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NEW JERSEY REGISTER
VOLUME 34, NUMBER 9
MONDAY, MAY 6, 2002
RULE PROPOSAL
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY STATE BOARD OF OPTOMETRISTS
Termination of the Optometrist Patient Relationship

Proposed New Rule: N.J.A.C. 13:38-3.9

Authorized By: New Jersey State Board of Optometrists, Susan Gartland, Executive Director.

Authority: N.J.S.A. 45:12-4.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2002-166.

Submit written comments by July 5, 2002 to:

Susan Gartland, Executive Director
New Jersey State Board of Optometrists
124 Halsey Street PO Box 45012
Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the general rulemaking authority of N.J.S.A. 45:12-4, the New Jersey State Board of Optometrists ("the Board") is proposing a new rule, N.J.A.C. 13:38-3.9, concerning the termination of the optometrist-patient relationship. The new rule sets forth compliance requirements for licensees when terminating an optometrist-patient relationship. The Board proposes this new rule to ensure that doctors of optometry terminate relationships with their patients in a professional manner.

N.J.A.C. 13:38-3.9(a) establishes a definition section for words and terms used throughout this new rule. The Board proposes to define "emergency care or service" as the provision of optometric services to an individual in circumstances in which timely care is necessary to prevent potential vision loss or would cause the patient undue hardship. The Board also proposes to define "optometrist" as any person licensed by the New Jersey State Board of Optometrists. In addition, the Board proposes to define "optometrist-patient relationship" as an association between an optometrist and patient wherein the optometrist owes a continuing duty to the patient to be available to provide optometric services consistent with his or her training, experience and scope of practice. Lastly, the Board proposes to define "patient" as any individual who is the recipient of optometric services for purposes of diagnosis, treatment or consultation relating to treatment.

N.J.A.C. 13:38-3.9(b) establishes when an optometrist-patient relationship exists. More specifically, N.J.A.C. 13:38-3.9(b) provides that the optometrist-patient relationship shall be deemed to exist where the optometrist has provided services within the scope of his or her license within one calendar year preceding the date on which care is to be terminated. In addition, the optometrist-patient relationship must also be deemed to exist in those circumstances where the patient has indicated to the optometrist that he or she anticipates that the optometrist will continue to provide professional services.

N.J.A.C. 13:38-3.9(c)1 establishes that in order to terminate an optometrist-patient relationship, the optometrist must notify the patient that he or she wishes to terminate the relationship and will no longer be providing care. This notification must be in writing, mailed by certified mail, return receipt requested, to the patient's last known address and made no less than 30 days prior to the date on which care shall be terminated. N.J.A.C. 13:38- 3.9(c)2 establishes that an optometrist must also provide all necessary emergency care or services, which shall include the provision of necessary prescriptions, until the date on which the optometrist-patient relationship is terminated. The provision of such emergency care or services shall not be deemed to manifest any intention to reestablish the optometrist-patient relationship. N.J.A.C. 13:38-3.9(c)3 establishes that in addition to notifying the patient and providing the patient with all necessary emergency care or service, the optometrist must comply with all requirements set forth in N.J.A.C. 13:38-6.1 for access to and transfer of the patient records.

N.J.A.C. 13:38-3.9(d) establishes when an optometrist must not terminate an optometrist-patient relationship. N.J.A.C. 13:38-3.9(d)1 provides that an optometrist must not terminate an optometrist-patient relationship where to do so would be for any discriminatory purpose and/or would violate any laws or rules prohibiting discrimination; or where the optometrist knows or reasonably should know, that no other professional is currently able to provide the type of care or service that the optometrist is providing the patient.

N.J.A.C. 13:38-3.9(e) establishes an exception to N.J.A.C. 13:38-3.9(c) 1, when terminating an optometrist-patient relationship. N.J.A.C. 13:38- 3.9(e)1 provides that an optometrist need not comply with the requirements of the rule for termination when the optometrist-patient relationship has been terminated by the patient as evidenced by conduct manifesting a deliberate intention to terminate the relationship. Such conduct shall be recorded in the patient record. N.J.A.C. 13:38-3.9(e)2 provides that an optometrist need not comply with N.J.A.C. 13:38-3.9(c)1 if the reason for termination of the optometrist-patient relationship is because the optometrist has discontinued providing services to the patient's managed care provider or health maintenance organization (HMO) and such managed care provider or HMO has discharged its notice obligation pursuant to N.J.S.A. 26:2S-5a(1).

