SF 1700

as introduced - 89th Legislature (2015 - 2016) Posted on 03/30/2016 09:10am

A bill for an act
relating to health insurance; limiting certain types of provisions in vision care
insurance agreements; modifying definitions of ophthalmic goods and services;
regulating kiosks; imposing disciplinary action for optometrists and physicians;
amending Minnesota Statutes 2014, sections 145.711; 145.714; 147.091,
subdivision 1; 148.56, subdivision 3; 148.57, subdivision 3; proposing coding for
new law in Minnesota Statutes, chapters 62A; 145.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [62A.67] VISION CARE SERVICES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the terms in this
subdivision have the meanings given them.
new text end

new text begin (b) "Contractual discount" means a percentage reduction from a vision care
provider's usual and customary rate for providing covered services and materials required
under a participating provider agreement.
new text end

new text begin (c) "Covered service" means any service or material for which:
new text end

new text begin (1) reimbursement from the vision care insurance or health plan is provided for by
an insured's vision care insurance plan or health plan contract subject to the application of
the vision care insurance or health plan deductibles, co-payments, or co-insurance; or
new text end

new text begin (2) a reimbursement would be available to the application of any contractual
limitations of deductibles or co-payments required under the vision care discount plan
co-insurance.
new text end

new text begin Covered service does not include any services or materials covered or provided at a
nominal or de minimus rate.
new text end

new text begin (d) "Health carrier" has the meaning given in section 62A.011, subdivision 2.
new text end

new text begin (e) "Health plan" has the meaning given in section 62A.011, subdivision 3.
new text end

new text begin (f) "Material" includes, but is not limited to, lenses, devices containing lenses,
prisms, lens treatments and coatings, contact lenses, orthoptics, vision training, and any
prosthetic device necessary to correct, relieve, or treat any defect or abnormal condition
of the human eye or its adnexa.
new text end

new text begin (g) "Participating provider agreement" includes a health benefit plan, vision care
insurance, or a vision care discount plan.
new text end

new text begin (h) "Vision care insurance" means an integrated health benefit plan or vision care
insurance policy or contract that provides vision benefits for covered services or materials.
new text end

new text begin (i) "Vision care provider" means an optometrist licensed under sections 148.52 to
148.62 or an ophthalmologist licensed under chapter 147.
new text end

new text begin Subd. 2. new text end

new text begin Prohibitions. new text end

new text begin (a) No contract or health plan issued or renewed on or after
January 1, 2016, between any vision care provider and health carrier or provider of vision
care insurance shall contain any provision that requires the vision care provider to:
new text end

new text begin (1) provide services or materials to an insured under the vision care insurance or
health plan at a fee limited or set by the vision care insurance plan or health plan unless
the services or materials are reimbursed as covered services under the contract; or
new text end

new text begin (2) participate in a vision care insurance plan as a condition to participate in any
other health plan or vision care plan, regardless of whether the vision care plan is a plan of
insurance or a discount program that is not an insurance plan.
new text end

new text begin (b) No vision care provider shall charge more for services and materials that are not
covered services under vision care insurance than the vision care provider's usual and
customary rate for those services and materials.
new text end

new text begin (c) No vision care insurance policy contract covered by this section shall change the
terms, discounts, or rates provided in the contract without the concurrence and agreement
of the vision care provider at the time of the change.
new text end

new text begin (d) No vision care insurance policy that provides covered services for materials shall
have the effect, directly or indirectly, of limiting the choice of sources and suppliers of the
materials by a patient of a vision care provider.
new text end

Sec. 2.

Minnesota Statutes 2014, section 145.711, is amended to read:

145.711 DEFINITIONS.

Subdivision 1.

Application.

For purposes of sections 145.711 to 145.714, the
following definitions apply.

new text begin Subd. 1a. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of the
Department of Health.
new text end

new text begin Subd. 1b. new text end

new text begin Contact lenses. new text end

new text begin "Contact lenses" means any lens placed directly on the
surface of the eye, regardless of whether or not it is intended to correct a visual defect.
Contact lenses include, but are not limited to, all cosmetic, therapeutic, and corrective
lenses.
new text end

Subd. 2.

