OPTOMETRY EXAMINING BOARD
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IN THE MATTER OF RULEMAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : OPTOMETRY EXAMINING BOARD
OPTOMETRY EXAMINING BOARD : ADOPTING RULES : (CLEARINGHOUSE RULE )
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PROPOSED ORDER
An order of the Optometry Examining Board to amend Opt 1.03 and Opt 5.03 (8); and to create Opt 1.02 (7m), Opt 5.045 (4), and Opt 5.20 relating to telehealth.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section 15.08 (5) (b), Stats. provides that each examining board “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.” Section 227.11 (2) (a), Stats. provides that “Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.” Section 449.25, Stats. provides that the examining board shall promulgate rules relating to informed consent, stating that, “[a]ny optometrist who treats a patient shall inform the
patient about the availability of reasonable alternate modes of treatment and about the
benefits and risks of these treatments.”
Section 5 of 2021 Wisconsin Act 121: “If the department, an examining board, or an affiliated credentialing board promulgates rules related to telehealth, the department, the examining board, or the affiliated credentialing board shall define “telehealth” to have the meaning given in s. 440.01 (1) (hm).” Related statute or rule:
None.
Plain language analysis:
This rule will include a uniform definition of telehealth for optometrists based on that given by 2021 Wisconsin Act 121. It will specify optometrists are to hold a Wisconsin license or apply for a temporary credential in order to diagnose and treat patients located in Wisconsin. It will specify that optometrists are held to the same standards of conduct regardless of whether the services are provided in person or by telehealth. Summary of, and comparison with, existing or proposed federal regulation:
None.
Summary of public comments received on statement of scope and a description of how and to what extent those comments and feedback were taken into account in drafting the proposed rule:
N/A
Comparison with rules in adjacent states:
Illinois:
Illinois Statute provides that telehealth includes telemedicine and the delivery of health care services provided by way of an interactive telecommunications system. Illinois law further provides that “[a] health care professional treating a patient located in this State through telehealth must be licensed or authorized to practice in Illinois.” Practice of telehealth in Illinois is limited to the extent of the practitioner’s scope of practice as established in his or her respective licensing and consistent with the standards of care for in-person services. Optometrists are included in the definition of “health care professionals.”
Iowa:
Iowa law defines “Telehealth” as “the delivery of health care services through the use of real-time interactive audio and video, or other real-time interactive electronic media, regardless of where the health care professional and the covered person are each located. “Telehealth” does not include the delivery of health care services delivered solely through an audio-only telephone, electronic mail message, or facsimile transmission.” Services must comply with all rules adopted by the appropriate professional licensing board that has oversight of the health care professional providing the health care services. Optometry is included in the delivery of health care services.
Michigan:
Michigan law defines “telemedicine” in their insurance code as "the use of an electronic media to link patients with health care professionals in different locations.” To be considered telemedicine under this section, the health care professional must be able to examine the patient via a secure interactive audio or video, or both, telecommunications system, or through the use of store and forward online messaging. Optometrists are included in the definition of “health care professionals.”
Minnesota:
Minnesota law defines "Telehealth" as “the delivery of health care services or consultations through the use of real time two-way interactive audio and visual communications to provide or support health care delivery and facilitate the assessment, diagnosis, consultation, treatment, education, and care management of a patient's health care.” Telehealth includes the application of secure video conferencing, store-and-forward technology, and synchronous interactions between a patient located at an originating site and a health care provider located at a distant site. Until July 1, 2025, telehealth also includes audio-only communication between a health care provider and a patient. Telehealth does not include communication between a health care provider and a patient that consists solely of an email or facsimile transmission. Telehealth does not include telemonitoring services. Optometrists are included in the definition of health care providers.
Summary of factual data and analytical methodologies:
The rules were developed in consultation with the Optometry Examining Board by reviewing Section 5 of 2021 Wisconsin Act 121, reviewing the current Optometry rules and statutes, and discussing current practice in the profession. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The proposed rules were posted for a period of 14 days to solicit public comment on economic impact, including how the proposed rules may affect businesses, local government units, and individuals. No comments were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis are attached.
Effect on small business:
These rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted at Jennifer.Garrett@wisconsin.gov or at (608) 266-2112. Agency contact person:
Jake Pelegrin, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 4822 Madison Yards Way, P.O. Box 8366, Madison, Wisconsin 53708; telephone 608-267-0989; email at DSPSAdminRules@wisconsin.gov. Place where comments are to be submitted and deadline for submission:
