeavor to improve his or her skill and knowledge in the field of
optometry, keep abreast of new developments in the field, and offer the same
good quality of care to each patient the licensee undertakes to treat,
regardless of the level of remuneration the patient can provide;
(i) Report persons who attempt to practice
optometry without a license or otherwise violate the laws or regulations
pertaining to the practice of optometry in New Hampshire;
(j)
Make no false statement concerning another optometrist's abilities or
method of practice;
(k)
Provide an itemized, clearly understandable statement of professional
charges to all patients;
(l)
Not charge or attempt to charge, through the submission of duplicate
invoices or any other scheme or device, any amount in excess of the fee agreed
to in advance with the patient for any professional service rendered to that
patient;
(m)
Not engage in bait and switch advertising;
(n)
Not advertise any service as free unless the advertisement in question
clearly reveals all services which will be or can be performed at the time of
the anticipated office visit, and specifically states, as to each such service,
whether it will be free, or, if not, the exact amount which shall be charged
for it;
(o)
Maintain complete and accurate clinical and business records pertaining
to each patient seen for a minimum of 7 years following the last activity on
the account;
(p)
Promptly, and in all cases within 10 business days, furnish complete and
accurate copies of patient records, or in appropriate circumstances, original
patient records, upon the patient's request;
(q)
Provide a copy of a written prescription for replacement contact lenses
to any patient who has met the requirements of RSA 327:25-a. The prescription shall be written on a formal
prescription blank with the name and address of the prescribing optometrists or
ophthalmologist printed on its face;
(r)
Utilize pharmaceutical agents for diagnostic or treatment purposes only
if the licensee has met the requirements of RSA 327:6-a;
(s)
Utilize only those pharmaceutical agents permitted by RSA 327:1 or those
agents approved by the former joint pharmaceutical formulary board or those
agents approved by the joint pharmaceutical formulary and credentialing
committee as authorized by RSA 327:6-b;
(t)
Utilize pharmaceutical agents for the treatment of glaucoma provided
that the licensee has met the requirements of RSA 327:6-c, I(b) and indicates
on the licensee's prescription pad "glaucoma prescription authority
granted"; and
(u)
Comply with the following when describing the licensee’s optometric
practice:
(1) A licensee may designate himself or herself
as an O.D., optometrist, or Doctor of Optometry, but shall
not use the terms “optometric physician” or “medical optometrist;”
(2) A licensee may:
a. Designate himself or herself as having areas
of interest; and
b. Use phrases such as “practice limited to
contact lenses” or “practice provides care in the following areas:”;
(3) When designating himself or herself as having
areas of interest pursuant to (2) above, a licensee shall not:
a. List specialties or board certification in a
specific area of interest; or
b. Use terms such as:
1. “Therapeutic optometrist;”
2. “Optometric glaucoma specialist;” or
3. “Practice specializing in contact lenses;”
and
(4) A licensee may designate himself or herself
as having membership, fellowship or diplomat status from nationally recognized
certifying bodies such as the College of Optometrists in Vision Development
(COVD) or the American Academy of Optometry (FAAO), but shall not imply that he
or she is “board certified.”
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94; amd
by #6098, eff 10-1-95; amd by #6185, eff 2-16-96, all
but paragraphs (q), (r) & (s) EXPIRED: 6-17-00; amd
by #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; amd
by #7889, eff 5-19-03; amd by #9342, eff 12-9-08,
EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New. #12383, eff
9-16-17
Opt
502.03 Standards of Conduct for Out
of State Contact Lens Dispensers. An
out of state contact lens dispenser shall:
(a)
Not sell, provide, dispense or furnish contacts lenses to recipients
located in this state unless holding a current permit issued by the board;
(b)
Submit only truthful and accurate information in any application or
other document filed with the board;
(c)
Comply with all applicable federal, state and local laws;
(d)
Furnish contact lenses only upon receipt of a current, valid and
unexpired prescription, which shall be originally written, a facsimile or other
written electronic transmission specifically noted for contact lenses and
contains the patient’s name, the date and signed by the prescribing
professional or verified by direct communication pursuant to federal and state
law;
(e)
Not substitute any parameters unless the prescription specifically makes
allowances for such substitutions or the same contact lens is manufactured by
the same company and sold under multiple labels to individual providers. The seller may fill the prescription with a
contact lens manufactured by that company under another label;
(f)
Not exceed the number of refills noted on the prescription or communicated
to the seller during the verification process;
(g)
Maintain absolute honesty in all dealings with patients;
(h)
Provide an itemized and clearly understandable statement of all charges
to the patient with each transaction;
(i) Refrain from “bait and switch” advertising;
(j)
Maintain complete and accurate records of prescriptions and business
transactions for each consumer for a period of at least 7 years; and
(k)
Promptly, and in all cases within 10 business days, furnish complete and
accurate copies of patient prescriptions and account records to the board upon
its request.
