36-7-17 Practice as individual or partner required--Exception for authorized corporate practice--Violation as misdemeanor--Optometrist not precluded from serving as officer or director of health maintenance organization.
36-7-17.1 Certain healing arts practitioners to participate in alternate health care delivery systems.
36-7-18 Display of certificate in office--Exhibition to state board--Violation as misdemeanor.
36-7-19 Advertising regulated by board--Fees not regulated.
36-7-20 Annual renewal of certificate--Revocation on default--Restoration of certificate.
The practice of optometry is declared to be a profession and defined as examination of the human eye and its appendages, and the employment of any means for the measurement of the powers of visions, or any visual, muscular, neurological, interpretative, or anatomical anomalies of the visual processes, and the prescribing or employment of lenses, prisms, frames, mountings, visual training procedure, the prescribing or administration, except by injection of pharmaceutical agents rational to the diagnosis and treatment of the human eye and its appendages, and any other means or method for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the visual processes of the human eye and its appendages except surgery. However, an optometrist may remove superficial foreign bodies from the eye. The prescription of contact lenses, except by a practitioner licensed under chapter 36-4, constitutes the practice of optometry. An optometrist is one who practices optometry under the provisions of this chapter.
Notwithstanding anything in this chapter to the contrary, an optometrist, except an optometrist certified for diagnostic and therapeutic agents as provided by §§ 36-7-15.1 to 36-7-15.3, inclusive, and as provided in § 36-7-31, may not treat glaucoma or ocular hypertension.
36-7-1.2. Prohibitions on use of oral therapeutics and oral steroids.
No optometrist may prescribe, administer, or dispense any oral therapeutic agent to any child under twelve years of age, or any oral steroid to any person, without prior consultation with a physician licensed pursuant to chapter 36-4.
36-7-3. Composition of Board of Examiners--Qualifications of members--Terms of office--Persons ineligible for membership.
The State Board of Examiners in Optometry consists of four members appointed by the Governor, three of whom shall be fully qualified and licensed to prescribe and administer diagnostic and therapeutic pharmaceutical agents under this chapter. Each member shall have been a resident of this state actually engaged in the practice of optometry at least five years preceding the appointment. The term of each member is three years commencing on July first. The Governor shall, by appointment, fill any vacancy. No member may serve more than three consecutive full terms. The appointment of a person to an unexpired term is not considered a full term. No member of any optical school or college, or instructor in optometry, or person connected therewith, or any jobber or jobber's representative, is eligible for the board.
36-7-3.1. Lay member of board--Appointment and term of office.
The membership of the Board of Examiners shall include one lay member who is a user of the services regulated by the board. The term lay member who is a user refers to a person who is not licensed by the board but where practical uses the service licensed, and the meaning shall be liberally construed to implement the purpose of this section. The lay member shall be appointed by the Governor and shall have the same term of office as other members of the board.
36-7-3.2. Board continued within Department of Health--Records and reports.
The Board of Examiners in Optometry shall continue within the Department of Health, and shall retain all its prescribed functions, including administrative functions. The board shall submit such records, information, and reports in the form and at such times as required by the secretary of health, except that the board shall report at least annually.
36-7-4. Employment of counsel and personnel by board--Compensation and expenses.
The Board of Examiners may employ counsel and other necessary assistants to aid in the enforcement of this chapter, the compensation and expenses of whom shall be paid from the funds of the board.
Source: SDC 1939, § 27.0712.
36-7-5. Administration of oaths and taking of testimony by board.
The Board of Examiners shall further have power by and through each member thereof to administer oaths and to take testimony pursuant to §§ 1-26-19.1 and 1-26-19.2 in the granting, revoking, or suspending of certificates of registration.
36-7-6. Salary and expenses of board secretary--Payment from fees.
The secretary of the State Board of Examiners in Optometry shall receive a salary which shall be fixed by the board, and shall also receive his traveling and other expenses necessarily incurred in the performance of his official duties. Such salary shall be fixed by the board; and all such fees and expenses and the compensation and reimbursement of expenses provided by law for members of the board shall be paid from the fees received by the State Board of Optometry under the provisions of this chapter.
