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Proposed Amendments to the 2012 Bylaws and Procedural Rules

The American Academy of Ophthalmology Board of Trustees recommends the following proposed changes and amendments to the Academy Bylaws and Procedural Rules for consideration and adoption by voting fellows and members via official hybrid (mail and online) ballot to be sent following the Annual Business Meeting on Sunday, November 11, 2012, at the McCormick Place Convention Center. New language is underlined and deleted words and phrases are indicated by strike through. Only the affected portions of the current documents are printed below.  

Board of Trustees Statement: The Board of Trustees supports the requirement that all categories of membership comply with the Academy’s Bylaws and Code of Ethics. The following amendment changes broaden the membership language to include all types of Academy membership.

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BYLAWS
Article I: Membership

1.22. Termination of Membership.
(a) A Fellow or Member in any class of membership whose required dues, assessments, or other fees for a calendar year are not paid in full by the date as determined by the Board of Trustees shall be considered “delinquent.” If the delinquency is not removed by December 31 of that year, membership shall automatically terminate on the last day of that year, unless membership is extended in a manner determined by the Board of Trustees. A Fellow or Member whose membership has been terminated may reapply for membership as provided in Sections 1.17 and 1.18.

(b) A Fellow or Member in any class of membership may resign by written notice to the Executive Vice President. The resignation is effective without acceptance when the notice is received. But the resignation does not relieve the Fellow or Member from any obligation to the Academy for accrued but unpaid dues, assessments, or fees.

(c) The membership of a Fellow or Member in any class of membership who ceases to meet any requirement for eligibility and who does not transfer to another membership class as provided in these Bylaws, shall automatically terminate on the date on which the Fellow or Member ceases to meet the eligibility requirement. If a Fellow’s or Member’s license to practice medicine, or the conduct of the Fellow’s or Member’s practice of medicine, is in any manner and to any extent whatsoever revoked, conditioned, suspended, limited, qualified, subjected to the terms of probation, or restricted by a court, department, board, or administrative agency, membership in the Academy shall automatically terminate on the effective date of that action. The foregoing shall not apply to an adverse action with respect to a Fellow’s or Member’s medical practice or license by reason of the failure or refusal of the Fellow or Member either to accept assignment of benefits payable by a patient’s third-party payor as payment in full for professional services rendered to the patient or to participate in one (1) or more public or private health plans or if the adverse action with respect to the Fellow or Member’s medical practice or license is solely the result of a voluntary recognition by the Fellow or Member of a physical, mental or emotional impairment. The Board of Trustees may, effective at any time, revoke membership in the Academy of any person whose application or nomination form for membership in the Academy or acceptance form to accept an invitation for membership in the Academy contains, or is accompanied or supported by information that contains, in the judgment of the Board of Trustees, a substantial misstatement or omission of a material fact. For this purpose, a “material fact” includes any fact required by the instructions on the respective forms.

1.23. Code of Ethics. The Academy’s Code of Ethics is applicable only to the Academy and its Fellows and Members in any class of membership of the Academy. The Academy’s Code of Ethics, as the same exists on the date of the adoption of these Bylaws and as thereafter amended or revised, is incorporated in and made a part of these Bylaws to the same extent and with the same effect as though it were set forth verbatim in this Section 1.23. The Academy’s Code of Ethics may be amended or revised from time to time as provided in Section 9.01. Each candidate for membership and each member in all classes of membership Fellow and Member in the Academy shall comply with the Code of Ethics as a condition of initial and continued membership in the Academy.

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CODE OF ETHICS
Preamble
The Code of Ethics of the American Academy of Ophthalmology applies to the American Academy of Ophthalmology and to its Fellows and Members in any class of membership, and is enforceable by the American Academy of Ophthalmology.

C. Administrative Procedures
The Administrative Procedures form the third part of this Code of Ethics. They provide for the structure and operation of the Ethics Committee; they detail procedures followed by the Committee and by the Board of Trustees of the Academy in handling inquiries or challenges raised under the Rules of Ethics. All ophthalmologists who are Fellows or Members of the Academy in any class of membership are required to comply with these Administrative Procedures; failure to cooperate with the Ethics Committee or the Board of Trustees in a proceeding on a challenge may be considered by the Committee and by the Board of Trustees according to the same procedures and with the same sanctions as failure to observe the Rules of Ethics.

