CHAPTER 36-7
OPTOMETRISTS
36-7-1 Optometry--Scope of practice.
36-7-1.1 Repealed.
36-7-1.2 Repealed.
36-7-1.3 Definition--Board.
36-7-1.4 Expanded scope of practice--Prerequisites.
36-7-1.5 Expanded scope of practice--Competency demonstration.
36-7-2 36-7-2, 36-7-2.1. Repealed by SL 1985, ch 299, §§ 4, 5.
36-7-3 Composition of Board of Examiners--Qualifications of members--Terms of office.
36-7-3.1 Repealed.
36-7-3.2 Board continued within Department of Health.
36-7-4 Repealed.
36-7-5 Repealed.
36-7-6 Repealed.
36-7-7 36-7-7. Repealed by SL 1985, ch 299, § 7.
36-7-8 Repealed.
36-7-9 36-7-9. Repealed by SL 1985, ch 299, § 9.
36-7-10 Practice of optometry without license--Violation.
36-7-11 Requirements for licensure.
36-7-12 Repealed.
36-7-12.1 Pharmacology studies and clinical experience to be completed--Passing grade on pharmacology portion of national board examination to be attained.
36-7-12.2 Criminal background check of new applicants and licensees under disciplinary investigation.
36-7-13 Licensure through endorsement from another United States jurisdiction--Fee--Promulgation of rules.
36-7-14 Repealed.
36-7-15 Powers of the board--Promulgation of rules.
36-7-15.1 Repealed.
36-7-15.2 Repealed.
36-7-15.3 Repealed.
36-7-16 36-7-16. Repealed by SL 1986, ch 306, § 1.
36-7-17 Practice as individual or partner required--Exception for authorized corporate practice--Violation--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 license in office--Violation.
36-7-19 Repealed.
36-7-20 Annual renewal of license--Revocation on default--Restoration of license.
36-7-20.1 Repealed.
36-7-20.2 Courses of continuing education specified by board--Certification of attendance--Waiver.
36-7-20.3 Repealed.
36-7-20.4 Repealed.
36-7-21 Remission of annual fee while in military service.
36-7-22 36-7-22. Repealed by SL 1992, ch 158, § 79.
36-7-24 Disciplinary action--Grounds.
36-7-25 Unprofessional conduct defined--No basis for criminal prosecution.
36-7-25.1 Prohibited acts.
36-7-26 Appeal from Board of Examiners.
36-7-27 Reinstatement of license after revocation.
36-7-28 Injunction to prevent violation of chapter--Election of remedies.
36-7-29 Repealed.
36-7-30 Entry and inspection by board--Purpose--Drug records and inventories.
36-7-31 Repealed.
36-7-32 36-7-32. Repealed by SL 1994, ch 296, § 8.
36-7-33 36-7-33. Repealed by SL 2003, ch 201, § 2.
36-7-34 Sale of contact lenses without prescription prohibited--Violation as misdemeanor.
36-7-1. Optometry--Scope of practice.
The practice of optometry is declared to be a profession and is defined as:
(1) The examination of the human eye and its appendages;
(2) The employment of any means for the measurement of the powers of visions, or any visual, muscular, neurological, interpretative, or anatomical anomaly of the visual process;
(3) The prescribing or employment of lenses, prisms, frames, mountings, and visual training procedures;
(4) The prescribing or administration, except by injection unless otherwise permitted by this chapter, of any pharmaceutical agent rational to the diagnosis and treatment of the human eye and its appendages;
(5) The employment of any means or method for the correction, remedy, or relief of any insufficiency or abnormal condition of the visual process of the human eye and its appendages, provided the term "any means or method" does not include surgeries, unless otherwise permitted by this chapter;
(6) The removal of a superficial foreign body from the eye;
(7) The prescribing of contact lenses, except by a physician licensed under chapter 36-4;
(8) The use of intense pulsed light for the treatment of dry eye disease; and
(9) Subject to the requirements set forth in § 36-7-1.4:
(a) The intradermal injection of a paralytic agent;
(b) The intralesional injection of a steroid to treat a chalazion;
(c) The use of a local anesthetic in conjunction with the primary removal of a pedunculated skin tag;
(d) The performance of a selective laser trabeculoplasty; and
(e) The performance of a posterior capsulotomy using an yttrium aluminum garnet laser.
