(a)

1. (1) The following acts on the part of any licensed optometrist shall be deemed by the State Board of Optometry to be unprofessional conduct:

   1. (A) The violation of any of the provisions of Acts 1941, No. 94, as amended by:

(i) Acts 1957, No. 102;

1. (ii) Acts 1979, No. 710;

   1. (iii) Acts 1985, No. 875;

      1. (iv) Acts 1987, No. 101; and
      2. (v) Acts 1997, Nos. 176 and 186;
   2. (B) The violation of any of the rules promulgated by the board;
   3. (C) For any optometrist to fraudulently represent or misrepresent any fact concerning his or her professional activities toward his or her patient;
   4. (D) False or fraudulent representation, or misrepresentation, of the quality or effectiveness of materials used by such optometrist;
   5. (E) For any optometrist to treat or prescribe for a patient when he or she is grossly incompetent to do so;
   6. (F) For any optometrist to make an exorbitant or unreasonable charge for materials or services rendered or furnished by him or her to his or her patients;

   7. (G) For any optometrist to be:

      1. (i) Convicted of a felony; or
      2. (ii)

(b) (b) “Impaired” means the presence of active alcoholism, substance (drug) abuse, and/or any other mental illness resulting in professional incompetence (i.e., the inability or failure of practitioner to practice optometry with reasonable skill and safety);

1. (H) For any optometrist to accept employment from an unlicensed person or corporation to engage in the practice of optometry;

   1. (I) For any optometrist to advertise in any manner:

      1. (i) Any fraudulent, false, or misleading statement as to the skill or method of his or her practice; or
      2. (ii) That tends to deceive or mislead the public;
   2. (J) For any optometrist to advertise or represent that he or she possesses a peculiar or particular technique or degree of training that makes him or her superior to or more effective in the practice of optometry than other optometrists;
   3. (K) For any optometrist to fail to keep secret and inviolate all information of a personal nature obtained by him or her while acting in his or her professional capacity;
   4. (L) For any optometrist to exaggerate the visual defects of a patient, but on the other hand must reveal in a fair and candid manner the actual condition of the patient, if requested to do so;

   5. (M)

      1. (i) For any optometrist to use an unprofessional display sign of any type.
      2. (ii) Provided, however, paint, gold-leaf, or other forms of lettering on windows, doors, or walls may be used setting forth the name and title “Optometrist” or “Doctor of Optometry” or the abbreviation “O.D.”, provided further, due to multiple practices when an O.D. does one thing and the other does another, and further, due to offices located in shopping centers and located away from the street, it would be considered professional and ethical for a sign in small letters to be placed near the street, also on the building where office is located.
      3. (iii) Be it further considered professional, due to professional corporation act, that the sign may read as follows:

(b) (b) (Full Name) - O.D. or Doctor of Optometry;

1. (c) (c) (Full Name) - Optometrist, O.D., or Doctor of Optometry (not all); or

   1. (d) (d) If incorporated, P.A., P.C., or LTD follows O.D. or incorporated name;
   2. (N) For any optometrist to practice under any name other than his or her own proper name; and
   3. (O) The receipt, directly or indirectly, of any rebate, commission, refund, or discount from any person, firm, or corporation who supplies and/or dispenses ophthalmic materials directly to the optometrist’s patient, whether said rebate, commission, refund, or discount in the form of money, property, or other financial considerations, whether it be based upon a percentage or upon the difference between so-called wholesale and retail price, or otherwise.
2. (2) It is determined by the board that the preceding acts are unethical and constitute unprofessional conduct, and shall be discontinued forthwith under penalty of revocation or suspension of license and/or fines for violation thereof.

(b)

1. (1) Arkansas Code § 17-90-305 provides that the board may discipline an optometrist for exhibiting unprofessional conduct.

2. (2) Any prescription written by a licensed optometrist in the State of Arkansas will contain and comply with the following:

   1. (A) The name of the prescribing optometrist must be printed on each prescription in a legible manner;
   2. (B) The address and telephone number of the prescribing optometrist must be placed on the type printed form on the prescription;
   3. (C) The state license number as issued by the board to the prescribing optometrist must be clearly written on the prescription;
   4. (D) The prescribing optometrist must place his or her signature on each prescription;
   5. (E) The body of the prescription must be legible in order to clearly communicate the quantity and strength of the substance or item to be prescribed as well as any instructions for a medication or use of the item in order to ensure safety of the patient;
   6. (F) That the name of the patient for whom the prescription is written must be clearly printed on the prescription; and
   7. (G) The date that the prescription is given to the patient must be written on the prescription.

3. (3) An optometrist would be considered as exhibiting unprofessional conduct if he or she does not comply with the above state requirements in writing prescriptions.

   1. (c)
4. (1) An optometrist shall have twenty-four-hour access to his or her practice locations and patient records, so that he or she may provide emergency services to patients when necessary.