Board of Trustees Statement: The Board of Trustees supports the amendment to the Bylaws granting the Academy the ability to terminate or suspend membership of a member whose conduct is deleterious or offensive to the Academy or the profession of ophthalmology.

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BYLAWS
Article I: Membership

1.22 Termination of Membership.
(d) In rare cases, a Fellow or Member may be subject to termination or suspension by a 3/4 vote of the Board of Trustees for actions that either are deleterious to the purposes of the Academy, or are offensive to the dignity of the Academy. The Fellow or Member shall receive at least fifteen (15) days’ prior written notice of the proposed termination or suspension and the reasons for it, and shall be entitled to oppose the proposed termination or suspension in whole or in part by written submission to the Board of Trustees, which must be received by the Academy’s Executive Vice President at least five (5) days before the effective date of the proposed termination or suspension. Upon receipt of a timely written submission from the Fellow or Member, the effective date of the proposed termination or suspension shall be stayed pending review by the Board of Trustees of the submission, and its vote as to whether to affirm, vacate, or modify the proposed termination

Board of Trustees Statement: In order to assure that the Academy’s Code of Ethics remains the standard among medical societies, the Board of Trustees supports the revisions and additions to the Code of Ethics Principles, Rules and Administrative Procedures as recommended by the Ethics Committee.

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CODE OF ETHICS
A. Principles of Ethics

A.9. Community Responsibility. The honored ideals of the medical profession imply that the responsibility of the ophthalmologist extends not only to the individual but also to society as a whole. Activities that have the purpose of improving the health and well-being of the patient and/or the community in a cost-effective way deserve the interest, support, and participation of the ophthalmologist.

B. Rules of Ethics

B.3. Clinical Trials and Investigative Procedures. Research and Innovation in Clinical Practice. Research and innovation in clinical practice Use of clinical trials or investigative procedures shall be approved by adequate appropriate review mechanisms. Clinical trials and investigative procedures  Research and innovations in clinical practice are those conducted to develop adequate information on which to base prognostic or therapeutic decisions or to determine etiology or pathogenesis, in circumstances in which insufficient information exists. Appropriate informed consent for these research and innovative procedures must recognize their special nature and ramifications. In emerging areas of ophthalmic treatment where recognized guidelines do not exist, the ophthalmologist should exercise careful judgment and take appropriate precautions to safeguard patient welfare.

B.9. Medical and Surgical Procedures. An ophthalmologist must not misrepresent the service that is performed or the charges made for that service. An ophthalmologist must not inappropriately alter the medical record.

B.17. Confidentiality. An ophthalmologist shall respect the confidential physician-patient relationship and safeguard confidential information consistent with the law.

C. Administrative Procedures

The Administrative Procedures form the third part of this Code of Ethics. They provide for the structure and operation of the Ethics Committee; they detail procedures followed by the Committee and by the Board of Trustees of the Academy in handling inquiries or challenges raised under the Rules of Ethics. All ophthalmologists who are Fellows or Members of the Academy in any class of membership are required to comply with these Administrative Procedures; failure to cooperate with the Ethics Committee or the Board of Trustees in a proceeding on a challenge may be considered by the Committee and by the Board of Trustees according to the same procedures and with the same sanctions as failure to observe the Rules of Ethics.

C.1. Ethics Committee
(a) The Committee.
The Board of Trustees appoints at least five (5), but not more than nine (9), ophthalmologists who are voting Fellows or Members of the Academy to serve three (3) year, staggered terms as members of the Ethics Committee. The Board of Trustees makes its appointments to the Committee from among respected ophthalmologists who will, to the extent practicable, assure that the Committee’s composition is balanced as to relative age, diversity, and experience, and as to the emphasis of the appointees upon practice, education, research or other endeavors within ophthalmology. Membership on the Ethics Committee may be terminated by the Board of Trustees at any time and for any reason. Vacancies on the Committee are filled by the Board of Trustees. Committee members are reimbursed for expenses. The Ethics Committee is responsible for: (i) developing and implementing an educational program regarding professional ethics and the Code of Ethics of the American Academy of Ophthalmology, especially among ophthalmologists and ophthalmologists-in-training who are Fellows or Members of the Academy; (ii) responding to each inquiry regarding ethics and if appropriate making a recommendation to the Board of Trustees regarding action, such as the development of an advisory opinion interpreting the Rules of Ethics in this Code; (iii) investigating each challenge regarding ethics and recommending whether the Board of Trustees should make a determination that a Fellow or Member of the Academy has failed to observe the Rules of Ethics in this Code, and recommending an appropriate sanction; (iv) serving as a resource for the American Academy of Ophthalmology, its members and its Board of Trustees regarding professional ethics and ethical issues; and (v) assessing the Principles of Ethics, Rules of Ethics and Administrative Procedures in this Code periodically and recommending any amendments to the Board of Trustees.