The State Board of Examiners in Optometry shall annually, and on or before July first of each year, determine the amount estimated by it to be reasonably required for its purposes for the succeeding year.
36-7-10. Practice of optometry without certificate as misdemeanor.
It is a Class 2 misdemeanor for any person who is not the holder of a certificate of registration or exemption, issued and recorded as provided in this chapter, to practice or offer to practice optometry within the state.
A person entitled to practice optometry in South Dakota who is not already registered is any person who furnishes the Board of Examiners in Optometry satisfactory evidence as follows:
(1) That the person is of the full age of eighteen years and a citizen of the United States or a resident of South Dakota;
(2) That the person is of good moral character;
(3) That the person is a graduate of a recognized Class A optometric school or college approved by the Board of Examiners; and
(4) That the person possesses a licensed certificate of registration obtained by taking and satisfactorily passing an examination given by the board for purpose of determining the person's qualifications for the practice of optometry.
36-7-12. Application for examination--Fees--Reexamination.
Any person desiring to take an examination to determine his or her qualifications for the practice of optometry shall file a sworn application with the secretary of the Board of Examiners in Optometry at least thirty days prior to the time set therefor and pay a fee set by rule promulgated pursuant to chapter 1-26 by the Board of Examiners before examination and an additional amount set by rule promulgated pursuant to chapter 1-26 by the Board of Examiners upon issuance of certificate. Upon failure to pass the first examination, the candidate may elect to be reexamined upon payment of such additional amount, not to exceed one hundred dollars, set by rule promulgated pursuant to chapter 1-26 by the Board of Examiners and take another examination within fifteen months.
36-7-12.1. Pharmacology studies and clinical experience to be completed--Passing grade on pharmacology portion of national board examination to be attained.
Any applicant for licensure as an optometrist after July 1, 1986, shall satisfactorily complete all pharmacology studies and clinical experience required by this chapter and the board and attain a passing grade on the pharmacology portion of the national board examination.
Source: SL 1986, ch 306, § 12.
36-7-12.2. Criminal background check of new applicants and licensees under disciplinary investigation.
Each new applicant for licensure as an optometrist, in this state shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. Upon application, the Board of Examiners of Optometry shall submit completed fingerprint cards to the Division of Criminal Investigation. Upon completion of the criminal background check, the Division of Criminal Investigation shall forward to the board all information obtained as a result of the criminal background check. This information shall be obtained before permanent licensure of the applicant. The board may require a state and federal criminal background check for any licensee who is the subject of a disciplinary investigation by the board. Failure to submit to or cooperate with the criminal background investigation is grounds for denial of an application or may result in revocation of a license. The applicant shall pay for any fees charged for the cost of fingerprinting or the criminal background investigation.
Source: SL 2009, ch 179, § 1.
36-7-13. Licensure through endorsement from another United States jurisdiction--Fee--Promulgation of rules.
By way of substitution for the requirements in subdivisions 36-7-11(3), (4), and (5) and in §§ 36-7-12, 36-7-12.1 and 36-7-31, a candidate for licensure in this state may be given a certificate of registration by paying a fee, not to exceed one hundred seventy-five dollars, upon proof to the Board of Examiners by certified copy of the certificate of registration issued to the candidate by another United States jurisdiction where the requirements for registration are deemed by the South Dakota State Board to be the equivalent to those provided by this chapter if the candidate passes the examination administered by the board required by this chapter or presents satisfactory evidence to the board of having passed substantially similar examinations in another jurisdiction, and the candidate has practiced optometry in the other state for at least five consecutive years immediately prior to the candidate's application for registration in South Dakota. The board may promulgate rules, pursuant to chapter 1-26, to establish standards for licensure through endorsement pursuant to this section, including the level and status of licensure required, the evidence required to establish that the requirements for registration in the jurisdiction in which the candidate is licensed are substantially similar to those required by this chapter, the procedure and contents required for submitting the application, any additional education, testing, or training necessary to ensure the competency of the candidate, and the fee provided for in this section.
36-7-15.1. Rules to ensure competence to administer topical agents.
