O. Reg. 24/14: GENERAL

filed February 14, 2014 under Optometry Act, 1991, S.O. 1991, c. 35

ONTARIO REGULATION 24/14

made under the

OPTOMETRY ACT, 1991

Made: November 11, 2013
Approved: February 12, 2014
Filed: February 14, 2014
Published on e-Laws: February 14, 2014
Printed in The Ontario Gazette: March 1, 2014

Amending O. Reg. 119/94

(GENERAL)

1. Ontario Regulation 119/94 is amended by adding the following Parts:

PART I
PROFESSIONAL MISCONDUCT

1. The following are acts of professional misconduct for the purposes of clause 51 (1) (c) of the Health Professions Procedural Code:

THE PRACTICE OF THE PROFESSION AND THE CARE OF, AND RELATIONSHIP WITH, PATIENTS

1. Contravening a term, condition or limitation to which the member’s certificate of registration is subject.

2. Exceeding the scope of practice of the profession.

3. Doing anything to a patient for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose in a situation in which a consent is required by law, without such a consent.

4. Abusing a patient verbally or physically.

5. Practising the profession while the member’s ability to do so is impaired by any substance.

6. Discontinuing professional services that are needed unless,

i. the patient requests the discontinuation,

ii. the member arranges alternative services,

iii. the patient is given a reasonable opportunity to arrange alternative services, or

iv. the patient has failed to make payment within a reasonable time for services received, and the services that are needed are not of an emergency nature.

7. Engaging in the practice of the profession while in a conflict of interest as described in Part II.

8. Failing to reveal the exact nature of a secret remedy or treatment used by the member following a patient’s request to do so.

9. Making a misrepresentation with respect to a remedy, treatment or device.

10. Treating or attempting to treat an eye or vision system condition which the member recognizes or should recognize as being beyond his or her experience or competence.

11. Failing to refer a patient to another professional whose profession is regulated under the Regulated Health Professions Act, 1991 when the member recognizes or should recognize a condition of the eye or vision system that appears to require such referral.

12. Failing, without reasonable cause, to provide a patient with a written, signed and dated prescription for subnormal vision devices, contact lenses or eye glasses after the patient’s eyes have been assessed by the member and where such a prescription is clinically indicated.

13. Recommending or providing unnecessary diagnostic or treatment services.

14. Failing to maintain the standards of practice of the profession.

15. Delegating a controlled act in contravention of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.

16. Performing a controlled act that the member is not authorized to perform.

17. Permitting, counselling or assisting a person who is under the supervision of a member to perform an act in contravention of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.

18. Permitting, counselling or assisting any person who is not a member to perform a controlled act which should be performed by a member.

REPRESENTATIONS ABOUT MEMBERS AND THEIR QUALIFICATIONS

19. Using a term, title or designation in respect of the member’s practice other than “optometrist” or “doctor of optometry”.

20. Using, in the course of providing or offering to provide professional services, any reference to the member’s education or educational achievement other than the member’s university degree, unless the use of the reference is approved by Council.

21. Identifying oneself to a patient as a person who is qualified to practise as a member of a health profession other than optometry, unless lawfully entitled to do so in Ontario under the legislation governing that profession.

22. Publishing or using, or knowingly permitting the publication or use of an advertisement or announcement or information that promotes or relates to the provision of professional services by a member to the public, whether in a document, business card, business sign, website, or any other format, which,

i. is false or deceptive, whether by reason of inclusion of or omission of information,

ii. suggests that the member is a specialist or is specially educated, trained or qualified other than where the reference is to an educational achievement and the reference has been approved by Council,

iii. contains a testimonial or comparative or superlative statements,

iv. contains an endorsement other than an endorsement by an individual or organization that has demonstrated, to the satisfaction of Council, that the individual or organization has expertise relevant to the subject matter of the endorsement,

v. is not factual, objectively verifiable or readily comprehensible to the persons to whom it is directed, or

vi. would be reasonably regarded by members as demeaning the integrity or dignity of the profession or likely to bring the profession into disrepute.

23. Where a member uses, in the course of providing or offering to provide professional services, a name other than the name of the member as it is published on the register of the College, failing to,

i. post a list, in a location where patients will likely see it, of the name of every member who practises at that location,

ii. notify the Registrar in writing of the name of every member who practises at that location, and

iii. notify the Registrar in writing of any change in the members who practise at that location no less than 30 days from the date that the change occurred.

RECORD KEEPING AND REPORTS

24. Failing to make or maintain records in accordance with Part IV.

25. Falsifying a record relating to a member’s practice.

26. Signing or issuing, in the member’s professional capacity, a certificate, report or similar document that contains a statement the member knows or ought to know is false, misleading or otherwise improper, or omits statements or information that the member knows or ought to know should be included.

27. If a member closes his or her office or retires from practice, failing to make reasonable efforts to make arrangements with a patient or his or her authorized representative to transfer the patient’s records to,

i. the patient or his or her authorized representative,

ii. another member, if the patient or his or her authorized representative so requests, or

iii. another member, with notice to the patient that his or her records have been transferred to that other member.

BUSINESS PRACTICES

28. Submitting or allowing to be submitted an account for professional services that the member knows or ought to know is false or misleading.

29. Charging or allowing a fee to be charged that is excessive or unreasonable in relation to the professional services provided.

30. Failing to issue a statement or receipt that itemizes an account for professional goods or services to the patient or a third party who is to pay, in whole or in part, for the goods or services provided to the patient.