Dispensing.

"Dispensing" means the retail delivery of ophthalmic goods to
a patient.

new text begin Subd. 2a. new text end

new text begin Eye examination or evaluation. new text end

new text begin "Eye examination or evaluation" means
an assessment of the ocular health and visual status of a patient that does not consist
solely of objective refractive data or information generated by an automated testing
device, including an autorefractor, in order to establish a medical diagnosis or for the
establishment of a refractive error.
new text end

new text begin Subd. 2b. new text end

new text begin Eyeglasses. new text end

new text begin "Eyeglasses" means an optical instrument or device worn or
used by an individual that has one or more lenses designed to correct or enhance vision,
addressing the visual needs of the individual wearer and are also known as glasses or
spectacles, including those that may be adjusted by the wearer to achieve different types or
levels of visual correction or enhancement. This excludes optical instruments or devices
not intended to correct or enhance vision or that are sold without consideration of the
visual status of the individual who will use the optical instrument or device.
new text end

Subd. 3.

Fitting.

"Fitting" means the performance of mechanical procedures and
measurements necessary to adapt and fit contact lenses after an eye examination and
supervision of the trial wearing of the contact lenses, which may require revisions during
the trial period.

new text begin Subd. 3a. new text end

new text begin Kiosk. new text end

new text begin "Kiosk" means automated equipment or an application designed to
be used on a phone, computer, or Internet-based device that can be used either in person
or remotely to conduct an eye examination or evaluation.
new text end

Subd. 4.

Ophthalmic goods.

"Ophthalmic goods" means eyeglasses, one or more
eyeglass components for which a prescription is required, or contact lenses.

Subd. 5.

Ophthalmic services.

"Ophthalmic services" means the measuring, fitting,
adjusting, fabricating, or prescribing of ophthalmic goods after an eye examination.

Subd. 6.

Optometrist.

"Optometrist" means an individual licensed to practice
optometry under sections 148.52 to 148.62.

new text begin Subd. 6a. new text end

new text begin Over-the-counter spectacles. new text end

new text begin "Over-the-counter spectacles" means
eyeglasses or lenses for the correction of vision that may be sold by any person, firm, or
corporation at retail without a prescription.
new text end

Subd. 7.

Patient.

"Patient" means a person who has had an eye examination.

Subd. 8.

Prescription.

"Prescription" means a written new text begin or electronic new text end directive
from an optometrist or physician for new text begin eyeglasses or new text end contact lenses deleted text begin that must include the
manufacturer's brand name, power, base curve, deleted text end new text begin based on an eye examination or evaluation
that corrects refractive error. The prescription must contain new text end the name and telephone
number of the prescribing optometrist or physician, patient's name, and the expiration
date of the prescription. If applicable, the prescription new text begin must include the manufacturer's
brand name, power, base curve, and new text end may also include diameter, axis, add power, cylinder,
peripheral curve, optical zone, or center thickness. new text begin A prescription for eyeglasses or contact
lenses shall not be made based on telemedicine services or based solely on the refractive
error of the human eye or be generated by a kiosk.
new text end

Subd. 9.

Physician.

"Physician" means an individual licensed to practice medicine
under chapter 147.

new text begin Subd. 10. new text end

new text begin Provider. new text end

new text begin "Provider" means an individual licensed to practice optometry
under sections 148.52 to 148.62, or an individual licensed to practice medicine under
chapter 147.
new text end

Sec. 3.

new text begin [145.7121] PRESCRIPTIONS; DISPENSING.
new text end

new text begin (a) No person in this state may dispense eyeglasses or contact lenses to a patient
without a valid prescription from a provider.
new text end

new text begin (b) A prescription for eyeglasses or contact lenses in this state shall not be made
based on telemedicine services or based solely on the refractive error of the human eye or
be generated by a kiosk.
new text end

new text begin (c) Providers must release a prescription to a patient. The final prescription shall
take into consideration any medical findings and any refractive error discovered during
the examination.
new text end