N.J.A.C. 13:38-3.9(f) provides that when requested by the patient, the optometrist must make reasonable efforts to assist the patient in obtaining professional services from another health care provider qualified to meet the patient's needs.

As the Board has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed new rule will impact optometrists. It establishes standards to which optometrists are expected to adhere in order to ensure that they terminate an optometrist-patient relationship properly. The new rule establishes notification, recordkeeping and other requirements an optometrist must fulfill before terminating such a relationship, and specifies circumstances in which the optometrist is barred from terminating the relationship.

Optometrists must notify the patient in writing that he or she wishes to terminate the relationship. In addition, the optometrist must provide all necessary emergency care or services until the date on which the relationship is terminated. However, an optometrist must not terminate an optometric relationship when where to do so would be for any discriminatory purpose and/or would violate any laws or rules prohibiting discrimination or where the optometrist knows or reasonably should know that no other professional is currently able to provide the type of care or service that the optometrist is providing the patient. Also, an optometrist need not notify the patient or provide all necessary emergency care services if the relationship has been terminated by the patient as evidenced by conduct manifesting a deliberate intention to terminate the relationship or the reason for termination of the optometrist-patient relationship is because the optometrist has discontinued providing services to the patient's managed care provider or HMO and such managed care provider or HMO has discharged its notice obligation pursuant to N.J.S.A. 26:2S-5a(1).

Proposed new rule N.J.A.C. 13:38-3.9 will also have a social impact upon consumers who receive optometric care. Since the proposed new rule establishes standards an optometrist must meet before terminating an optometrist-patient relationship, and bars termination in certain circumstances, the patient will benefit from the rules. For example, the patient must be notified of the termination and must be provided all necessary emergency care or services before the optometrist can terminate the relationship. This new rule will ensure that patients are not left without necessary optometric care should the optometrist terminate the relationship.

Economic Impact

The proposed new rule may have an economic impact upon licensees. Optometrists under the new rule must pay the expenses of notifying the patient that he or she wishes to terminate the optometrist-patient relationship. This notification is required to be in writing, mailed by certified mail, return receipt requested, to the patient's last known address and made no less than 30 days prior to the date on which care is to be terminated. In addition, optometrists must also provide all necessary emergency care or services, which includes the provision of necessary prescriptions, until the date on which the optometrist- patient relationship is terminated. The provision of such emergency care or services shall not be deemed to manifest any intention to reestablish the optometric relationship.

Although the proposed new rule may have an economic impact upon licensees, it attempts to protect consumers by ensuring that doctors of optometry terminate optometrist-patient relationships in a professional manner. The proposed new rule furthers the health, welfare and safety of the public; therefore, any costs incurred by any licensee to comply with the proposed new rule is greatly outweighed by the benefit to be derived from the rule.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rule is dictated by State statute and is not subject to Federal requirements or standards.

Jobs Impact

The Board does not anticipate that the proposed new rule will result in the creation or loss of any jobs.

Agriculture Industry Impact

The Board believes the proposed new rule will have no impact upon the agriculture industry in New Jersey.

Regulatory Flexibility Statement

The Regulatory Flexibility Act ("Act"), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed new rule will apply. If, for the purposes of the Act, the approximately 1,190 active licensed optometrists are considered "small businesses," then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping, and other compliance requirements of the proposed rule including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.

The new rule will impose recordkeeping and other compliance requirements upon a licensee who wishes to terminate an optometrist-patient relationship. Under N.J.A.C. 13:38-3.9(c)1, in order to terminate an optometrist-patient relationship, the optometrist must notify the patient that he or she wishes to terminate the relationship and will no longer be providing care. This notification must be in writing, by certified mail, return receipt requested, to the patient's last known address and made no less than 30 days prior to the date on which care shall be terminated. Under N.J.A.C. 13:38-3.9(c)2, in order to terminate an optometrist-patient relationship, the optometrist must also provide all necessary emergency care or services, which shall include the provision of necessary prescriptions, until the date on which the optometrist- patient relationship is terminated. In addition, pursuant to N.J.A.C. 13:38- 3.9(c)3, an optometrist must also comply with all requirements set forth in N.J.A.C. 13:38-6.1 for access to and transfer of the patient records.