Source. #6717, eff 3-24-98, EXPIRED: 3-24-06
New. #9342, eff 12-9-08, EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New. #12383, eff 9-16-17
PART Opt 503 INACTIVE
LICENSE AND DISCIPLINARY ACTIONS
Opt
503.01 Effect of Inactive License on
Disciplinary Actions.
(a)
A licensee may surrender an active license by providing written notice
to the board of such conversion.
(b)
Surrender or non-renewal of a license shall not preclude the board from
investigating or completing a disciplinary proceeding based upon the licensee's
professional conduct while the license was still in effect. Such investigations
and proceedings shall be handled in the same manner as other disciplinary
investigations and proceedings.
(c)
A licensee who surrenders a license shall have no right or privilege to
practice in New Hampshire. A licensee who reapplies for licensure in New
Hampshire after electing to surrender his or her license shall meet all of the
requirements then in effect for new applicants.
(d)
A licensee who wishes to surrender his or her license as part of a
settlement of pending misconduct allegations shall make a written settlement
offer to the board before the close of the record in a disciplinary hearing.
(e)
Any settlement agreement reached under (d), above, shall include the
following concessions:
(1) That license surrender has occurred in settlement
of pending disciplinary charges;
(2) That all or some specifically identified part
of the material facts pertaining to the charges are true; and
(3) That the pending disciplinary allegations
shall be issues to be resolved in any future application the licensee submits
in New Hampshire.
(f)
The fact of license surrender and the terms of any settlement agreement
pertaining thereto shall be distributed to all relevant licensing authorities
and professional societies in the same manner as a final decision containing a
specific finding of professional misconduct pursuant to Opt
501.05(f).
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02, EXPIRED: 4-4-10
New. #9756, eff 7-20-10; ss by #12383, eff 9-16-17
PART Opt 504 OPIOID
PRESCRIBING
Opt
504.01 Applicability. This part shall apply to the prescribing of
opioids for the management or treatment of non-cancer and non-terminal pain,
and shall not apply to the supervised administration of opioids in a health
care setting.
Source. #12060, eff 1-1-17
Opt
504.02 Noncompliance with Standards
as Unprofessional Conduct. The
ethical standards set forth in this part shall bind all licensees, and
noncompliance with these standards shall constitute unprofessional conduct as
used in NH RSA 327:20, II (c). The board
shall investigate violations of these standards and impose disciplinary
sanctions for such violations by following the disciplinary procedures set forth
in Opt 501.
Source. #12060, eff 1-1-17
Opt
504.03 Definitions. Except where the context makes another
meaning manifest, the following words have the meanings indicated when used in
this chapter:
(a) “Acute pain” means the normal, predicted
physiological response to a noxious chemical, thermal or mechanical stimulus
and typically is associated with invasive procedures, trauma and disease. It is generally time-limited, often less than
3 months in duration;
(b) “Administer” means an act whereby a single
dose of a drug is instilled into the body of, applied to the body of, or
otherwise given to a person for immediate consumption or use;
(c) “Addiction” means a primary, chronic, neurobiologic disease with genetic, psychosocial, and
environmental factors influencing its development and manifestations. It is characterized by behaviors that include
impaired control over drug use, craving, compulsive use, or continued use
despite harm. The term does not include
physical dependence and tolerance, which are normal physiological consequences
of extended opioid therapy for pain;
(d) “Chronic pain” means a state in which
non-cancer pain persists beyond the usual course of an acute disease or healing
of an injury, or that may or may not be associated with an acute or chronic
pathologic process that causes continuous or intermittent pain over months or
years. For the purposes of these rules,
chronic pain does not include pain from cancer or terminal care;
(e) “Clinical coverage” means specified and prearranged
coverage that is available 24 hours a day, 7 days a week, to assist in the
management of patients with chronic pain;
(f) “Dose unit” means one pill, one capsule, one
patch, or one liquid dose;
(g) “Medication-assisted
treatment” means any treatment of opioid addiction that includes a medication,
such as methadone, buprenorphine, or naltrexone, that is approved by the FDA
for opioid detoxification or maintenance treatment;
(h) “Morphine equivalent dose (MED)” means a
conversion of various opioids to a morphine equivalent dose by the use of
accepted conversion tables;
(i) “Prescription”
means a verbal, written, facsimile, or electronically transmitted order for
medications for self-administration by an individual patient;
(j) “Risk assessment” means a process for
predicting a patient’s likelihood of misusing or abusing opioids in order to
develop and document a level of monitoring for that patient;
(k) “Treatment
agreement” means a written agreement that outlines the joint responsibilities
of physician and patient; and
(l) “Treatment plan” means a written plan that
reflects the particular benefits and risks of opioid use for each individual
patient and establishes goals,
expectations, methods, and time
course for treatment.