Any procedure referenced in this section, when performed by a licensed optometrist, in accordance with this chapter, does not constitute the practice of medicine, for purposes of chapter 36-4.
Source: SDC 1939, § 27.0701; SL 1941, ch 125, § 1; SL 1951, ch 131, § 1; SL 1976, ch 232; SL 1979, ch 253, § 1; SL 1986, ch 306, § 7; SL 1991, ch 303, § 1; SL 1994, ch 296, § 1; SL 2003, ch 201, § 1; SL 2024, ch 155, § 1.
36-7-1.1. Repealed.
Source: SL 1986, ch 306, § 8; SL 1991, ch 303, § 2; SL 1994, ch 296, § 2; SL 2024, ch 155, § 6.
36-7-1.3. Definition--Board.
As used in this chapter, the term, board, means the South Dakota Board of Examiners in Optometry.
Source: SL 2022, ch 147, § 1.
36-7-1.4. Expanded scope of practice--Prerequisites.
Before an optometrist may perform any one or more of the procedures set forth in subdivision 36-7-1(9), the optometrist must provide to the board, at the time and in the manner directed by the board, verifiable evidence that:
(1) The optometrist:
(a) Received a passing score on the laser examination and on the surgical procedures examination, offered by the National Board of Examiners in Optometry; or
(b) Graduated, prior to July 1, 2024, from an optometric school or college approved by the Accreditation Council on Optometric Education or from an optometric school or college approved by the board;
(2) The optometrist satisfactorily completed a course that:
(a) Is at least thirty-two hours in duration;
(b) Is approved by the board;
(c) Includes content related to each procedure set forth in subdivision 36-7-1(9); and
(d) Is proctored by an ophthalmologist or is proctored by an optometrist who is authorized to perform all of the procedures set forth in subdivision 36-7-1(9) by the optometric licensing board of a state in which a qualified optometrist may perform all of the procedures; and
(3) The optometrist has demonstrated competency in accordance with the performance criteria set forth in § 36-7-1.5.
The board shall review the evidence required by this section and upon verification of an optometrist's compliance with the requirements, authorize the optometrist to perform one or more of the procedures set forth in subdivision 36-7-1(9). The board shall develop and implement a system for documenting any actions under this section.
Source: SL 2024, ch 155, § 2.
36-7-1.5. Expanded scope of practice--Competency demonstration.
The demonstration of competency required in accordance with subdivision 36-7-1.4(3), must occur in the presence and under the direct supervision of an ophthalmologist licensed in this state, or in the presence and under the direct supervision of an optometrist licensed in this state and authorized by the board, pursuant to § 36-7-1.4, to perform all of the procedures set forth in subdivision 36-7-1(9).
The demonstration of competency with respect to the intradermal injection of a paralytic agent, the intralesional injection of a steroid to treat a chalazion, the use of a local anesthetic in conjunction with the primary removal of a pedunculated skin tag, and the performance of a selective laser trabeculoplasty, must each occur on at least five human eyes.
The demonstration of competency with respect to the performance of a posterior capsulotomy using an yttrium aluminum garnet laser must occur on at least ten human eyes.
The supervising ophthalmologist or optometrist shall notify the board when competency has been demonstrated, in accordance with this section. The notification must occur at the time and in the manner determined by the board.
Source: SL 2024, ch 155, § 3.
36-7-3. Composition of Board of Examiners--Qualifications of members--Terms of office.
The Governor shall appoint five members to the board. Four members must be optometrists in active practice in this state for at least five years preceding the appointment. One member must be a representative of the public who is a resident of this state and who is not associated with, or financially interested in, the practice or business of optometry. 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.
Source: SDC 1939, § 27.0702; revised pursuant to SL 1973, ch 2, § 58; SL 1986, ch 306, § 13; SL 1989, ch 323; SL 1994, ch 296, § 3; SL 2005, ch 199, § 18; SL 2022, ch 147, § 2.
36-7-3.2. Board continued within Department of Health.
The board shall continue within the Department of Health.
Source: SL 1973, ch 2, § 56 (q); SL 2003, ch 272, § 41; SL 2022, ch 147, § 3.