31. Charging or receiving more than the amount payable under the Ontario Health Insurance Plan for performing an insured service to an insured person.

32. Accepting payment in respect of an insured service to an insured person before the member receives notice from the Ontario Health Insurance Plan that the patient has been reimbursed by the Plan, unless the insured person has consented to make the payment on an earlier date.

33. Charging or accepting a fee, in whole or in part, before providing professional services to a patient unless,

i. the fee relates to the cost of professional goods to be used in the course of performing the services, or,

ii. the member informs the patient, before he or she pays the fee, of the patient’s right to choose not to pay the fee before the professional services are performed.

MISCELLANEOUS MATTERS

34. Failing to comply with an order of the Inquiries, Complaints and Reports Committee requiring the member to appear before a panel of the committee to be cautioned.

35. Failing to abide by a written undertaking given by the member to the College or a Committee, or to carry out an agreement entered into with the College or a Committee.

36. Contravening, by act or omission, the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.

37. Failing to co-operate with a representative of another College on production of an appointment under section 75 of the Health Professions Procedural Code or to provide access to or copies of a record, document or thing that may be reasonably required for the purposes of an investigation.

38. Failing to provide a patient or a patient’s authorized representative, when requested, with the practice address and telephone number of a member who previously practised with the member when the member knows or ought to know this information.

39. Engaging in conduct or performing an act that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical.

PART II
CONFLICT OF INTEREST

2. In this Part,

“benefit” means any incentive of more than nominal value and includes a rebate, credit or gift but does not include a reasonable discount based on volume or prompt payment;

“health centre” means a facility that provides health services funded by the Ministry of Health and Long-Term Care;

“non-arm’s length relationship” means a relationship other than that between parties who are unrelated, with each acting in his or her own best interest in the ordinary course of business.

3. (1) A member shall not engage in the practice of the profession while the member is in a conflict of interest.

(2) A member is in a conflict of interest where the member,

(a) has a personal or financial interest that influences or is likely to influence the exercise of the member’s professional expertise or judgment in respect of the treatment or referral of a patient;

(b) enters into an arrangement or agreement that influences or is likely to influence the member’s ability to properly exercise his or her professional expertise or judgment in respect of the treatment or referral of a patient;

(d) accepts a benefit that is related to the member referring a patient to any other person;

(e) accepts or confers a benefit relating to any ophthalmic materials, appliances or equipment, that influences or is likely to influence the exercise of the member’s professional judgment respecting the purchase or use of the materials, appliances or equipment;

(f) enters into any arrangement or agreement respecting a lease or the use of premises or equipment used in the practice of the profession under which any amount payable is related to the amount of fees charged or the volume of business carried out by the member;

(g) subject to subsection 4 (5), engages in the practice of the profession in a working arrangement with another person except,

(i) with a member who is engaged in the practice of the profession,

(ii) with a member of the College of Physicians and Surgeons of Ontario who is engaged in the practice of medicine,

(iii) as an employee or agent of a government or government agency, health centre, university or hospital,

(iv) as an employee of a corporation, other than one referred to in subclause (iii) for the purpose of providing services solely to the employees of that corporation, or

(v) under an arrangement approved by Council;

(h) shares fees related to the practice of the profession with any person other than,

(i) another member, or

(ii) a member of the College of Physicians and Surgeons of Ontario engaged in the practice of medicine.

4. (1) Despite clause 3 (2) (a), a member is not in a conflict of interest if the member discloses to the patient the nature of the member’s personal or financial interest to the patient before providing professional services.

(2) A member is not in a conflict of interest in connection with making a recommendation about the referral of a patient that has the potential to benefit a person who is in a non-arm’s length relationship with the member, if the member receives no benefit for the referral and if, before making the recommendation, the member discloses to the patient the nature of the relationship between the member and the person who is in a non-arm’s length relationship with the member.

(3) A member is not in a conflict of interest in connection with the member receiving a patient referred from a person who is in a non-arm’s length relationship with the member if the member receives no benefit in relation to the referral and if, before providing professional services, the member discloses to the patient the nature of the relationship between the member and the person who is in a non-arm’s length relationship with the member.

(4) A member is not required to disclose his or her financial interest in an optometry professional corporation in which he or she is a shareholder in order to obtain the benefit of subsection (1), (2) or (3) if the fact that the member engages in the practice of optometry in an optometry professional corporation was made known to the patient.

(5) No conflict of interest arises under clause 3 (2) (g) where the member engages in the practice of the profession as an independent contractor with another person in accordance with a written agreement that states that the member,

(a) shall control the professional services provided to a patient;

(b) shall control who he or she may accept as a patient;

(d) shall set the fee charged or collected in respect of any professional service;

(e) shall control the maintenance, custody and access to the records required to be kept in respect of the practice of the profession;

(f) shall have access, along with his or her staff, to the premises where the member practises and to the books and records related to his or her practice, at any time of the day or night; and

(g) shall ensure that any advertising relating to the professional services provided by the member meets the requirements set out in regulations made under the Act.

(6) For the purpose of subsection (5),

“independent contractor” means a person who practises the profession under an agreement with another, but who is independent and not controlled by the other or subject to the other’s right to control respecting the member’s conduct in the practice of the profession.

Commencement

2. This Regulation comes into force 60 days after the day it is filed.

Made by:

Council of the College of Optometrists of Ontario:

Dennis Ruskin

President

Paula Garshowitz

Registrar

Date made: November 11, 2013.

O. Reg. 24/14: GENERAL

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