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Procedures For Handling Complaints


Published: 2015

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The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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BOARD OF OPTOMETRY

 

DIVISION 60
PROCEDURES FOR HANDLING COMPLAINTS

852-060-0004
Processing of Complaints
The Board processes complaints in accordance with the requirements of ORS 676.160 to 676.180 and the provisions of ORS 683.278, 683.325, 683.335.
Stat. Auth.: ORS 676 & 683

Stats. Implemented: ORS 676.160 - ORS 676.180

Hist.: OPT 6-1998, f. 12-28-98, cert. ef. 1-1-99; OPT 2-2004, f. & cert. ef. 5-20-04
852-060-0025
Disciplinary Action
(1) When disciplining an optometric physician
or any other person, the Oregon Board of Optometry may do any of the following:
(a) Deny an initial license;
(b) Suspend, refuse to renew
or revoke a license;
(c) Impose probation on any
licensee;
(d) Limit the practice of any
licensee; and
(e) Take other disciplinary
action as the Board in its discretion finds proper, including the assessment of
the costs of the disciplinary proceedings as a civil penalty, the assessment of
a civil penalty not to exceed $10,000 for each violation, or both.
(2) The Board may discipline
any optometric physician or person, where appropriate, for the following causes:
(a) Conviction of a felony or
misdemeanor where such an offense bears a demonstrable relationship to the duties
of an optometric physician. The record of conviction, or a copy thereof certified
by the clerk of the court or by the judge in whose court the conviction is had,
is conclusive evidence of such conviction;
(b) Practicing optometry without
a license;
(c) Securing a license by practicing
fraud or deceit upon the Board;
(d) Unprofessional conduct;
(e) Gross ignorance or inefficiency
in the practice of optometry;
(f) Failing to comply with the
requirements of continuing education;
(g) Obtaining any fee by fraud
or misrepresentation;
(h) Employing directly or indirectly
any suspended or unlicensed optometrist to perform any work covered by ORS 683.010
to 683.335;
(i) Advertising optometric services
or treatment or advice in which untruthful, improbable, misleading or deceitful
statements are made;
(j) Habitual, excessive or unlawful
use of intoxicants, drugs or controlled substances;
(k) Permitting another person
to use the optometrist’s license;
(l) Using advertisements that
do not indicate that a licensed optometrist is practicing at the advertised location
or locations or advertising optometric services without having a licensed optometrist
at the location or locations;
(m) Advertising professional
methods or professional superiority;
(n) Violating the federal Controlled
Substances Act;
(o) Prescribing controlled substances
without a legitimate optometric purpose, or without following accepted procedures
for examination of patients or for record keeping;
(p) Failing to report to the
Board within 10 calendar days any adverse action taken against the optometrist or
person by another licensing jurisdiction, health regulatory board, peer review body,
health care institution, professional optometric society or association, governmental
agency, law enforcement agency or court for acts similar to conduct that would constitute
grounds for disciplinary action as described in this section;
(q) Having been disciplined
by any health regulatory board of another state based on acts similar to acts described
in this section. A certified copy of the record of disciplinary action is considered
conclusive evidence of the action;
(r) Any violation of the provisions
of ORS 683.010 to 683.335; or
(s) Practicing optometry in
a location not reported to the Board.
(t) Failing to report the suspected
prohibited or unprofessional conduct of another health care licensee to the appropriate
board within 10 working days as required in ORS 676.150 and 683.340.
(3) The Board must report all
disciplinary action taken by the Board to the National Practitioner Data Bank.
Stat. Auth.: ORS 683, 182
Stats. Implemented: ORS 683.140,
683.180, 683.270, 683.990 & 182.466
Hist.: OE 2, f. 12-5-57;
OE 14, f. 2-20-73, ef. 3-1-73; OE 1-1979, f. & ef. 3-8-79; OE 2-1982, f. &
ef. 3-18-82; OE 2-1984, f. & ef. 7-14-84; OP 1-1987, f. & ef. 4-30-87; OP
2-1992, f. & cert. ef. 10-21-92; OPT 1-2001, f. 6-18-01, cert. ef. 7-1-01; OPT
1-2003, f. 6-12-03, cert. ef. 7-1-03; Renumbered from 852-010-0025, OPT 4-2005,
f. & cert. ef. 12-8-05; OPT 1-2013, f. & cert. ef. 1-3-13; OPT 2-2014, f.
11-28-14, cert. ef. 1-1-15; OPT 3-2014, f. 12-29-14, cert. ef. 1-1-15
852-060-0027
Definition of Unprofessional Conduct
Unprofessional conduct within the meaning
of ORS 683.140(1)(c) includes, but is not limited to:
(1) Any conduct or practice
contrary to recognized standards of ethics of the optometric profession.
(2) Fraud, misrepresentation
or dishonesty, including but not limited to:
(a) Advertising optometric services,
treatments, or advice in which untruthful, improbable, misleading or deceitful statements
are made.
(b) Misrepresenting any facts
to a patient concerning treatments or fees.
(c) Making a false statement
to the Board or to an agent of the Board.
(d) Willfully deceiving or attempting
to deceive the Board, an employee of the Board, or an agent of the Board in any
application or renewal, or in reference to any matter under investigation by the
Board. This includes but is not limited to the omission, alteration or destruction
of any records in order to obstruct or delay an investigation by the Board, or to
omit, alter or falsify any information in patient or business records to avoid potential
disciplinary action.
(3) Advertising professional
methods or professional superiority, including using the term “board certified”
without defining which board has provided the certification.
NOTE: As a licensing and regulatory
agency, the Oregon Board of Optometry does not “board certify” optometric
physicians.
(4) Violations of ORS 676.110(5) (use of
titles), which states, in part, that any person practicing optometry who uses the
title “doctor,” or any contraction thereof, “clinic,” “institute,”
“specialist,” or any other assumed name or title in connection with
the profession, in all advertisements, professional notices, or any written or printed
matter must add the word “optometrist” or the words “doctor of
optometry” or “optometric physician.”
(5) Aiding an unlicensed person
in the practice of optometry.
(6) Permitting another person
to use the optometrist’s license
