(1) The term unprofessional conduct, as used in this article 275, means:
(a) Deceiving or attempting to deceive the board or its agents with reference to any proper matter under investigation by the board;
(b) Publishing or circulating, directly or indirectly, any fraudulent, false, deceitful, or misleading claims or statements relating to optometry services or ophthalmic materials or devices;
(c) Employing or offering compensation or merchandise of value to any salesperson, runner, patient, or other person as an inducement to secure his or her services or assistance in the solicitation of patronage for the performing, rendering, supplying, or selling of optometry services or ophthalmic materials or devices;
(d) Resorting to fraud, misrepresentation, or deception in applying for, securing, renewing, or seeking reinstatement of a license or in taking any examination provided for in this article 275;
(e) The habitual or excessive use or abuse of alcohol, a habit-forming drug, or any controlled substance as defined in section 18-18-102 (5);
(f) Disobeying the lawful rule or order of the board or its officers;
(g) Practicing optometry while one's license is suspended;
(h) Practicing optometry as the partner, agent, or employee of or in joint venture or arrangement with any proprietor or with any person who does not hold a license to practice optometry within this state, except as permitted in section 12-275-124. Any licensee holding a license to practice optometry in this state may accept employment from any person, partnership, association, or corporation to examine and prescribe for the employees of the person, partnership, association, or corporation.
(i) An act or omission constituting grossly negligent optometry practice or two or more acts or omissions that fail to meet generally accepted standards of optometry practice;
(j) Sharing any professional fees with any person, partnership, or corporation that sends or refers patients to him or her, except with licensed optometrists with whom he or she may be associated in practice;
(k) Failing to:
(I) Notify the board, in a manner and within a period determined by the board, of a physical illness, physical condition, or behavioral, mental health, or substance use disorder that renders an optometrist unable to treat with reasonable skill and safety or that may endanger the health and safety of persons under the optometrist's care;
(II) Act within the limitations created by a physical illness, physical condition, or behavioral, mental health, or substance use disorder that renders an optometrist unable to treat with reasonable skill and safety or that may endanger the health and safety of persons under the optometrist's care; or
(III) Practice within the limitations created by the physical illness, physical condition, or behavioral, mental health, or substance use disorder as specified in a confidential agreement between the optometrist and the board entered into pursuant to sections 12-30-108 and 12-275-121 (5);
(l) Failing to refer a patient to the appropriate health-care practitioner when the services required by the patient are beyond the scope of competency of the optometrist or the scope of practice of optometry;
(m) Aiding or abetting, in the practice of optometry, any person not licensed to practice optometry as defined under this article 275 or any person whose license to practice is suspended;
(n) Interfering with the free choice of any person selecting a physician or other health-care practitioner;
(o) Any disciplinary action against a licensee to practice optometry in another state or country, which action shall be deemed to be prima facie evidence of unprofessional conduct if the grounds for the disciplinary action would be unprofessional conduct or otherwise constitute a violation of any provision of this article 275;
(p) Failing to notify the board of a malpractice final judgment or settlement within thirty days;
(q) Any act or omission that fails to meet generally accepted standards of care whether or not actual injury to a patient is established;
(r) Conviction of a felony or the acceptance of a plea of guilty or nolo contendere, or a plea resulting in a deferred sentence to a felony;
(s) Representing that a noncorrectable condition can be permanently corrected;
(t) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of optometry, including falsifying or making incorrect essential entries or failing to make essential entries on patient records;
(u) Conduct that is likely to deceive or defraud the public;
(v) Negligent malpractice;
(w) (I) Violation of abuse of health insurance pursuant to section 18-13-119; or
(II) Advertising through newspapers, magazines, circulars, direct mail, directories, radio, television, or otherwise that the licensee will perform any act prohibited by section 18-13-119 (3);
(x) Administering, dispensing, or prescribing any prescription drug, as defined in section 12-280-103 (42), or any controlled substance, as defined in section 18-18-102 (5), other than in the course of legitimate professional practice;
(y) Engaging in any of the following activities and practices:
(I) Repeatedly ordering or performing demonstrably unnecessary laboratory tests or studies that lack clinical justification;
(II) Administering treatment that is demonstrably unnecessary and lacks clinical justification; or
(III) Ordering or performing any service, X ray, or treatment that is contrary to recognized standards of the practice of optometry, as interpreted by the board, and lacks clinical justification;
(z) Committing a fraudulent insurance act, as defined in section 10-1-128;
(aa) Failing to report to the board any optometrist known to have violated or, upon information or belief, believed to have violated any of the provisions of this article 275;
(bb) Failing to report to the board any surrender of a license to, or any adverse action taken against a licensee by another licensing agency in another state, territory, or country, any governmental agency, any law enforcement agency, or any court for acts of conduct that would constitute grounds for discipline under the provisions of this article 275;
(cc) Engaging in a sexual act with a patient while a patient-optometrist relationship exists. For the purposes of this subsection (1)(cc):
(I) Patient-optometrist relationship means that period of time beginning with the initial evaluation through the termination of treatment; and
(II) Sexual act means sexual contact, sexual intrusion, or sexual penetration as defined in section 18-3-401.