36-7-5. Repealed.
Source: SDC 1939, § 27.0703; SL 1951, ch 131, § 2; revised pursuant to SL 1972, ch 15, § 4; SL 2022, ch 147, § 19.
36-7-8. Repealed.
Source: SDC 1939, § 27.0709; SL 1947, ch 122, § 3; SL 1951, ch 131, § 5; SL 1967, ch 99; SL 1985, ch 299, § 8; SL 2022, ch 147, § 21.
36-7-10. Practice of optometry without license--Violation.
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.
Source: SDC 1939, § 27.0708; SL 1977, ch 190, § 153; SL 2022, ch 147, § 4.
36-7-11. Requirements for licensure.
The board may issue a license to an applicant that:
(1) Submits an application on a form prescribed by the board;
(2) Pays the application fee set by rules promulgated by the board pursuant to chapter 1-26, not to exceed one hundred seventy-five dollars;
(3) Is eighteen years or older, and a citizen of the United States or a resident of South Dakota;
(4) Is of good moral character;
(5) Is a graduate of an optometric school or college approved by the Accreditation Council on Optometric Education or the board;
(6) Has passed all required sections of a national board examination approved by the board; and
(7) Has committed no act for which disciplinary action may be justified.
Source: SDC 1939, § 27.0704; SL 1941, ch 125, § 2; SL 1947, ch 122, § 1; SL 1983, ch 270, § 1; SL 2020, ch 168, § 4; SL 2022, ch 147, § 5.
36-7-12. Repealed.
Source: SDC 1939, § 27.0704 (5); SL 1941, ch 125, § 2; SL 1947, ch 122, § 1; SL 1977, ch 292, § 2; SL 1985, ch 299, § 1; SL 1986, ch 302, § 67; SL 2008, ch 191, § 14; SL 2022, ch 147, § 22.
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 a national board examination approved by the board.
Source: SL 1986, ch 306, § 12; SL 2022, ch 147, § 6.
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.
The board may issue a license to practice as an optometrist by endorsement to a person who has been licensed as an optometrist under the laws of another state or territory under United States jurisdiction if:
(1) The person submits an application and pays the required fee set by rules promulgated by the board pursuant to chapter 1-26, not to exceed one hundred seventy-five dollars;
(2) In the opinion of the board, the applicant meets the qualifications required of an optometrist in this state at the time of the applicant's original licensure; and
(3) The applicant has engaged in the practice of optometry for at least five consecutive years immediately preceding application under this section.
The board may require additional education, testing, or training before granting licensure if competency of any applicant is in question. Any applicant who has been denied a license by the board must reapply and meet all initial licensure requirements before the board may grant licensure.
Source: SDC 1939, § 27.0704 (6); SL 1941, ch 125, § 2; SL 1951, ch 131, § 3; SL 1986, ch 306, § 2; SL 2006, ch 196, § 1; SL 2008, ch 191, § 15; SL 2022, ch 147, § 7.
36-7-14. Repealed.
Source: SDC 1939, § 27.0705; revised pursuant to SL 1972, ch 15, § 3; SL 2022, ch 147, § 23.
36-7-15. Powers of the board--Promulgation of rules.
The board may:
(1) Promote the safe and qualified practice of optometry;
(2) Promulgate rules pursuant to chapter 1-26 to govern standards for the safe and qualified practice of optometry, to adopt a code of ethics or professional conduct, and to establish criteria for advertising by optometrists;
(3) Prepare an annual budget;
(4) Expend funds for administrative, legal, consultative, and other necessary services from fees received by the board;
(5) Examine, license, endorse, and renew the licenses of qualified applicants;
(6) Define what constitutes a recognized optometric school;
(7) Establish the minimum amount and type of continuing education to be required of each optometrist seeking renewal of a license; and
(8) Administer oaths and take testimony pursuant to §§ 1-26-19.1 and 1-26-19.2.
Source: SDC 1939, § 27.0703; SL 1951, ch 131, § 2; SL 1973, ch 243, § 1; SL 1979, ch 252, § 1; SL 2022, ch 147, § 8.
36-7-15.1. Repealed.
Source: SL 1979, ch 253, § 2; SL 1986, ch 306, § 9; SL 1994, ch 296, § 4; SL 2022, ch 147, § 24.