Source. #12060, eff 1-1-17
Opt
504.04 Acute Pain. If opioids are indicated and clinically
appropriate for prescription for acute pain, prescribing licensees shall:
(a) Conduct and document a physical examination
and history;
(b) Consider the patient’s risk for opioid
misuse, abuse, or diversion and prescribe for the lowest effective dose for a
limited duration;
(c) Document the prescription and rationale for
all opioids;
(d) Ensure that the patient has been provided
information that contains the following:
(1) Risk of side effects,
including addiction and overdose resulting in death;
(2) Risks of keeping unused
medication;
(3) Options for safely securing
and disposing of unused medication; and
(4) Danger in operating motor
vehicle or heavy machinery;
(e) Comply with all federal and state controlled
substances laws, rules, and regulations;
(f) Complete a board-approved risk assessment
tool, such as the Screener and Opioid Assessment for Patients with Pain
(SOAPP);
(g) Document an appropriate pain treatment plan
and consideration of non-pharmacological modalities and non-opioid therapy;
(h) Utilize a written informed consent that
explains the following risks associated with opioids:
(1) Addiction;
(2) Overdose and death;
(3) Physical dependence;
(4) Physical side effects;
(5) Hyperalgesia;
(6) Tolerance; and
(7) Crime victimization;
(i) In an emergency department, urgent care
setting, or walk-in clinic:
(1) Not prescribe more than the
minimum amount of opioids medically necessary to treat the patient’s medical
condition. In most cases, an opioid prescription of 3 or fewer days is
sufficient, but a licensee shall not prescribe for more than 7 days; and
(2) If prescribing an opioid
for acute pain that exceeds a board-approved limit, document the medical
condition and appropriate clinical rationale in the patient’s medical record;
and
(j) Not be obligated to prescribe opioids for
more than 30 days, but if opioids are indicated and appropriate for persistent,
unresolved acute pain that extends beyond a period of 30 days, the licensee
shall conduct an in-office follow-up with the patient prior to issuing a new
opioid prescription.
Source. #12060, eff 1-1-17
Opt
504.05 Chronic Pain. If opioids are indicated and clinically
appropriate for prescription for chronic pain, prescribing licensees shall:
(a) Conduct and document a history and physical
examination;
(b) Conduct and document a risk assessment
including, but not limited to, the use of an evidence based screening tool such
as the Screener and Opioid Assessment for Patients with Pain (SOAPP);
(c) Document the prescription and rationale for
all opioids;
(d) Prescribe the lowest effective dose for a limited
duration;
(e) Comply with all federal and state controlled
substances laws, rules, and regulations;
(f) Utilize a written informed consent that
explains the following risks associated with opioids:
(1) Addiction;
(2) Overdose and death;
(3) Physical dependence;
(4) Physical side effects;
(5) Hyperalgesia;
(6) Tolerance; and
(7) Crime victimization;
(g) Create and discuss a treatment plan with the
patient. This shall include, but not be
limited to the goals of treatment, in terms of pain management, restoration of
function, safety, time course for treatment, and consideration of
non-pharmacological modalities and non-opioid therapy. Informed consent
documents and treatment agreements may be part of one document for the sake of
convenience;
(h) Utilize a written treatment agreement that is
included in the medical record, and specifies conduct that triggers the
discontinuation or tapering of opioids;
(i) The treatment agreement shall also address,
at a minimum, the following:
(1) The
requirement for safe medication use and
storage;
(2) The requirement of
obtaining opioids from only one prescriber or practice;
(3) The consent to periodic and
random drug testing; and
(4) The prescriber’s
responsibility to be available or to have clinical coverage available;
(j)
Document the consideration of a consultation with an appropriate
specialist in the following circumstances:
(1) When the patient receives a
100 mg morphine equivalent dose for longer than 90 days;
(2) When a patient is at high
risk for abuse or addiction; or
(3) When a patient has a
co-morbid psychiatric disorder;
(k) Reevaluate treatment plan and use of opioids
at least twice a year;
(l) Require random and periodic urine
drug testing at least annually for all patients using opioids for longer than
90 days. Unanticipated findings shall be
addressed in a manner that supports the health of the patient; and
(m) Have clinical coverage available for 24 hours
per day, 7 days per week, to assist in the management of patients; and
(n) The prescriber may forego the requirements
for a written treatment agreement and for periodic drug testing for patients:
(1) Who are residents in a
long-term, nonrehabilitative nursing home facility
where medications are administered by licensed staff; or
(2) Who are being treated for
episodic intermittent pain and receiving no more than 50 dose units of opioids
in a 3 month period.
