1. (a) Filing complaints. Complaints may be filed with the agency in person at the board's office, or in any written form, including submission of a completed complaint form. The board shall adopt a form as its official complaint form which shall be maintained at the board's office for use at the request of any complainant. At a minimum, all complaints shall contain information necessary for the proper processing of the complaint by the board, including, but not limited to:

   1. (1) complainant's name, address, and phone number;
   2. (2) name, address, and phone number of the optometrist, therapeutic optometrist, or other person, firm, or corporation, if known;
   3. (3) date, time, and place of occurrence of alleged violation; and
   4. (4) complete description of incident giving rise to the complaint.

2. (b) Complaint investigation and disposition.

   1. (1) All complaints received shall be sent to the executive director. The board shall distinguish between categories of complaints as follows:

      1. (A) consumer and patient complaints against optometrists and therapeutic optometrists regarding alleged violations of the Texas Optometry Act or duly promulgated rules or orders;
      2. (B) alleged unauthorized practice of optometry or therapeutic optometry by unlicensed individuals, or by a licensee while a suspension order or restrictive sanction by the board is in effect;
      3. (C) licensure or reinstatement applications;
      4. (D) alleged advertising violations by optometrists, therapeutic optometrists, persons, firms, or corporations; and
      5. (E) licensee complaints regarding violations of the Act resulting in economic harm.
   2. (2) A complaint shall not be dismissed without appropriate consideration. The board and complainant shall be advised of complaint dismissals.

3. (c) Investigation-Enforcement Committee.

   1. (1) The chair shall appoint a committee to consider all complaints filed with board. The committee shall be known as the investigation-enforcement committee and shall be composed of board members who are licensed optometrists or therapeutic optometrists. The executive director shall divide the state into geographic areas, with each member of the investigation-enforcement committee being assigned areas of responsibility within such geographic areas. Each member shall be charged with the responsibility of enforcing the provisions of the Act within the assigned area and is authorized to initiate investigations. The executive director shall supervise all investigations. If, as a result of an investigation within a geographic area, a formal charge is filed against a licensed optometrist, therapeutic optometrist, or other person, firm, or corporation by the investigator, the member from whose area the formal charge originated shall be the member designated to assist in the handling of the prosecution of such formal charge and disciplinary proceeding, if any.
   2. (2) The executive director shall forward the complaint to the member in charge of enforcement in the area of the complaint unless in the judgment of the executive director, unusual circumstances exist such that it is more appropriate that the complaint be under province of another member. The investigation-enforcement committee, or any member thereof, shall have the power to issue subpoenas and subpoenas deuces tecum to compel the attendance of witnesses and the production of books, records, and documents, to issue commissions to take depositions, to administer oaths and to take testimony concerning all matters within the assigned jurisdiction. In addition to subpoena power, each member of the committee may authorize the executive director to investigate an alleged violation.

   3. (3) On receipt of a complaint, the member in charge shall determine:

      1. (A) whether to drop the matter and take no further action;
      2. (B) whether to send a letter to the person charged reciting that a complaint has been received and that while the investigating member cannot determine or pass upon the merits of the complaint without conducting further investigation that the subject of the complaint be asked to review the complaint to ensure that the Act is being complied with, and that if the allegations are true, to cease and desist from the alleged violations or words to that effect;
      3. (C) whether to conduct further investigations, including conducting investigational hearings or informal conferences;
      4. (D) whether to forward to the board the member's determination that a violation of the Act may have occurred together with a recommendation that proceedings be instituted with the State Office of Administrative Hearings to consider cancellation, revocation, or suspension of a license or refusal to issue a license;
      5. (E) whether to forward to the board the member's determination that some person, firm, or corporation may be practicing optometry without a license or otherwise violating the provisions of the Act, along with the member's recommendation that the board notify the attorney general or appropriate district attorney with accompanying request that appropriate action be taken in accordance with law; and
      6. (F) whether to forward to the executive director the member's determination of findings applicable to subparagraphs (D) and (E) of this paragraph for assessment of administrative penalties.

   4. (4) Basic Competence Violations.

      1. (A) The omission of a single, essential finding shall be reason for an investigational hearing or informal conference. The following findings are essential in the initial examination of a patient:

         1. (i) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular microscope;
         2. (ii) internal ophthalmoscopic examination (media, fundus, etc.), using an ophthalmoscope or biomicroscope with fundus condensing lenses; videos and photographs may be used only for documentation and consultation purposes but do not fulfill the internal ophthalmoscopic examination requirement;
         3. (iii) subjective findings, far point and near point; and
         4. (iv) tonometry.

      2. (B) The omission of a total of four significant findings in the initial examination of a patient shall be reason for an investigational hearing or informal conference. The following findings are significant in the initial examination of a patient:

         1. (i) case history (ocular, physical, occupational, and other pertinent information);
         2. (ii) visual acuity;
         3. (iii) static retinoscopy, O.D., O. S., or autorefactor;
         4. (iv) assessment of binocular function;
         5. (v) amplitude or range of accommodation;
         6. (vi) angle of vision, to right and to left.
      3. (C) All other omissions or combination of omissions of findings shall be reason to send noncompliance letters. The absence of the optometrist's or therapeutic optometrist's signature on the prescription shall be considered an omission.
      4. (D) An investigational hearing or informal conference is required when a second alleged violation has occurred. Likewise, if a licensee has had a previous investigational hearing or informal conference, a subsequent complaint may result in a formal disciplinary hearing.

Source Note:The provisions of this §277.1 adopted to be effective August 11, 1983, 8 TexReg 2934; amended to be effective January 7, 1994, 18 TexReg 9931; amended to be effective February 15, 1995, 20 TexReg 647; amended to be effective May 17, 1996, 21 TexReg 3942; amended to be effective May 10, 1998, 23 TexReg 4266; amended to be effective October 1, 1998, 23 TexReg 9744.