(7) Failure to train and directly
supervise persons to whom optometric services have been appropriately delegated.
(8) Prescribing, dispensing
or administering controlled substances outside the scope of practice of optometry
or in a manner that impairs the health and safety of an individual.
(9) Habitual, excessive or unlawful
use of intoxicants, drugs or controlled or mind-altering substances.
(10) Failing to keep complete
and accurate records for a patient.
(11) Failing to retain patient
records in an accessible print or electronic format.
(12) Failing to immediately
give the prescription to the patient at the time the doctor would provide spectacles
or contact lenses without additional examination.
(13) Violating the rights of
privacy or confidentiality of the patient unless required by law to disclose information.
(14) Failing make appropriate
transfer of the custody of patient records.
(15) Obstruction and harassment,
including but not limited to:
(a) The use of threats or harassment
or to delay or to obstruct any person in providing evidence in any investigation,
disciplinary action, or other legal action instituted by the Board.
(b) Conduct determined by the
Board to be harassment of any complainant by the licensee or any member of the licensee’s
staff or practice, regardless of complaint case closure status.
(c) The use of threats, harassment,
or any other conduct that obstructs or delays a member of the Board, a member of
the Board’s staff or a duly appointed agent of the Board in carrying out their
functions under the Board’s rules.
(d) The discharge of an employee
based primarily on the employee’s attempt to comply with or aid in the compliance
of the Board’s rules, or with the Board’s enforcement activities.
(16) Failing to fully cooperate
with the Board during the course of an investigation, including but not limited
to waiver of confidentiality privileges except attorney-client privilege.
(17) Making an agreement with
a patient or person, or any person or entity representing patients or persons, or
providing any form of consideration that would prohibit, restrict, discourage or
otherwise limit a person’s ability to file a complaint with the Oregon Board
of Optometry; to truthfully and fully answer any questions posed by an agent or
representative of the Board; or to participate as a witness in a Board proceeding.
(18) Failing to respond in writing
to a Board request for information as required.
(19) Failing to provide the
Board with requested patient records.
(20) Failing to appear before
the Board at a time and place designated by the Board for such appearance.
(21) Failing to comply with
a Board order.
(22) Failing to make full payment
to the Board of all Board assessed fees, fines and penalties.
(23) Failing to give timely
written notification to the Board of any disciplinary action or sanction related
to the practice of optometry by any licensing agency of any state.
(24) Failing to give written
notification to the Board of any felony or misdemeanor convictions within 10 days
of the conviction.
(25) Failure to timely report
own or other licensee’s suspected prohibited or unprofessional conduct, arrests
or convictions as required by ORS 676.150, 683.335, and 683.340.
(26) Conduct that could be construed
as moral turpitude.
(27) Conduct that could be construed
as moral turpitude.
(28) Sexual misconduct, including
but not limited to:
(a) Sexual abuse: Includes conduct
that constitutes a violation of any provision of ORS 163.305 through 163.479, Criminal
Sexual Offenses, if proven by at least a preponderance of the evidence in any criminal,
civil or administrative litigation, or admitted or stipulated by the professional;
(b) Sexual Violation: Includes
professional-patient sex, whether initiated by the patient or not, and engaging
in any conduct with a patient that is sexual, or may be reasonably interpreted as
sexual, including, but not limited to: sexual intercourse; genital-to-genital contact;
oral-to-genital contact; oral-to-anal contact; oral-to-oral contact except CPR;
touching breasts, genitals, or any sexualized body part for any purpose other than
appropriate examination or treatment or where the patient has refused or has withdrawn
consent; encouraging the patient to masturbate in the presence of the professional
or masturbation by the professional while the patient is present; and
(c) Sexual Impropriety: Includes
any behavior, gestures, or expressions that are seductive or sexually demeaning
to a patient of normal sensibilities; inappropriate procedures, including, but not
limited to, disrobing or draping practices that reflect a lack of respect for the
patient’s privacy; inappropriate comments about or to the patient, including,
but not limited to, making sexual comments about a patient’s body or underclothing,
making sexualized or sexually demeaning comments to a patient, inappropriate comments
on the patient’s or professional’s sexual orientation, making comments
about potential sexual performance during an examination or consultation; requesting
the details of sexual history unless medically necessary; questioning or discussing
sexual likes or dislikes; initiation by the professional of conversation regarding
the sexual problems, preferences or fantasies of the professional or the patient;
or kissing of a sexual nature.
Stat. Auth.: ORS 683, 182 & 676
Stats. Implemented: ORS 683.140,
683.270, 676.150 & 182.466
Hist.: OP 1-1987, f. &
ef. 4-30-87; OP 1-1991, f. & cert. ef. 4-12-91; OP 2-1992, f. & cert. ef.
10-21-92; OP 1-1993, f. & cert. ef. 2-10-93; OP 3-1993, f. & cert. ef. 10-27-93;
OPT 2-2000, f. 4-28-00, cert. ef. 5-1-00; OPT 3-2000, f. 6-26-00, cert. ef. 7-1-00;
OPT 2-2002, f. & cert. ef. 12-18-02; OPT 1-2005, f. & cert. ef. 2-23-05;
Renumbered from 852-010-0027, OPT 4-2005, f. & cert. ef. 12-8-05; OPT 1-2013,
f. & cert. ef. 1-3-13; OPT 2-2014, f. 11-28-14, cert. ef. 1-1-15; OPT 3-2014,
f. 12-29-14, cert. ef. 1-1-15
852-060-0028
Definition of Gross Ignorance or Inefficiency
In determining gross ignorance or inefficiency within the meaning of ORS 683.140(1)(c) the Board may take into account relevant factors and practices, including but not limited to the standard of practice generally and currently followed and accepted by persons licensed to practice optometry in this state, the current teachings at accredited optometry schools, relevant technical reports published in recognized optometry journals, and the desirability of reasonable experimentation in the furtherance of the practice of optometry.
Stat. Auth.: ORS 683; ORS 182