Source. #12060, eff 1-1-17
Opt
504.06 Prescription Drug Monitoring
Program.
(a) Prescribers required to register with the prescription
drug monitoring program, or their delegate, shall query the prescription drug
monitoring program to obtain a history of schedule II-IV controlled substances
dispensed to a patient, prior to prescribing an initial schedule II, III, and
IV opioids for the management or treatment of pain and then periodically and at
least twice per year, except when:
(1) Controlled medications are
to be administered to patients in a health care setting;
(2) The program is inaccessible or not functioning properly, due to an
internal or external electronic issue; or
(3) An emergency department is experiencing a higher than normal
patient volume such that querying the program database would materially delay
care.
(b) A licensee shall document the exceptions described in (a)(2) and (3)
above in the patient’s medical record.
Source. #12060, eff 1-1-17; ss by #13848, eff 3-9-24
Opt
504.07 Medication Assisted Treatment. Licensees who prescribe medication assisted
treatment shall adhere to the principles outlined in the American Society of
Addiction Medicine’s National Practice Guideline For the Use of Medications in
the Treatment of Addiction Involving Opioid Use (2015) found at http://www.asam.org/quality-practice/guidelines-and-consensus-documents/npg/complete-guideline as cited in Appendix II.
Source. #12060, eff 1-1-17
CHAPTER
Opt 600
PROFESSIONAL STANDARDS
PART
Opt 601
FOLLOW-UP CARE
Opt 601.01 Contact Lens Follow-Up Care. It shall be the responsibility of the
optometrist, when fitting a patient with contact lenses of any type, to provide
written instructions detailing proper short-term and long-term care, and to
schedule the patient for a minimum of 2 visits within 90 days following the
initial fitting. To ensure safe adaptation and eye health when dispensing
contact lenses, it shall be the responsibility of the optometrist to verify the
fit and power of the initial lens on the patient's eye.
Source. (See Revision Note at part heading for Opt 100) #5839, eff 6-17-94, EXPIRED: 6-17-00
New. #7370, INTERIM, eff 9-30-00, EXPIRED: 3-29-01
New. #7670, eff 4-4-02; ss by #9342, eff 12-9-08,
EXPIRED: 12-9-16
New. #12108, INTERIM, eff 2-21-17, EXPIRED:
8-20-17
New. #12383, eff 9-16-17
APPENDIX A - Statutes Implemented
Rule |
Specific State Statute the Rule
Implements |
|
|
Opt 101.01 |
RSA
327:1; 327:2; 327:4; 327:5 |
Opt
102.01(a) |
RSA
541-A:7 |
Opt
102.01(b) |
RSA
327:2 |
Opt
102.01(c), (d), (e), (g) and (h) |
RSA
541-A:7 |
Opt
102.01(f) |
RSA
327:1, III |
Opt
102.01(i) |
RSA
541-A:7; 327:6-c |
Opt 103.01 |
RSA
327:2 |
Opt 103.02
- 103.03 |
RSA
541-A:16, I(a) |
Opt 104 |
RSA
541-A:16, I(a) |
Opt 105.02
- 105.03 |
RSA
327:2; 541-A:16, I(a) |
Opt 106 |
RSA
541-A:16, I(a) |
|
|
Opt
201-209 |
RSA
327:20; 327:21; 327:22, RSA 541-A:16, I(b)(2), RSA
541-A:30-a, I |
Opt 210 |
RSA
327:22, II |
Opt 211 |
RSA
541-A:16, I(c) |