The State Board of Examiners in Optometry shall adopt rules pursuant to chapter 1-26 to specify additional educational qualifications and to ensure professional competence by those practitioners who apply to the board for a certification enabling them to prescribe and administer diagnostic and therapeutic topical pharmaceutical agents as described in § 36-7-1. The board shall, by rules promulgated pursuant to chapter 1-26, establish separate educational and examination requirements for the certification of optometrists for both diagnostic and therapeutic agents. The board shall make available annual, substantial, in-state pharmaceutical education for licensed optometrists. The initial educational requirements before certification are at least one hundred fifty classroom hours and at least forty hours of clinical experience in pharmaceutical education dealing with diagnosis and treatment of ocular disease. The board shall require a minimum of five hours of continuing pharmaceutical education annually for each optometrist certified for therapeutic agents.
36-7-15.2. Educational and examination requirements for certificate to administer topical agents--Fee.
Only those optometrists who have satisfactorily completed a curriculum in general and ocular pharmacology at an institution accredited by a regional or professional accreditation organization which is recognized or approved by the council on postsecondary accreditation of the United States Office of Education within the Department of Health and Human Services and approved by the State Board of Examiners in Optometry are eligible to apply for the certificate issued pursuant to § 36-7-15.1. Those practitioners who have established their eligibility pursuant to this section shall also pass an examination approved by the board before they may be certified to administer the topical pharmaceutical agents described by § 36-7-1.
36-7-15.3. Certification for use of therapeutic drugs--Examination.
The board, in certifying optometrists for the use of therapeutic drugs, shall require that all applicants before certification either have taken and successfully passed the treatment and management of ocular disease portion of the National Board of Examiners in Optometry test or have taken and successfully passed an examination prepared or certified by the board as covering all areas of pharmacological education provided to graduates of accredited optometric colleges. The South Dakota State University School of Pharmacy may assist the board in the formulation or administration of the examination of optometrists for competency in therapeutic drugs.
36-7-17. Practice as individual or partner required--Exception for authorized corporate practice--Violation as misdemeanor--Optometrist not precluded from serving as officer or director of health maintenance organization.
Every person who practices optometry in South Dakota shall furnish the Board of Examiners satisfactory evidence that he practices optometry as a profession, in his individual personal capacity under his own name or as a partner of another registered optometrist and not as a corporation, limited liability company or agent, employee, officer, member, or partner of a corporation or limited liability except where a practice as an officer, employee, member, or agent of a corporation is established under the terms of chapter 47-11B. A violation of this section is a Class 2 misdemeanor.
Nothing in this section shall preclude a licensed optometrist from serving as a shareholder, officer, or director of a corporation established under the terms of chapter 58-41 as a health maintenance organization or other alternate health care delivery system including, but not limited to, preferred provider organizations, individual practices association, or other form of entity whatever established for group health care purposes.
36-7-17.1. Certain healing arts practitioners to participate in alternate health care delivery systems.
Any licensed optometrist may organize or contract for services with a corporation organized under the laws of this state by licensed practitioners of the healing arts, for the purpose of negotiating group health care contracts and providing services within the scope of their respective licenses with alternate health care delivery systems, including, but not limited to, health maintenance organizations, preferred provider organizations, individual practices organizations or other similar forms of entity whatever.
Source: SL 1987, ch 269, § 2.
36-7-18. Display of certificate in office--Exhibition to state board--Violation as misdemeanor.
Every person practicing optometry shall:
(1) Display the certificate of registration or exemption in a conspicuous place in the principal office wherein he practices; and
(2) Exhibit the certificate to the State Board of Examiners or its authorized representative upon request.
A violation of this section is a Class 2 misdemeanor.
36-7-19. Advertising regulated by board--Fees not regulated.
The Board of Examiners may, in compliance with chapter 1-26, prescribe the mediums of advertising that may be used by optometrists and the size, nature, and type of signs and professional cards that may be used. Said board shall not have power or authority to fix the fees to be charged by its members for professional services.
Source: SDC 1939, § 27.0703 (3) as added by SL 1951, ch 131, § 2; revised pursuant to SL 1972, ch 15, § 4.