5. (2) A failure to have such access would be considered as unprofessional conduct and of a danger and harm to his or her patients.

   1. (d)
6. (1) Any optometrist who examines a patient and creates a record of said patient is responsible for the security and custody of said record.
7. (2) Because of the confidential nature and relationship between the examining optometrist and patient, the examination record (including the patient’s name, address, age, occupation, and findings and pertinent facts) discovered and disclosed during the course of such examination, as well as the record of professional services rendered and fees charged therefore, shall be the exclusive property of the optometrist who rendered the professional services to said patient.

8. (3)

   1. (A) Patient records described aforesaid are the property and responsibility of the examining optometrist, except when the examining optometrist is employed by an optometrist or ophthalmologist.
   2. (B) In this circumstance, the patient records are the property and responsibility of the optometrist or ophthalmologist who employs the optometrist.
9. (4) If an optometrist is not employed by an optometrist or ophthalmologist and temporarily takes the place of an optometrist, then any records created by him or her shall be removed and secured by him or her at the completion of that day’s practice.

10. (5)

    1. (A) Access to patient records is available only to:

       1. (i) The optometrist who created the record;
       2. (ii) The optometrist or ophthalmologist who employs the optometrist;
       3. (iii) The patient or the person designated by the patient in writing to see said records;
       4. (iv) Employees under the direct personal supervision and control of said optometrist; or
       5. (v) Those individuals or entities authorized by law or federal regulation to receive the same.
    2. (B) Any optometrist who is the custodian of a patient record and ceases to practice at a particular location must notify said patient where his or her personal record may be obtained.

    3. (C)

       1. (i) Before any record of a patient is destroyed, said patient must be:

(b) (b) Given thirty (30) days to respond before said record is destroyed.

1. (ii) However, if a patient has not been examined for five (5) years or more, said patient’s record may be destroyed by the examining optometrist without notifying said patient.

   1. (D)

      1. (i) Any patient is entitled to a copy of his or her patient records and may request the same.
      2. (ii)

(b) (b) Provided, however, a reasonable recovery fee for stored records may be added to the photocopying charge.

1. (c) (c) Provided, further, this section shall not prohibit reasonable fees for a narrative report or medical review of a record when performed by the optometrist subject to the request.

   1. (E) If an optometrist renders treatment to a patient in a hospital or nursing home, he or she may elect to utilize the record keeping system of the facility if he or she determines that it is accurate and secure and can be available to the optometrist or the patient.

   2. (F) It is unprofessional conduct not to comply with this subsection, that is, for an optometrist not to:

      1. (i) Properly secure, store, and protect the privacy of a patient record; and
      2. (ii) Distribute copies of those said records to the patient or to the person designated by the patient when requested by the patient.

(e)

1. (1)

   1. (A) Arkansas Code § 17-90-305(b)(2) states that in addition to those acts that may be prescribed by the board as unprofessional conduct, the following shall be deemed by the board to be unprofessional: The acceptance of employment, by a licensed optometrist from an optometrist not licensed in Arkansas, or an unlicensed person, firm, or corporation engaged in any business or profession to assist it, him or her, or them in practicing optometry in this state.
   2. (B) Arkansas Code § 17-90-104(4) provides that it is unlawful “for any person, firm, corporation, or partnership not having a license to engage in the practice of optometry.”
   3. (C) Arkansas Code § 17-90-104(5) states that it is unlawful “for any person, partnership, or corporation to employ any optometrist, physician, or surgeon to assist it in the unlawful practice of optometry. However, a licensed optometrist or partnership composed of licensed optometrists may employ other licensed optometrists in practicing optometry.”
   4. (D) Arkansas Code § 17-90-104(6) provides that it is unlawful “for an optometrist, physician, or surgeon to accept employment from an unlicensed person, firm, partnership, corporation, or in any manner to assist it or them in the unlawful practice of optometry.”
2. (2) If warranted, the board shall open an investigation and shall subpoena if necessary such evidence, documents, and persons so as to make a determination on whether a formal hearing shall be held before the board.
3. (3) For the board to make a determination on whether a licensed optometrist is employed by a nonlicensed person, corporation, or entity in the practice of optometry, the board shall take into consideration all evidence of control by the unlicensed person, corporation, or entity.
4. (4) The board shall adopt as its guide, where necessary, the Internal Revenue Service Twenty-Factor Test, as may be amended, found in Rev. Rul. 87-41, 1987-1 C.B. 296, and further, may use federal or Arkansas state statutes, the Code of Federal Regulations, or Internal Revenue Service opinion letters or revenue rulings to reach their decision.
5. (5) Should the board, in an administrative hearing, determine that a violation of Arkansas Code § 17-90-104(5) or § 17-90-104(6) has occurred, the board may levy such sanctions against the licensee and unlicensed entity as provided by law in the practice act.