Opt 212 |
RSA
541-A:22, IV |
Opt 213 |
RSA
541-A:16, I(d) |
Opt 216 |
RSA
541-A:16, I(b) intro.; RSA 541-A:22, IV |
Opt 217 |
RSA
541-A:11, VII |
|
|
Opt 301.01 |
RSA
327:6; RSA 327:31, I |
Opt 301.02 |
RSA
327:6; RSA 327:31, I |
Opt 301.03 |
RSA
327:6; RSA 327:31, II |
Opt 301.04 |
RSA
327:6; RSA 327:31, II |
Opt 301.05 |
RSA
327:6; RSA 327:31, III |
Opt 301.06 |
RSA
327:6; RSA 327:31, III |
Opt 301.07 |
RSA
327:6; RSA 327:31, III |
Opt 301.08 |
RSA
327:6; RSA 327:6-a; RSA 327:31, II-III |
Opt 301.09 |
RSA
327:6; RSA 327:6-a; RSA 327:31, I |
|
|
Opt 302.01 |
RSA
327:6; RSA 327:31, I |
Opt 302.02 |
RSA
327:6; RSA 327:31, II |
Opt 302.03 |
RSA
327:6; RSA 327:31, III |
Opt 302.04 |
RSA
327:6; RSA 327:31, I |
Opt 303.01 |
RSA
327:5-a; RSA 327:6; RSA 327:13; RSA 327:31, VI |
Opt 304.01 |
RSA
327:25-a, IV; RSA 327:31, I |
Opt 304.02 |
RSA
327:25-a, IV; RSA 327:31, IV |
Opt 305.01 |
RSA
541-A:16, I (b) intro.; RSA 332-G:7, IV (c) |
|
|
Opt 401.01 |
RSA
327:13, I; RSA 327:31, IV |
Opt 401.02 |
RSA
327:13, II; RSA 327:31, IV |
Opt 401.03 |
RSA
327:13, II; RSA 327:31, IV |
Opt 401.04 |
RSA
327:13-a; RSA 327:31, IV |
Opt 401.05 |
RSA
327:31, IV |
Opt 401.06 |
RSA
327:25-a, IV; RSA 327:31, IV |
Opt 401.07 |
RSA
327:13, I; RSA 327:25-a, IV(c); RSA 327:31, IV |
|
|
Opt 402.01 |
RSA 327:31, V;
RSA 327:33; RSA 327:33-a |
Opt
402.01(a)&(b), |
RSA
327:33, 327:33-a, 327:31, VII |
Opt 402.02 |
RSA
327:31, VII; RSA 327:33 |
Opt 402.03 |
RSA
327:31, IV, VII |
Opt 402.04 |
RSA
327:31, VII; RSA 327:33; RSA 327:33-a |
Opt 402.05 |
RSA
327:31, VII; RSA 327:33; RSA 327:33-a; RSA 541-A:16, I (b) intro. |
Opt 402.06 |
RSA
327:31, VII; RSA 327:33; RSA 327:33-a |
Opt 402.07 |
RSA
327:31, VII; RSA 327:33; RSA 327:33-a; RSA 541-A:16, I (b) intro. |
|
|
Opt 403 |
RSA
541-A:16, I (b) intro.; RSA 332-G:7, IV(b) |
|
|
Opt 501.01 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt 501.02 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt 501.03 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt 501.04 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt 501.05 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
|
|
Opt 502.01 |
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt 502.02
|
RSA
327:20; RSA 327:21; RSA 327:22; RSA 327:27; RSA 327:31, V |
Opt
502.01, 502.02 (a)-(s) |
RSA
327:31, V; 327:20, II(c) |
Opt 502.02
intro & (u) |
RSA
327:31, V, 327:20 |
Opt 502.02
(a)-(t) |
RSA
327:31, V; 327:20, II(c) |
Opt 502.03 |
RSA
327:25-a; RSA 327:31, V |
Opt 503 |
RSA
327:13-a; 327:31, V |
Opt 504 |
RSA
327:31, V, X |
Opt 504.06 |
RSA 327:31, IV
and VIII |
|
|
Opt 601 |
RSA
327:31, V |
APPENDIX B - Incorporation By Reference Information
Opt 504.07 |
The American Society of Addiction Medicine’s
“National Practice Guideline For the Use of Medications in the Treatment of
Addiction Involving Opioid Use,” adopted on June 1, 2015. |
No cost to
download from: http://www.asam.org/quality-practice/guidelines-and-consensus-documents/npg/complete-guideline |