N.J.A.C. 13:38-3.9(d) also imposes compliance requirements upon licensees since an optometrist must not terminate an optometrist-patient relationship when to do so would be for any discriminatory purpose and/or would violate any laws or rules prohibiting discrimination; or where the optometrist knows or reasonably should know, that no other professional is currently able to provide the type of care or service that the optometrist is providing the patient.

N.J.A.C. 13:38-3.9(e) imposes recordkeeping requirements upon licensees since this rule requires recordation in the patient record. An optometrist need not comply with the requirements at N.J.A.C. 13:38-3.9(c)1 if the optometrist-patient relationship has been terminated by the patient as evidenced by conduct manifesting a deliberate intention to terminate the relationship. This conduct must be recorded in the patient record.

N.J.A.C. 13:38-3.9(f) also imposes compliance requirements upon licensees since an optometrist must, when requested by a patient, make reasonable efforts to assist the patient in obtaining professional services from another health care provider qualified to meet the patient's needs.

There are no other reporting, recordkeeping, or compliance requirements. The Board does not anticipate that professional services will be necessary in order to comply with the new rule. The Board has designed the proposed new rules to further the health, welfare and safety of all persons who receive optometric services; thus, the Board believes that the provisions must be applied uniformly to every optometrist in order to assure uniformity in the provision of optometric services and no differing compliance standards based upon size have been provided.

Smart Growth Impact

The Board does not anticipate that the proposed new rule will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the proposed new rule follows:

<< NJ ADC 13:38-3.9 >>

13:38-3.9 Termination of the optometrist-patient relationship

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

"Emergency care or service" means the provision of optometric services to an individual in such circumstances where timely care is necessary to prevent potential vision loss or would cause the patient undue hardship.

"Optometrist" means any person licensed by the New Jersey State Board of Optometrists.

"Optometrist-patient relationship" means an association between an optometrist and patient which the optometrist owes a continuing duty to the patient to be available to provide optometric services consistent with his or her training, experience and scope of practice.

"Patient" means any individual who is the recipient of optometric services for purposes of diagnosis, treatment or consultation relating to treatment.

(b) The optometrist-patient relationship shall be deemed to exist where the optometrist has provided services within the scope of his or her license within one calendar year preceding the date on which care is to be terminated. In addition, the optometrist-patient relationship shall also be deemed to exist in those circumstances in which the patient has indicated to the optometrist that he or she anticipates that the optometrist will continue to provide professional services.

(c) In order to terminate an optometrist-patient relationship, the optometrist shall:

1. Notify the patient that he or she wishes to terminate the optometrist- patient relationship and will no longer be providing care. The notification shall be in writing, by certified mail, return receipt requested, to the patient's last known address and made no less than 30 days prior to the date on which care is to be terminated;

2. Provide all necessary emergency care or services, which shall include the provision of necessary prescriptions, until the date on which the optometrist- patient relationship is terminated. The provision of such emergency care or services shall not be deemed to manifest any intention to reestablish the optometrist-patient relationship; and

3. Comply with all requirements set forth in N.J.A.C. 13:38-6.1 for access to and transfer of the patient records.

(d) Notwithstanding (c) above, an optometrist shall not terminate an optometrist-patient relationship under the following circumstances:

1. Where to do so would be for any discriminatory purpose and/or would violate any laws or rules prohibiting discrimination; or

2. Where the optometrist knows or reasonably should know, that no other professional is currently able to provide the type of care or service that the optometrist is providing the patient.

(e) An optometrist need not comply with the requirements set forth in (c)1 above if:

1. The optometrist-patient relationship has been terminated by the patient as evidenced by conduct manifesting a deliberate intention to terminate the relationship. Such conduct shall be recorded in the patient record; or

2. The reason for termination of the optometrist-patient relationship is because the optometrist has discontinued providing services to the patient's managed care provider or health maintenance organization (HMO) and such managed care provider or HMO has discharged its notice obligation pursuant to N.J.S.A. 26:2S-5a(1).

(f) When requested by the patient, the optometrist shall make reasonable efforts to assist the patient in obtaining professional services from another health care provider qualified to meet the patient's needs.

 

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Posted May 6, 2002