Stats. Implemented: ORS 683.140, 683.270 & 182.466

Hist.: OP 1-1987, f. & ef. 4-30-87; Renumbered from 852-010-0028, OPT 4-2005, f. & cert. ef. 12-8-05
852-060-0060
Model Rules of Procedure
Pursuant to the
provisions of ORS 183.341, the Oregon Board of Optometry adopts the Attorney General’s
Model Rules of Procedure under the Administrative Procedures Act current edition;
these rules of procedure are controlling except as otherwise required by statute
or rule.
[ED. NOTE: The full
text of the Attorney General’s Model Rules of Procedure is available from
the office of the Attorney General or Board of Optometry.]
Stat. Auth.:
ORS 183, 683 & 182

Stats. Implemented:
ORS 183.341(2) & 182.466

Hist.: OPT
2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13
852-060-0065
Requiring
an Answer to Charges as Part of Notices to Parties in Contested Cases
In addition to the
notice requirements under the Attorney General’s Model Rules of Procedure
adopted by OAR 852-60-0060, the notice to parties in contested cases must include
the statement that an answer to any assertions or charges of unprofessional conduct,
sexual abuse, sexual violation or sexual impropriety will be required and will list
the consequences of failure to answer. A statement of the consequences of failure
to answer may be satisfied by enclosing a copy of OAR 852-060-0070 with the notice.
Stat. Auth.: ORS
183, 683 & 182

Stats. Implemented:
ORS 183.413 & 182.466

Hist.: OPT
2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13
852-060-0070
Hearing Requests,
Answers, and Consequences of Failure to Answer
(1) A hearing request
and answer when required by OAR 852-060-0065 must be made in writing to the Board
by the party or his or her representative. Any required answer must include the
following:
(a) An admission
or denial of each factual matter alleged in the notice that requires an answer;
and
(b) A short
and plain statement of each relevant affirmative defense the party may have.
(2) Except
for good cause:
(a) Factual
matters alleged in the notice that require an answer and which are not denied in
the answer are presumed admitted;
(b) Failure
to raise a particular defense in the answer will be considered a waiver of such
defense;
(c) New matters
alleged in the answer (affirmative defenses) are presumed to be denied by the Board;
and
(d) Evidence
may not be taken on any issue not raised in the notice and answer.
Stat. Auth.: ORS
683 & 182

Stats. Implemented:
ORS 683.155 & 182.466

Hist.: OPT
2-2004, f. & cert. ef. 5-20-04; OPT 1-2013, f. & cert. ef. 1-3-13
852-060-0075
Discovery
An order requiring discovery will be responded to pursuant to OAR 137-003-0025 included in the Uniform and Model Rules of Procedure under the Administrative Procedures Act and ORS 676.175. In addition, ORS 676.175 provides that contested case hearings are closed to members of the public.
Stat. Auth.: ORS 683 & 182

Stats. Implemented: ORS 683.155 & 182.466

Hist.: OPT 2-2004, f. & cert. ef. 5-20-04; OPT 1-2006, f. & cert. ef. 3-8-06


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