SECTION 140.254. Sale or Delivery of Contact Lenses and Prescription Verification

(a) An individual or business holding a permit shall comply with the federal "Fairness to Contact Lens Consumers Act" Public Law 108 - 164, and applicable standards in Occupations Code, Chapter 353.

(1) A permit holder may not deliver or dispense contact lenses to a customer unless the permit holder:

(A) receives a valid prescription directly or by facsimile; or

(B) verifies a prescription in accordance with this subsection.

(2) A permit holder shall retain an electronic or paper record of each prescription or verification for a minimum of two years from the last date lenses were dispensed based on that prescription or verification. The record shall contain all information specified by federal and state laws and rules related to requirements for a prescription or verification, including any authorized modification showing the number of lenses dispensed. If the prescription is extended by the prescriber, a record of the extension or verification of the extension shall also be maintained.

(3) A permit holder may not sell, deliver, or dispense contact lenses in a flea market.

(b) A prescription is considered verified if it meets the standards for verification set out by federal law, the "Fairness to Contact Lens Consumers Act" (Public Law 108-164), federal rules, 16 CFR Part 315 (Contact Lens Rule) and state law, Occupations Code, §353.1015.

(c) A prescription may only be verified by direct communication, which means completed communication by telephone, facsimile, or electronic mail. A prescription is verified only if one of the following occurs:

(1) the prescriber confirms the prescription is accurate by direct communication with the permit holder;

(2) the prescriber informs the permit holder through direct communication that the prescription is inaccurate and provides the accurate prescription; or

(3) the prescriber fails to communicate with the permit holder within eight business hours after receiving from the permit holder the information described in subsection (d) of this section.

(d) It is the responsibility of the permit holder to provide the prescriber with all information required by federal and state law for the verification of a prescription, including:

(1) the patient's full name and address;

(2) the contact lens power, manufacturer, base curve or appropriate designation, and diameter when appropriate;

(3) the quantity of lenses ordered;

(4) the date of patient request;

(5) the date and time of verification request; and

(6) the name of a contact person at the permit holder's company, including facsimile and telephone numbers.

(e) If the permit holder opts to include the prescriber's regular business hours on Saturdays as "business hours" as specified by subsection (c)(3) of this section, a clear statement of the prescriber's regular Saturday business hours must be included with the verification request.

(f) If a permit holder attempts to verify a prescription, and a prescriber informs a permit holder before the deadline specified by subsection (c)(3) of this section that the contact lens prescription is inaccurate, expired, or otherwise invalid, the permit holder shall not fill the prescription. The prescriber shall specify the basis for the inaccuracy or invalidity of the prescription. If the prescription communicated by the permit holder to the prescriber is inaccurate, the prescriber shall correct it, and the prescription shall then be deemed verified.

(g) During the eight business hours specified by subsection (c)(3) of this section, the permit holder shall provide a reasonable opportunity for the prescriber to communicate with the permit holder concerning the verification request.

(h) The Executive Commissioner and the Executive Director of the Texas Optometry Board may enter into interagency agreements as necessary to implement and enforce this subchapter.

Source Note: The provisions of this §140.254 adopted to be effective December 2, 2007, 32 TexReg 8518