Sec. 4.

new text begin [145.7132] KIOSKS; PENALTY.
new text end

new text begin (a) No person shall operate a kiosk in this state unless it meets the following
requirements:
new text end

new text begin (1) the kiosk is approved by the United States Food and Drug Administration for the
intended use;
new text end

new text begin (2) the kiosk is designed and operated in a manner that provides accommodations
required by the Americans with Disabilities Act and the Minnesota Human Rights Act;
new text end

new text begin (3) the kiosk and accompanying technology used for the collection and transmission
of information and data, including photographs and scans, must gather and transmit
protected health information in compliance with the federal Health Insurance Portability
and Accountability Act;
new text end

new text begin (4) the procedure for which the kiosk is used has a recognized current procedural
terminology (CPT) code;
new text end

new text begin (5) the physical location of the kiosk prominently displays the name and state license
number of the individual who will read and interpret the diagnostic information and data,
including photographs and scans;
new text end

new text begin (6) diagnostic information and data, including photographs and scans gathered by
the automated equipment, is read and interpreted by a provider as defined in section
145.711, subdivision 10;
new text end

new text begin (7) the owner or lessee of the automated equipment maintains liability insurance
in an amount adequate to cover claims made by individuals diagnosed or treated based
on information and data, including photographs and scans, generated by the automated
equipment; and
new text end

new text begin (8) the owner or lessee of the kiosk registers in the manner required by the
commissioner.
new text end

new text begin (b) Any person or entity who believes that a violation of this section has occurred or
has been attempted may make a written complaint to the commissioner.
new text end

Sec. 5.

Minnesota Statutes 2014, section 145.714, is amended to read:

145.714 ENFORCEMENT.

deleted text begin Failure deleted text end new text begin (a) Health professionals who fail new text end to comply with sections 145.711 to deleted text begin 145.713 deleted text end new text begin
145.7132 new text end shall be deleted text begin grounds for deleted text end new text begin subject to new text end disciplinary action by the Board of Optometry or
the Board of Medical Practice.

new text begin (b) Owners and lessees who operate kiosks in this state who fail to register or fail to
comply with the provisions of section 145.7132 shall be subject to regulatory sanctions
imposed by the commissioner.
new text end

Sec. 6.

Minnesota Statutes 2014, section 147.091, subdivision 1, is amended to read:

Subdivision 1.

Grounds listed.

The board may refuse to grant a license, may
refuse to grant registration to perform interstate telemedicine services, or may impose
disciplinary action as described in section 147.141 against any physician. The following
conduct is prohibited and is grounds for disciplinary action:

(a) Failure to demonstrate the qualifications or satisfy the requirements for a license
contained in this chapter or rules of the board. The burden of proof shall be upon the
applicant to demonstrate such qualifications or satisfaction of such requirements.

(b) Obtaining a license by fraud or cheating, or attempting to subvert the licensing
examination process. Conduct which subverts or attempts to subvert the licensing
examination process includes, but is not limited to: (1) conduct which violates the
security of the examination materials, such as removing examination materials from the
examination room or having unauthorized possession of any portion of a future, current, or
previously administered licensing examination; (2) conduct which violates the standard of
test administration, such as communicating with another examinee during administration
of the examination, copying another examinee's answers, permitting another examinee
to copy one's answers, or possessing unauthorized materials; or (3) impersonating an
examinee or permitting an impersonator to take the examination on one's own behalf.

(c) Conviction, during the previous five years, of a felony reasonably related to the
practice of medicine or osteopathy. Conviction as used in this subdivision shall include
a conviction of an offense which if committed in this state would be deemed a felony
without regard to its designation elsewhere, or a criminal proceeding where a finding or
verdict of guilt is made or returned but the adjudication of guilt is either withheld or
not entered thereon.

(d) Revocation, suspension, restriction, limitation, or other disciplinary action
against the person's medical license in another state or jurisdiction, failure to report to the
board that charges regarding the person's license have been brought in another state or
jurisdiction, or having been refused a license by any other state or jurisdiction.