36-7-20. Annual renewal of certificate--Revocation on default--Restoration of certificate.
Each licensed optometrist residing in or in active practice within the State of South Dakota shall, on or before the first day of October in each year pay to the State Board of Examiners in Optometry a fee to be set in rule by the Board of Examiners, in default of which the board may, in compliance with chapter 1-26, revoke his license or certificate, either for failure to comply with the continuing education requirements or nonpayment of such fee, but the payment of such fee at or before the time of hearing, with such additional sum as may be fixed in rule by the board, shall excuse the default.
All registered optometrists whenever licensed in the State of South Dakota are and shall be required to take courses of study in subjects relating to the practice of the profession of optometry to the end that the utilization and application of new techniques, scientific and clinical advances, and the achievements of research will assure expansive and comprehensive care to the public.
36-7-20.2. Courses of continuing education specified by board--Certification of attendance--Waiver.
The length of study required by § 36-7-20.1 shall be prescribed by the Board of Examiners in Optometry but shall not exceed forty-five hours in any three consecutive calendar years. Attendance must be at a course or courses approved by the board. Attendance at any course or courses of study are to be certified by the board upon a form provided by the board and shall be submitted by each registered optometrist at the time he makes application to the board for the renewal of his license and payment of his renewal fee. In no instance may the board require a greater number of hours of study than are available at approved courses held within the state and shall be allowed to waive any or all of this requirement in case of certified illness or undue hardship.
36-7-20.3. Contracts to provide continuing education--Funds used--Federal matching grants.
The Board of Examiners in Optometry is authorized to use up to one-half of its annual renewal fees for the purpose of contracting with institutions of higher learning, professional organizations, or qualified individuals for the providing of educational programs that meet this requirement. The board is further authorized to treat funds set aside for the purpose of continuing education as state funds for the purpose of accepting any funds made available under federal law on a matching basis for the promulgation and maintenance of programs of continuing education.
36-7-20.4. Certificate of compliance with continuing education requirements--Exemptions.
Each licensed optometrist residing in or in active practice within the State of South Dakota shall, on or before September first in the third year after his initial licensure, and every third year thereafter, certify on forms provided by the Board of Examiners in Optometry that he has complied with §§ 36-7-20.1 and 36-7-20.2. This provision shall not apply to any licensee serving in the armed forces during any part of the thirty-six months preceding the certification nor to any licensee submitting proof that he was suffering from a serious or disabling illness or physical disability which prevented his attendance at any qualified educational program within the State of South Dakota during the thirty-six months immediately preceding the certification.
Source: SL 1979, ch 252, § 3.
36-7-21. Remission of annual fee while in military service.
The Board of Examiners shall have power to remit the license fee of all registrants while on active duty in the armed forces of the United States.
Source: SDC 1939, § 27.0709 as added by SL 1951, ch 131, § 5; SL 1967, ch 99.
36-7-25. Unprofessional conduct defined--No basis for criminal prosecution.
The term, unprofessional conduct, as used in this chapter, means:
(1) Any conduct of a character likely to deceive or defraud the public;
(2) The loaning of a license or certificate by any licensed optometrist or any person or corporation;
(3) The employment of cappers or steerers to obtain business;
(4) Splitting or dividing a fee or compensation with any person or corporation;
(5) The obtaining of any fee or compensation by fraud or misrepresentation;
(6) Employing either directly or indirectly any suspended or unlicensed optometrist to perform any work covered by this chapter;
(7) The advertising by any means whatsoever of optometric practice or treatment or advice in which untruthful, improbable, misleading, or impossible statements are made;
(8) Advertising by printed matter, radio, display, or any other means, the quotation of prices for a discount on or any specific amount of payment for eyeglasses, spectacles, or accessories thereto, ophthalmic lenses, frames or mountings, or the phrases "free examinations," "moderate prices," "low prices," "guaranteed glasses," "satisfaction guaranteed," or any variations thereof, or words of similar import;
(9) Seeking patronage by means of handbills, posters, circulars, newspapers, radio or periodicals, which means set forth more than the name, profession, title, location, phone number and office hours of the optometrist;
(10) Advertising wherein the optometrist employs any form of newspaper, sign, literature or directory professional card or window or public exhibition display of optical materials, handbills, road signs, clock signs, novelties or favors contrary to or violating the code of ethics or any of the other lawful rules and regulations properly promulgated by the state board;
(11) The failure to refer a patient to a physician licensed pursuant to chapter 36-4 if examination of the eye indicates a substantial likelihood of pathology which requires the attention of a physician licensed pursuant to chapter 36-4;
(12) Any conviction of a felony or violation of a Board of Examiners in Optometry rule as determined by the board after notice and hearing pursuant to chapter 1-26;
(13) Consistently misdiagnosing or consistently prescribing improper therapy; or
(14) Failing to hold in professional confidence all information concerning a patient.