(dd) Failing to provide a patient with copies of patient medical records as required by section 25-1-802;
(ee) Failing to provide a patient with a valid written contact lens prescription as required by section 12-275-119 (3);
(ff) A violation of any provision of this article 275 or an applicable provision of article 20 or 30 of this title 12;
(gg) Practicing beyond the scope of education and training prescribed by rules adopted by the board;
(hh) Failing to respond in an honest, materially responsive, and timely manner to a complaint pursuant to section 12-275-122 (1)(b).
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1421, � 1, effective October 1.
Editor's note: This section is similar to former � 12-40-118 as it existed prior to 2019.
Cross references: For an exception to the provisions of subsection (1)(h), see � 6-18-303.
12-275-121. Mental and physical examination of licensees - confidential agreements to limit practice. (1) If the board has reasonable cause to believe that a licensee is unable to practice with reasonable skill and safety, the board may require the licensee to submit to a mental or physical examination by a physician or qualified health-care provider designated by the board. If the licensee refuses to undergo a mental or physical examination, unless due to circumstances beyond the licensee's control, the board may suspend the licensee's license until an examination has occurred, the results of the examination are known, and the board has made a determination of the licensee's fitness to practice. The board shall proceed with the order for examination and the determination in a timely manner.
(2) An order to a licensee pursuant to subsection (1) of this section to undergo a mental or physical examination shall contain the basis of the board's reasonable cause to believe that the licensee is unable to practice with reasonable skill and safety. For the purposes of any disciplinary proceeding authorized under this article 275, the licensee shall be deemed to have waived all objections to the admissibility of the examining physician's testimony or examination reports on the ground that they are privileged communications.
(3) The licensee may submit to the board testimony or examination reports from a physician chosen by the licensee and pertaining to any condition that the board has alleged may preclude the licensee from practicing with reasonable skill and safety. These may be considered by the board in conjunction with, but not in lieu of, testimony and examination reports of the physician designated by the board.
(4) The results of any mental or physical examination ordered by the board shall not be used as evidence in any proceeding other than one before the board and shall not be deemed public records nor made available to the public.
(5) (a) The board may enter into an agreement in accordance with section 12-30-108 with an optometrist whose practice is or may be affected by a physical illness, physical condition, or behavioral or mental health disorder that renders the optometrist unable to treat with reasonable skill and safety or that may endanger the health and safety of persons under the care of the optometrist if:
(I) The board believes that one or more limitations of the optometrist's practice would both enable the optometrist to treat with reasonable skill and safety and would protect the health and safety of persons under the care of the optometrist; and
(II) The optometrist enters into an enforceable agreement with the board to so limit the optometrist's practice.
(b) An agreement entered into pursuant to this subsection (5) is confidential and not subject to disclosure pursuant to the Colorado Open Records Act, part 2 of article 72 of title 24, and may include provisions for monitoring and reevaluation of the optometrist.
(c) For purposes of this subsection (5), physical illness, physical condition, or behavioral or mental health disorder does not include the habitual or excessive use or abuse of alcohol, a habit-forming drug, or any controlled substance as defined in section 18-18-102 (5).
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1424, � 1, effective October 1.
Editor's note: This section is similar to former � 12-40-118.5 as it existed prior to 2019.
12-275-122. Discipline - procedure - professional review - immunity - reconsideration and review of action by board - rules. (1) (a) With respect to licenses issued pursuant to this article 275, the board may:
(I) Impose probation, with or without supervision, on a licensee, or take disciplinary or other action as authorized in section 12-20-404, for any reason stated in section 12-275-120 or for violating any term of probation of the board;
(II) Summarily suspend a license upon the failure of the licensee to comply with any condition of a stipulation or order imposed by the board until the licensee complies with the condition, unless compliance is beyond the control of the licensee; and
(III) Impose a fine not to exceed five thousand dollars on a licensee for a violation of this article 275 or a rule promulgated pursuant to this article 275 other than a violation related to a standard of practice. The board shall, by rule, promulgate a fining schedule with lesser amounts for first violations and increasing amounts for subsequent violations of this subsection (1)(a)(III).
(b) Upon its own motion or upon a signed complaint, an investigation may be made if there is reasonable cause to believe that an optometrist licensed by the board has committed an act of unprofessional conduct pursuant to section 12-275-120 or, while under probation, has violated the terms of the probation.
(c) If a licensee requests a hearing to dispute formal board action or if the board finds such probability great and a hearing is conducted, the hearing shall be conducted in accordance with the provisions of sections 12-20-403 and 24-4-105.
(d) The board may revoke, suspend, deny, issue, reissue, or reinstate licenses granted pursuant to this article 275 or under the previous laws of this state, and the board may take other intermediate action deemed necessary under the circumstances of each case pursuant to this section.
(2) Section 12-20-408 governs judicial review of an action of the board in refusing to grant or renew, revoking, or suspending a license, issuing a letter of admonition, or placing a licensee on probation or under supervision pursuant to subsection (1)(a)(I) of this section.
(3) The board may send a letter of admonition by certified mail to a licensee under the circumstances specified in and in accordance with section 12-20-404 (4).
(4) The board may send a confidential letter of concern to a licensee under the circumstances specified in section 12-20-404 (5).
(5) In addition to the persons specified in section 12-20-402, any member of a professional review committee authorized by the board, any member of the committee's staff, and any person acting as a witness or consultant to the committee is granted the same immunity, and is subject to the same conditions for immunity, as specified in section 12-20-402.
(6) (a) The board, on its own motion or upon application, at any time after the refusal to grant a license, the imposition of any discipline, or the ordering of probation, as provided in this section and section 12-20-404, may reconsider its prior action and grant, reinstate, or restore the license, terminate probation, or reduce the severity of its prior disciplinary action. The taking of any further action, or the holding of a hearing with respect thereto, rests in the sole discretion of the board.
(b) Upon the receipt of the application, it may be forwarded to the attorney general for such investigation as may be deemed necessary. The proceedings shall be governed by the applicable provisions governing formal hearings in disciplinary proceedings. The attorney general may present evidence bearing upon the matters in issue, and the burden shall be upon the applicant seeking reinstatement to establish the averments of the application as specified in section 24-4-105 (7). No application for reinstatement or for modification of a prior order shall be accepted unless the applicant deposits with the board all amounts unpaid under any prior order of the board.
(7) Upon dismissal of a complaint that has gone to hearing, the board shall notify the complainant that he or she may receive a copy of the investigation report and the response of the optometrist or other person alleged to have violated the act upon payment of costs of copying and mailing such information.
(8) The board may issue cease-and-desist orders under the circumstances and in accordance with the procedures specified in section 12-20-405.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1425, � 1, effective October 1.
Editor's note: This section is similar to former � 12-40-119 as it existed prior to 2019.