CR 19-033 Rule Text

Section 227.11 (2) (b), Stats., sets forth the parameters of an agency’s rule-making authority, stating an agency, “may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.”

Section 440.08 (3) (b), Stats., states that, “the interested examining board … may promulgate rules requiring the holder of a credential who fails to renew the credential within 5 years after its renewal date to complete requirements in order to restore the credential …”

Section 449.04 (1) (c), Stats., requires that a, “person passes an examination approved or conducted by the examining board” in order to be granted a license. Subsection (2) states that, “[t]he examination shall test knowledge regarding general and ocular pharmacology as it relates to optometry with particular emphasis on the use of topical ocular diagnostic pharmaceutical agents and therapeutic pharmaceutical agents, including the treatment of adverse reactions to such pharmaceutical agents, and knowledge regarding the removal of foreign bodies from an eye or from an appendage to the eye,” and that “the examining board may do any of the following:

(a) Prepare, administer, and grade the examination.

(b) Approve in whole or in part an examination prepared, administered, and graded by the national board of examiners in optometry or another examination provider approved by the examining board.

(c) Approve and administer an examination prepared and graded by or under the direction of the national board of examiners in optometry or another examination provider approved by the examining board.”

Related statute or rule:

Opt 6, relating to the use of diagnostic and therapeutic pharmaceutical agents and removal of superficial foreign bodies from an eye or from an appendage to the eye.

Plain language analysis:

The rules for licensure by examination, licensure by endorsement, and late renewal are being amended to clarify that applicants need to pass all parts of the National Board of Examiners in Optometry (NBEO) including the embedded portion in Part II, the Treatment and Management of Ocular Disease (TMOD) exam.

Summary of, and comparison with, existing or proposed federal regulation:

The federal government schedules therapeutic pharmaceutical agents through the Controlled Substances Act, which categorizes optometrists as mid-level practitioners under Title 21, Code of Federal Regulations, Section 1300.01.

Summary of public comments and feedback on the statement of scope:

The Optometry Examining Board, upon direction under s. 227.136 (1), Stats., held a preliminary public hearing and comment period on February 7, 2019 for SS 010-19. The Board received one public testifier in support of the statement of scope. After consideration of the public comments, the Board approved the statement of scope for implementation.

Comparison with rules in adjacent states:

Illinois:

The Optometric Licensing and Disciplinary Board, under the Illinois Department of Financial and Professional Regulation, requires that, “[t]he examination for licensure as an optometrist in Illinois shall be Part I, Part II, including passage of the Treatment and Management of Ocular Disease (TMOD) section after January 1, 1996, and Part III of the examination administered by the National Board of Examiners in Optometry (NBEO).” Title 68, section 1320.40 (a), Illinois Administrative Code.

Iowa:

The Board of Optometry, under the Iowa Department of Public Health, requires that applicants “pass all parts of the NBEO examination in effect at the time of application.” 645-180.02 (1), Iowa Administrative Code. According to the NBEO website, that includes passing the TMOD independently of passing Part II, NBEO.

Michigan:

The Michigan Board of Optometry, under the Department of Licensing and Regulatory Affairs, requires that applicants submit passing scores on Parts 1, 2, and 3 of the National Board (NBEO) Examinations as well as the Treatment and Management of Ocular Disease (TMOD) Examination embedded in Part 2, in accordance with R 338.307 (3), Michigan Administrative Rules.

Minnesota:

The Minnesota Board of Optometry requires passage of the NBEO Parts I, II, III, and the TMOD. See General Information for applicants at mn.gov/boards/optometry.

Summary of factual data and analytical methodologies:

Optometrists licensed after 2006 have the authority under chapter 449 to prescribe controlled substances and remove foreign bodies from an eye or from an appendage to the eye. Under section 449.04 (2), Stats., applicants are required to be tested on, “knowledge regarding general and ocular pharmacology as it relates to optometry with particular emphasis on the use of topical ocular diagnostic pharmaceutical agents and therapeutic pharmaceutical agents, including the treatment of adverse reactions to such pharmaceutical agents, and knowledge regarding the removal of foreign bodies from an eye or from an appendage to the eye.” The TMOD embedded questions in Part II of the NBEO are an essential component of evaluating applicants’ preparation for practicing Optometry competently in the State of Wisconsin. Optometrists licensed before 2006 are required to pass the TMOD exam or its equivalent prior to being granted a therapeutic pharmaceutical agent (TPA) certificate, which provides the authority to prescribe controlled substances and remove foreign bodies from an eye or from an appendage to the eye.

Thus, this rule project will ensure that the administrative rules are compliant with statute. For new applicants, applicants for licensure by endorsement who were licensed after 1996, and for those who are submitting a late renewal, the rules identifying qualifying exams need to be updated to clarify that passage of the TMOD is required, in accordance with the statutorily-defined minimum standards.

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 is attached.

Effect on small business:

These proposed 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 by email at [e-mail], or by calling [phone].

Agency contact person:

Sharon Henes, 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 [phone]; email at [e-mail].

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TEXT OF RULE

SECTION 1. Opt 3.02 (3) is amended to read:

Opt 3.02 (3) Verification of passing parts I, II, including passage of the Treatment and Management of Ocular Disease examination, and III of the National Board of Examiners in Optometry examination.

SECTION 2. Opt 4.01 (9) is repealed and recreated to read:

Opt 4.01 (9) Has completed the education and examination requirements to the satisfaction of the board in compliance with ch. Opt 6.

SECTION 3. Opt 4.03 (2) (b) is amended to read:

Opt 4.03 (2) (b) Parts I, II, including passage of the Treatment and Management of Ocular Disease examination, and III of the national board examination, if the applicant has engaged in the practice of optometry for less than 5 years prior to January 1, 1996, or if applicant graduated from an approved college of optometry after December 1, 1995.

SECTION 4. Opt 7.05 (2) (b) 2. a. is amended to read:

Opt 7.05 (2) (b) 2. a. Passing parts I, II, including passage of the Treatment and Management of Ocular Disease examination, and III of the National Board of Examiners in Optometry examination.

SECTION 5. EFFECTIVE DATE. The rules adopted in this order shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, pursuant to s. 227.22 (2) (intro.), Stats.

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(END OF TEXT OF RULE)

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