Unprofessional conduct, as defined in this section, shall not be the basis for criminal prosecution unless otherwise declared unlawful.
36-7-27. Reinstatement of certificate after revocation.
After one year and upon application and proof that the disqualification has ceased the Board of Examiners may reinstate a person whose certificate has been revoked, if no other basis for denial of the license exists.
36-7-28. Injunction to prevent violation of chapter--Election of remedies.
Any person violating the provisions of this chapter may be enjoined from further violations in the circuit courts of this state in actions to be brought by the State Board of Examiners in Optometry. Such suits may also be brought by any citizen of the state. An action for injunction shall be an alternate to criminal proceedings, and the commencement of one proceeding by the board constitutes an election.
Source: SDC 1939, § 27.0703 (5) as added by SL 1964, ch 85; revised pursuant to SL 1972, ch 15, §§ 3, 4.
36-7-29. Immunity from liability of professional society committee members--Conditions--Official immunity unaffected.
There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed committee of a state professional society, comprised of optometrists licensed to practice their profession in the State of South Dakota, for any act or proceeding undertaken or performed within the scope of the functions of any such committee which is formed to maintain the duly established professional standards of the society or the requirements of law, if such committee member acts without malice, has made a reasonable effort to obtain the facts of the matter as to which he acts, and acts in a reasonable belief that the action taken by him is warranted by the facts known to him after such reasonable effort to obtain facts. "Professional society" includes optometric organizations having as members at least a majority of the eligible licensees in the state. The provisions of this section do not affect the official immunity of an officer or employee of a public corporation or of an optometrist serving on a committee or board or other entity authorized by state or federal law.
Source: SL 1976, ch 231.
36-7-30. Entry and inspection by board--Purpose--Drug records and inventories.
The Board of Examiners, or any of its officers or employees so authorized, may, during business hours, enter and inspect any place where optometry is practiced for the purpose of enforcing this chapter and rules adopted pursuant hereto. Such inspection may include any records and inventories relating to drugs and controlled substances required to be kept under the provisions of chapter 34-20B.
Source: SL 1986, ch 306, § 6.
36-7-31. Use of therapeutic pharmaceutical agents to treat glaucoma or ocular hypertension--Education and examination required.
Before using therapeutic pharmaceutical agents for the treatment of glaucoma or ocular hypertension an optometrist certified for diagnostic and therapeutic pharmaceutical agents shall complete education with emphasis on treatment and management of glaucoma and ocular hypertension provided by an institution accredited by a regional or professional accreditation organization which is recognized or approved by the council on postsecondary accreditation of the United States Office of Education within the Department of Health and Human Services and approved by the Board of Examiners in Optometry by rule promulgated pursuant to chapter 1-26. Upon completion of the education, the optometrist shall pass an oral or written examination approved by the board. The board shall suspend the certification for therapeutic pharmaceutical agents of any optometrist who fails to comply with this section by July 1, 1996.
Source: SL 1994, ch 296, § 7.
Repealed by SL 1994, ch 296, § 8.
Repealed by SL 2003, ch 201, § 2.
36-7-34. Sale of contact lenses without prescription prohibited--Violation as misdemeanor.
No person may sell contact lenses without a valid prescription signed by a licensed optometrist or practitioner licensed pursuant to chapter 36-4. For purposes of this section, the term, contact lenses, includes any contact lens, with or without visual correction. A violation of this section is a Class 1 misdemeanor.