(e) Advertising which is false or misleading, which violates any rule of the board,
or which claims without substantiation the positive cure of any disease, or professional
superiority to or greater skill than that possessed by another physician.

(f) Violating a rule promulgated by the board or an order of the board, a state, or
federal law which relates to the practice of medicine, or in part regulates the practice of
medicine including without limitation sections 604.201, 609.344, and 609.345, or a state
or federal narcotics or controlled substance law.

(g) Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm
the public, or demonstrating a willful or careless disregard for the health, welfare or safety
of a patient; or medical practice which is professionally incompetent, in that it may create
unnecessary danger to any patient's life, health, or safety, in any of which cases, proof
of actual injury need not be established.

(h) Failure to supervise a physician assistant or failure to supervise a physician
under any agreement with the board.

(i) Aiding or abetting an unlicensed person in the practice of medicine, except that
it is not a violation of this paragraph for a physician to employ, supervise, or delegate
functions to a qualified person who may or may not be required to obtain a license or
registration to provide health services if that person is practicing within the scope of that
person's license or registration or delegated authority.

(j) Adjudication as mentally incompetent, mentally ill or developmentally disabled,
or as a chemically dependent person, a person dangerous to the public, a sexually
dangerous person, or a person who has a sexual psychopathic personality by a court of
competent jurisdiction, within or without this state. Such adjudication shall automatically
suspend a license for the duration thereof unless the board orders otherwise.

(k) Engaging in unprofessional conduct. Unprofessional conduct shall include
any departure from or the failure to conform to the minimal standards of acceptable
and prevailing medical practice in which proceeding actual injury to a patient need not
be established.

(l) Inability to practice medicine with reasonable skill and safety to patients by
reason of illness, drunkenness, use of drugs, narcotics, chemicals or any other type of
material or as a result of any mental or physical condition, including deterioration through
the aging process or loss of motor skills.

(m) Revealing a privileged communication from or relating to a patient except when
otherwise required or permitted by law.

(n) Failure by a doctor of osteopathy to identify the school of healing in the
professional use of the doctor's name by one of the following terms: osteopathic physician
and surgeon, doctor of osteopathy, or D.O.

(o) Improper management of medical records, including failure to maintain adequate
medical records, to comply with a patient's request made pursuant to sections 144.291 to
144.298 or to furnish a medical record or report required by law.

(p) Fee splitting, including without limitation:

(1) paying, offering to pay, receiving, or agreeing to receive, a commission, rebate,
or remuneration, directly or indirectly, primarily for the referral of patients or the
prescription of drugs or devices;

(2) dividing fees with another physician or a professional corporation, unless the
division is in proportion to the services provided and the responsibility assumed by each
professional and the physician has disclosed the terms of the division;

(3) referring a patient to any health care provider as defined in sections 144.291 to
144.298 in which the referring physician has a "financial or economic interest," as defined
in section 144.6521, subdivision 3, unless the physician has disclosed the physician's
financial or economic interest in accordance with section 144.6521; and

(4) dispensing for profit any drug or device, unless the physician has disclosed the
physician's own profit interest.

The physician must make the disclosures required in this clause in advance and in writing
to the patient and must include in the disclosure a statement that the patient is free to
choose a different health care provider. This clause does not apply to the distribution
of revenues from a partnership, group practice, nonprofit corporation, or professional
corporation to its partners, shareholders, members, or employees if the revenues consist
only of fees for services performed by the physician or under a physician's direct
supervision, or to the division or distribution of prepaid or capitated health care premiums,
or fee-for-service withhold amounts paid under contracts established under other state law.

(q) Engaging in abusive or fraudulent billing practices, including violations of the
federal Medicare and Medicaid laws or state medical assistance laws.

(r) Becoming addicted or habituated to a drug or intoxicant.

(s) Prescribing a drug or device for other than medically accepted therapeutic or
experimental or investigative purposes authorized by a state or federal agency or referring
a patient to any health care provider as defined in sections 144.291 to 144.298 for services
or tests not medically indicated at the time of referral.

