NEW JERSEY REGISTER
VOLUME 33, NUMBER 15
MONDAY, AUGUST 6, 2001
RULE PROPOSAL
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY STATE BOARD OF OPTOMETRISTS
EXCESSIVE FEES

Additions are indicated by <<+ Text +>>; deletions by <<- Text ->>.
Changes in tables are made but not highlighted.

Proposed New Rule: N.J.A.C. 13:38-2.15

Authorized By: State Board of Optometrists,
Susan Gartland, Executive Director.

Authority: N.J.S.A. 45:12-4.
Proposal Number: PRN 2001-294.

Submit written comments by September 5, 2001 to:

Susan Gartland, Executive Director
State Board of Optometrists
124 Halsey Street
PO Box 45012
Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the rulemaking authority set forth in N.J.S.A. 45:12-4 and general rulemaking authority of N.J.S.A. 45:1-15.1, the State Board of Optometrists (the Board) proposes new rule N.J.A.C. 13:38-2.15 to prohibit licensees of the Board from charging excessive fees. N.J.A.C. 13:38-2.15(a) establishes that the Board will review information and complaints concerning allegations of excessive fees charged by licensees of the Board. In doing so, the Board will consider comparable fees charged by licensees not under inquiry only to the minimum extent necessary to render a determination as to whether a fee is excessive.

N.J.A.C. 13:38-2.15(b) provides that a licensee shall not charge an excessive fee for services. A fee is excessive when, after a review of the facts, a licensee of ordinary prudence would be left with a definite and firm conviction that the fee is so high as to be manifestly unconscionable or overreaching under the circumstances.

N.J.A.C. 13:38-2.15(c) establishes the factors which the Board may consider in determining whether a fee is excessive. Such factors include, but are not limited to, the time and effort required; the novelty and difficulty of the procedure or treatment; the skill required to perform and interpret the procedure or treatment properly; any requirements or conditions imposed by the patient or by the circumstances; the nature and length of the professional relationship with the patient; the experience, reputation and ability of the licensee performing the services; and the nature and circumstances under which services are provided.

N.J.A.C. 13:38-2.15(d) establishes that unless services are provided during an emergency or other circumstances where opportunity, custom and practice will preclude discussion prior to the rendition of such services, the licensee or his or her designee shall, in advance of providing services, specify or discuss and agree with the patient, the fee or basis for determination of the fee to be charged.

N.J.A.C. 13:38-2.15(e) provides that if a licensee charges an excessive fee, he or she may be subject to charges of professional misconduct subjecting the licensee to disciplinary action by the Board.

Social Impact

Mandating optometrists to comply with the proposed new rule will have a positive impact upon the public by ensuring that consumers are not being overcharged for optometric services.

Economic Impact

The proposed new rule should have no significant adverse economic impact upon the regulated community or the public. The proposed new rule merely codifies that excessive fees are prohibited. Licensees who violate the rule may experience an economic impact since it subjects them to disciplinary action. However, since the proposed new rule furthers the health, welfare and safety of the public, any costs incurred by any licensee to comply with the proposed new rule is greatly outweighed by this benefit.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal standards or requirements applicable to the proposed new rule.

Jobs Impact

The Board does not anticipate that the proposed new rule will result in the creation or loss of any jobs.

Agriculture Industry Impact

The Board does not anticipate that the proposed new rule will have any impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act ("the Act"), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed new rules will apply. If licensed optometrists are considered "small businesses" for the purposes of the Act, then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposed new rule, including the kind of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs of the proposed new rule, and to provide an indication of the likely variation on small businesses of differing types and sizes. In addition, the Act requires the Board to outline the manner in which it has designed the rules to minimize adverse economic impact upon small businesses.

The proposed new rule imposes compliance requirements upon each optometrist licensed by the Board. Every licensee is required to comply with the proposed new rule or the licensee is subject to disciplinary action by the Board. As set forth in the Economic Impact above, the proposed new rule may affect licensees who fail to comply. However, since the proposed new rule furthers the health, welfare and safety of the public, any costs incurred by any licensee to comply with the proposed new rule is greatly outweighed by this benefit.

No professional services are necessary to comply with the proposed new rule.

Because proposed new rule N.J.A.C. 13:38-2.15 furthers the welfare and safety of the public in its dealings with optometrists, the Board believes that the new rule should be applied uniformly to all optometrists and no differing compliance standards are proposed.

Full text of the proposed new rule follows:

<< NJ ADC 13:38-2.15 >>

<<+13:38-2.15 Excessive fees+>>

<<+(a) The New Jersey State Board of Optometrists shall review information and complaints concerning allegations of excessive fees charged by licensees of the Board. This section is not intended to impinge upon the strong public policy in favor of competitive, free enterprise economy embodied in the antitrust laws of the United States and the State of New Jersey. The Board shall consider comparable fees charged by licensees not under inquiry only to the minimum extent necessary to render a determination as to whether a fee is excessive.+>>

<<+(b) A licensee of the New Jersey State Board of Optometrist shall not charge an excessive fee for services. A fee is excessive when, after a review of the facts, a licensee of ordinary prudence would be left with a definite and firm conviction that the fee is so high as to be manifestly unconscionable or overreaching under the circumstances.+>>

<<+(c) Factors which may be considered in determining whether a fee is excessive include, but are not limited to, the following:+>>

<<+1. The time and effort required;+>>

<<+2. The novelty and difficulty of the procedure or treatment;+>>

<<+3. The skill required to perform and interpret the procedure or treatment properly;+>>

<<+4. Any requirements or conditions imposed by the patient or by the circumstances;+>>

<<+5. The nature and length of the professional relationship with the patient;+>>

<<+6. The experience, reputation and ability of the licensee performing the services; and+>>

<<+7. The nature and circumstances under which services are provided.+>>

<<+(d) Unless services are provided during an emergency or other circumstances where opportunity, custom and practice will preclude discussion prior to the rendition of such services, the licensee or his or her designee shall, in advance of providing services, specify or discuss and agree with the patient, the fee or basis for determination of the fee to be charged.+>>

<<+(e) Charging an excessive fee in violation of (b) above shall constitute professional misconduct subjecting the licensee to disciplinary action by the New Jersey State Board of Optometrists.+>>

33 N.J.R. 2601(a)

END OF DOCUMENT


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