(d) Meetings of the Committee. Meetings of the Ethics Committee are called upon at least seven (7) days’ written notice to Committee members, which notice includes a copy of the agenda for the meeting. A quorum consists of a majority of all the appointed Committee members. Voting is by majority of those present at a meeting (or by a majority of those submitting votes in a mail vote). Mail voting without a meeting is permitted where all Committee members submit mail votes or abstentions. Voting by proxy is not permitted. A member of the Committee must decline to participate in the consideration of, or the decision in, any matter before the Committee in which the member has a personal interest.

C.2. Inquiries and Challenges
(a) Preliminary Review.
The Chair preliminarily reviews each submission involving this Code of Ethics to consider whether it may be an inquiry (e.g., a request for issuance by the Board of Trustees of an advisory opinion interpreting the Rules of Ethics in this Code) or a challenge (i.e., a request for a finding by the Board of Trustees that a Fellow or Member of the Academy has failed to observe the Rules of Ethics in this Code). A submission involving this Code of Ethics, whether or not it is designated or phrased as an inquiry or challenge, may be construed by the Chair or the Committee as either an inquiry or a challenge in the light of information in the submission. Inquiries may be considered without regard to their means or form of submission. Challenges relating to information not in the public domain must be submitted in the format required by the Ethics Committee containing specific allegations against a Fellow or Member and de-identifying patient information consistent with relevant law(s). Such submissions will are not be considered unless they are submitted in writing and signed by their submitters. The Ethics Committee will not review material submitted electronically until a signed and dated submission form is received. The requirement that a challenge be submitted in the format noted above and signed by the submitter does not apply to items that are in the public domain or those that “speak for themselves”. These items include, but are not limited to, written, printed, recorded, televised, broadcast, or other audio or audiovisual materials or presentations, whether or not signed by, or contained on the letterhead of, or personally presented by a person, which describe or promote the credentials, training, experience, ability, results, or medical or surgical practice of the person. Items received by the Ethics Committee which “speak for themselves” may be considered as a challenge whether or not they are submitted in writing and signed by a submitter. Inquiries or challenges may be submitted by anyone.
ophthalmologists (whether or not they are Fellows or Members of the Academy), other physicians, health care institutions, health care reimbursers, allied health professionals, patients or organizations representing any of these.

(b) Preliminary Disposition. Upon preliminary review of a submission involving this Code of Ethics, the Chairman may conclude, in the Chairman’s sole discretion, that the submission is not valid and actionable because it (i) pertains to acts and omissions occurring before the adoption of the Rule(s) in question, or (ii) is most appropriately raised for consideration and disposition by an entity engaged in the administration of law or the regulation of the conduct of physicians, or (iii) contains insufficient information on which to base an investigation, or (iiv) is patently frivolous or inconsequential or (v) is inconsequential in that it does not present an issue sufficient to justify presenting the submission to the Ethics Committee for investigation, formal proceedings, and possible recommendation of a sanction to the Academy’s Board of Trustees. The Chair shall give written notice of each summary disposition to the submitter (if any) and may give the same notice to the Ethics Committee. If the Chair makes a summary disposition of a submission, the Chair may, in his or her sole discretion, send a confidential written statement of his or her views or concerns to the Fellow or Member named in the challenge. For example, the Chair may conclude that a submission does not present an issue of interpretation of the Rules of Ethics in this Code adequate to constitute a valid and actionable inquiry and to justify bringing the submission before the Committee for investigation and recommendation to the Board of Trustees on issuance of an advisory opinion. Similarly, the Chair may conclude that a submission does not present an issue of the failure of a Fellow or Member of the Academy to observe the Rules of Ethics in this Code adequate to constitute a valid and actionable challenge and to justify bringing the submission before the Committee for investigation and recommendation to the Board of Trustees on a determination of failure to observe the Rules of Ethics. If the Chair so concludes, the submission is disposed of by notice from the Chairman to its submitter, if the submitter is identified. Each such preliminary disposition by the Chairman of a submission involving this Code of Ethics shall be reported to the Ethics Committee.