(t) Engaging in conduct with a patient which is sexual or may reasonably be
interpreted by the patient as sexual, or in any verbal behavior which is seductive or
sexually demeaning to a patient.

(u) Failure to make reports as required by section 147.111 or to cooperate with an
investigation of the board as required by section 147.131.

(v) Knowingly providing false or misleading information that is directly related
to the care of that patient unless done for an accepted therapeutic purpose such as the
administration of a placebo.

(w) Aiding suicide or aiding attempted suicide in violation of section 609.215 as
established by any of the following:

(1) a copy of the record of criminal conviction or plea of guilty for a felony in
violation of section 609.215, subdivision 1 or 2;

(2) a copy of the record of a judgment of contempt of court for violating an
injunction issued under section 609.215, subdivision 4;

(3) a copy of the record of a judgment assessing damages under section 609.215,
subdivision 5; or

(4) a finding by the board that the person violated section 609.215, subdivision
1 or 2. The board shall investigate any complaint of a violation of section 609.215,
subdivision 1 or 2.

(x) Practice of a board-regulated profession under lapsed or nonrenewed credentials.

(y) Failure to repay a state or federally secured student loan in accordance with
the provisions of the loan.

(z) Providing interstate telemedicine services other than according to section 147.032.

new text begin (aa) Operating a kiosk contrary to the requirements in section 145.7132.
new text end

Sec. 7.

Minnesota Statutes 2014, section 148.56, subdivision 3, is amended to read:

Subd. 3.

Unregulated sales.

new text begin (a) new text end Nothing in sections 148.52 to 148.62 shall
be construed to apply to the sale of toy glasses, goggles consisting of plano-white or
plano-colored lenses or ordinary colored glasses or to the replacement of duplications of
broken lenses, nor to sales upon prescription from persons legally authorized by the laws
of this state to examine eyes and prescribe glasses therefor, nor shall it apply to regularly
licensed physicians and surgeons.

new text begin (b) new text end Sections 148.52 to 148.62 also do not apply to the sale of new text begin over-the-counter
new text end spectacles, used for reading and containing only simple lenses having a plus power of up
to and including 3.25, if no attempt is made to test the eyes. The term "simple lenses" does
not include bifocals. The seller shall prominently display a sign on the counter or rack or
other display device where the spectacles are offered for sale new text begin in at least ten-point bold type
new text end that reads as follows: deleted text begin "If you have experienced a vision loss, the selection of these glasses
should not take the place of an eye exam." deleted text end new text begin "Attention: Ready-to-wear nonprescription
glasses are not intended to replace prescribed corrective lenses or examinations by an eye
care professional. If you have experienced a vision loss, the selection of these glasses
should not take the place of an eye examination. Regular eye check-ups are necessary to
determine your eye health status and vision needs."
new text end

Sec. 8.

Minnesota Statutes 2014, section 148.57, subdivision 3, is amended to read:

Subd. 3.

Revocation, suspension.

The board may revoke the license or suspend
or restrict the right to practice of any person who has been convicted of any violation of
sections 148.52 to 148.62 or of any other criminal offense, or who violates any provision
of sections 148.571 to 148.576 new text begin or section 145.7132 new text end or who is found by the board to be
incompetent or guilty of unprofessional conduct. "Unprofessional conduct" means any
conduct of a character likely to deceive or defraud the public, including, among other
things, free examination advertising, the loaning of a license by any licensed optometrist
to any person; the employment of "cappers" or "steerers" to obtain business; splitting
or dividing a fee with any person; the obtaining of any fee or compensation by fraud
or misrepresentation; employing directly or indirectly any suspended or unlicensed
optometrist to perform any work covered by sections 148.52 to 148.62; the advertising by
any means of optometric practice or treatment or advice in which untruthful, improbable,
misleading, or impossible statements are made. After one year, upon application and proof
that the disqualification has ceased, the board may reinstate such person.