36-7-15.2. Repealed.
Source: SL 1979, ch 253, §§ 3, 5; SL 1985, ch 299, § 2; SL 1994, ch 296, § 5; SL 2008, ch 191, § 16; SL 2013, ch 173, § 1; SL 2022, ch 147, § 25.
36-7-15.3. Repealed.
Source: SL 1986, ch 306, § 10; SL 1994, ch 296, § 6; SL 2013, ch 173, § 2; SL 2022, ch 147, § 26.
36-7-17. Practice as individual or partner required--Exception for authorized corporate practice--Violation--Optometrist not precluded from serving as officer or director of health maintenance organization.
Every optometrist in this state shall furnish the board satisfactory evidence that the licensee practices optometry as a profession, in an individual personal capacity under the optometrist's own name or as a partner of another licensed optometrist and not as a corporation, limited liability company or agent, employee, officer, member, or partner of a corporation or limited liability company, 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 precludes 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, a preferred provider organization, individual practices association, or other form of entity whatever established for group health care purposes.
Source: SDC 1939, § 27.0704 (7); SL 1941, ch 125, § 2; SL 1972, ch. 249, § 24; SL 1987, ch 269, § 1; SL 1992, ch 158, § 77; SL 1993, ch 344, § 39J; SL 2022, ch 147, § 9.
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 license in office--Violation.
Each optometrist shall conspicuously display any license, and subsequent proof of renewal, issued by the board under this chapter at the optometrist's primary place of practice. A violation of this section is a Class 2 misdemeanor.
Source: SDC 1939, § 27.0706; SL 1947, ch 122, § 2; SL 1992, ch 158, § 78; SL 2013, ch 173, § 3; SL 2022, ch 147, § 10.
36-7-19. Repealed.
Source: SDC 1939, § 27.0703 (3) as added by SL 1951, ch 131, § 2; revised pursuant to SL 1972, ch 15, § 4; SL 2022, ch 147, § 27.
36-7-20. Annual renewal of license--Revocation on default--Restoration of license.
Each optometrist licensed pursuant to this chapter shall apply, on a form approved by the board, for a renewal of the license. The renewal must be issued by the board upon payment of a fee set by the board by rule promulgated pursuant to chapter 1-26, not to exceed three hundred dollars, and upon verification that the optometrist has met the requirements for continuing education as provided in § 36-7-20.2. The renewal must be in the form of a receipt acknowledging payment of the required fee and signed by the secretary of the board.
Failure to renew the license on or before October first of each year constitutes a forfeiture of the optometrist's license. The license may be renewed at the discretion of the board upon application and payment of the fee required by § 36-7-11, and a late fee set by the board by rules promulgated pursuant to chapter 1-26, not to exceed one hundred dollars for each month the renewal is late.
Source: SDC 1939, § 27.0709; SL 1947, ch 122, § 3; SL 1951, ch 131, § 5; SL 1967, ch 99; SL 1973, ch 243, § 3; SL 1979, ch 252, § 2; SL 1985, ch 299, § 3; SL 1986, ch 302, § 68; SL 2022, ch 147, § 11.
36-7-20.2. Courses of continuing education specified by board--Certification of attendance--Waiver.
The board shall establish requirements for continuing education by rules promulgated pursuant to chapter 1-26. Any continuing education course must be certified by the Council of Optometric Practitioner Education or approved by the board. Attendance at any course must be submitted by each optometrist when renewing a license pursuant to § 36-7-20. The board may waive any or all of this requirement in case of certified illness or undue hardship.
Source: SL 1973, ch 243, § 2; SL 1979, ch 252, § 5; SL 2022, ch 147, § 12.
36-7-21. Remission of annual fee while in military service.
The board may remit the license fee of any optometrist on active duty in the armed forces of the United States.
For the purposes of this section, the term, active duty in the armed forces, means full-time duty in the active military services and reserve components of the United States, including the National Guard and Reserve, while serving under published orders for active duty or full-time training.
Source: SDC 1939, § 27.0709 as added by SL 1951, ch 131, § 5; SL 1967, ch 99; SL 2022, ch 147, § 13.
36-7-24. Disciplinary action--Grounds.