(c) Investigation. For each submission involving this Code of Ethics that the Chairman concludes is a valid and actionable inquiry or challenge, the Chair shall present the submission to the Ethics Committee or one of its members for investigation. the Committee conducts an investigation into its specific facts or circumstances to whatever extent is necessary in order to clarify, expand or corroborate the information provided by the submitter. The Chairman may supervise each investigation and may conduct an investigation personally. The Chair may either conduct an investigation personally or appoint one or more other individuals to conduct the investigation. The individual conducting the investigation (the “investigator”) may be assisted in the investigation by other Ethics Committee members, by Committee staff and legal counsel and may also be assisted by any other individual (a) whose location, professional position, or expertise might be thought to facilitate the investigation, (b) whose assistance is requested by the Chair in writing, and (c) who agrees in writing to follow the Administrative Procedures of the Code of Ethics. The Chairman may be assisted in the conducting of an investigation by other Ethics Committee members or by Committee staff. The Chairman may also be assisted by any other individual, such as a member of the Council of the Academy, (i) whose location, professional position or expertise might facilitate the investigation, (ii) whose assistance is requested in writing by the Committee Chairman, and (iii) who agrees in writing to follow the Administrative Procedures of this Code, but only when all three (3) of those conditions are fulfilled. A Fellow or Member of the Academy who is the subject of a valid and actionable challenge is informed in writing at the beginning of the Committee’s investigation as to (i) the nature of the challenge, (ii) the obligation to cooperate fully in the Committee’s investigation of the challenge, and (iii) the opportunity to request a hearing on the challenge before the Ethics Committee. The investigator or Committee staff shall obtain written confirmation that the submitter will (a) consent to the disclosure of his or her name to the Fellow or Member being challenged, (b) cooperate with the investigator and the Ethics Committee during the course of the investigation, and (c) testify at any hearing before the Ethics Committee concerning the matter. (If the submitter refuses to confirm these matters in writing, the investigator shall return to the Ethics Committee for guidance.) The investigator may seek preliminary information in addition to that contained in the submission if he or she deems it necessary in verifying that the submission is a valid and actionable challenge, or to clarify or corroborate information found in the challenge.

A Fellow or Member of the Academy who is the subject of a valid and actionable challenge is informed of the challenge by the investigator who shall give written notice specifying:

(a) The factual details of the challenge with sufficient particularity to permit the Fellow or Member to respond to the challenge and prepare any necessary defense;

(b) The specific Rule(s) of Ethics allegedly violated by the Fellow or Member together with a copy of, or link to, the Code of Ethics;

(c) The right of the Fellow or Member to request a hearing;

(d) The obligation to cooperate fully in the Committee’s investigation by submitting within thirty (30) days all information he or she wishes to submit, including facts supporting his or her version of the matter, any documents that support his or her position, any arguments regarding the application of the Code of Ethics to the facts, and the names and contact information of possible witnesses (including those who might be expected to give testimony unfavorable to the Fellow or Member); and

(e) The fact that if the Fellow or Member fails to submit a timely response, the Ethics Committee may proceed to decide the matter without a hearing.

At any time after providing the notice described above and after receiving the challenged Fellow’s or Member’s reply, the investigator may conduct any investigation of the matter to the extent that he or she deems appropriate in order to gather, clarify, expand or corroborate facts and information necessary to analyze the merits of the challenge and to prepare for any hearing. The investigator may request signed written statements or affidavits from witnesses. Investigations involving challenges are conducted in confidence, with all written communications to the submitter and challenged Fellow or Member sealed and marked “Personal and Confidential.” Communications will be sent via any carrier that maintains confidentiality and provides documentation of delivery. All written communications to the Ethics Committee from a challenged Fellow or Member must be signed by the challenged individual even if written on his or her behalf by legal counsel or other representative. Investigations and they are conducted objectively and without any indication of prejudgment. An investigation may be directed toward any aspect of an inquiry or a challenge which is relevant or potentially relevant and may lead to allegations of potential Rule violations other than those identified by the submitter. Upon completion of the investigation, the investigator shall assemble the investigation file, including all information submitted by the challenged Fellow or Member and shall submit the file to the Chair. If the Chair determines that additional investigation is necessary, the Chair, the investigator, the Committee’s staff or legal counsel, or some combination of these, will attempt to obtain the additional information, to possibly include The investigation one (1) or more site visits and or informal interviews with the challenged Fellow or Member.