The board may, in compliance with chapter 1-26, impose disciplinary sanctions on an optometrist for:
(1) Conviction of a felony;
(2) Obtaining, or attempting to obtain, a license by fraudulent misrepresentation;
(3) Malpractice;
(4) Continued practice when knowingly having an infectious or contagious disease, or after sustaining a physical or mental disability that renders further practice potentially harmful or dangerous;
(5) Use of alcohol or other substances that renders the optometrist unfit to practice with reasonable skill and safety;
(6) Engaging in any procedure set forth in subdivision 36-7-1(9), prior to meeting the requirements of this chapter;
(7) Unprofessional conduct, as defined in § 36-7-25; or
(8) Failure to submit to or cooperate with a criminal background check requested by the board under § 36-7-12.2.
Source: SDC 1939, § 27.0707; SL 1951, ch 131, § 4; revised pursuant to SL 1972, ch 15, § 4; SL 2005, ch 199, § 19; SL 2009, ch 179, § 2; SL 2013, ch 173, § 4; SL 2022, ch 147, § 14; SL 2024, ch 155, § 4.
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 by any licensed optometrist or any person or corporation;
(3) Violating any provision of this chapter or any rule promulgated by the board;
(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 of optometric practice, treatment, advice, or costs in which untruthful, improbable, misleading, or impossible statements are made;
(8) Failure to maintain adequate safety and sanitary conditions, or meet the requirements of an optometric clinic in accordance with the standards set forth in this chapter and any rule promulgated by the board in accordance with chapter 1-26;
(9) Inappropriate prescribing to any person in quantities and under circumstances apparent to the board that the prescription was not made for legitimate medicinal purposes related to the practice optometry, or prescribing in a manner or in amounts that, in the opinion of the board, endanger the wellbeing of a patient or the public in general;
(10) 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 that requires the attention of a physician;
(11) Any conviction of a criminal offense related to the practice of optometry;
(12) Consistently misdiagnosing or consistently prescribing improper therapy;
(13) Failing to hold in professional confidence all information concerning a patient;
(14) Failing to comply with state and federal laws on keeping records regarding possessing and dispensing controlled substances or habit-forming drugs;
(15) Falsifying the records of a patient;
(16) Exercising influence within the optometrist-patient relationship for the purpose of engaging a patient in sexual activity. For purposes of this subdivision, the patient is presumed incapable of giving free, full, and informed consent to sexual activity with the optometrist;
(17) Engaging in sexual harassment;
(18) Any practice or conduct that tends to constitute a danger to the health, welfare, or safety of patients or the public, or engaging in conduct that is unbecoming of an optometrist;
(19) Discipline by the licensing board of another state or territory under United States jurisdiction if the violation is also a violation of this chapter or any rule promulgated by the board;
(20) Not reporting discipline by a licensing board of another state or territory under United States jurisdiction to the board; and
(21) Not reporting a conviction of a criminal offense arising out of the practice of optometry to the board.
Unprofessional conduct, as defined in this section, may not be the basis for criminal prosecution unless otherwise declared unlawful.
Source: SDC 1939, § 27.0707; SL 1951, ch 131, § 4; SL 1979, ch 253, § 6; SL 1983, ch 270, § 2; SL 2013, ch 173, § 5; SL 2022, ch 147, § 15.
36-7-25.1. Prohibited acts.
Nothing in this chapter may be construed to allow the performance, by an optometrist, of:
(1) Intraocular injections;
(2) Intraocular surgery; or
(3) Refractive surgery.
Source: SL 2024, ch 155, § 5.
36-7-26. Appeal from Board of Examiners.
An appeal from the decision of the Board of Examiners may be taken as provided by chapter 1-26.
Source: SDC 1939, § 27.0707; SL 1951, ch 131, § 4; revised pursuant to SL 1972, ch 15, § 4.
36-7-27. Reinstatement of license after revocation.
After one year, and upon application and proof that the disqualification has ceased, the board may reinstate a person whose license has been revoked, if no other basis for denial of the license exists.
Source: SDC 1939, § 27.0707; SL 1951, ch 131, § 4; SL 2013, ch 173, § 6; SL 2022, ch 147, § 16.
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.
36-7-30. 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.
36-7-34. 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.
Source: SL 2010, ch 189, § 1.