C.3. Proceedings on Inquiries
(c) Advisory Opinion.
The Board of Trustees issues an advisory opinion interpreting the Rules of Ethics in this Code (i) upon the recommendation of the Ethics Committee arising from an inquiry and following an investigation or (ii) upon the recommendation of the Committee arising from its own initiative. A representative of the Committee presents to the Board of Trustees, for its review, the recommendations of the Committee. and its record of the investigation. Once issued by the Board of Trustees, the advisory opinion is promulgated by publication to the Fellows and Members of the Academy. Advisory opinions are made available to the Fellows and Members of the Academy on the Academy’s web site. and the compilation is periodically made available to the Fellows and Members of the Academy.

C.4. Proceedings on Challenges
(a) Hearing on a Challenge.
1. Notice of the Hearing.
In the course of an investigation involving a challenge, the Committee conducts a private adjudicative hearing if one is requested by the Fellow or Member of the Academy who is the subject of the challenge (the “challenged Fellow or Member”) or at the Committee’s own initiative. The challenged Fellow or Member who is the subject of the challenge shall be given at least thirty (30) days’ written notice of (i) his right to request a hearing. If a hearing is requested, thirty (30) days’ written notice of the date, time and location of the hearing, (ii) the name and contact information of each witness who is expected to testify in support of the challenge, (iii) the subject matter on which each witness will testify, and (iv) a copy of each affidavit signed by a witness in support of the challenge. is given to the Fellow or Member. Within fifteen (15) days after the date of that written notice, the Fellow or Member shall give to the Chair written notice of (i) the name and contact information of each witness that the Fellow or Member expects to call in opposition to the challenge, (ii) the subject matter on which each witness will testify, and (iii) a copy of each affidavit signed by a witness in opposition to the challenge. If a witness has not been timely identified, or the subject matter of his or her testimony has not been timely disclosed, or a copy of his or her signed affidavit has not been timely provided, all as required by this paragraph, the witness may be permitted to testify or the affidavit may be received, if at all, only to the extent and only as to the matters, if any, specified by the Hearing Officer, in the Hearing Officer’s sole discretion.
(2) Hearing Format and Procedures.
The hearing is conducted by a Hearing Panel, the Committee with any three (3) or more Committee members participating, other than the investigator and any other Committee member who assisted substantially in the investigation of the challenge, and any Committee member whose professional activities are conducted at a location in the approximate area of that of the challenged Fellow or Member, or who, in that Committee member’s discretionary judgment, may not be impartial for any reason of the Academy who is the subject of the challenge. The Chair of the Ethics Committee may be one (1) of the three (3) or more Committee members of the Hearing Panel conducting the hearing unless the Chair individual is disqualified by reason of circumstances described in the preceding sentence. The Hearing Panel Those Committee members participating in the hearing elect from their number a Hearing Officer to preside at the hearing. The Hearing Officer shall be assisted by the Ethics Committee’s staff and legal counsel, and shall assure that these Administrative Procedures are followed. The Hearing Officer may issue any appropriate procedural or evidentiary rulings in the course of the hearing and may be assisted by legal counsel. The Hearing Panel shall not be bound by technical rules of evidence which are usually applicable in legal proceedings, but it may receive and consider any evidence (to include documentary evidence and testimony of witnesses in person or by telephonic examination) it deems to be appropriate and relevant or potentially relevant. The Hearing Panel may receive a person’s signed affidavit in lieu of the person’s testimony at the hearing or through telephonic examination, unless the Hearing Officer concludes, in his or her sole discretion, that substantial prejudice would result therefrom. The Chief Investigator Hearing Officer, or a person or persons designated by the Hearing Officer, shall summarize for the Hearing Panel Ethics Committee the results of the investigation up to the date of the hearing which are believed to support a finding that the challenged Fellow or Member has failed to observe the Rules of Ethics, and may make such other introductory factual remarks as the Hearing Officer or the Hearing Officer’s designate deems appropriate. The Hearing Officer A person designated by the Ethics Committee shall present the facts indicating that the challenged Fellow or Member has failed to observe the Rules of Ethics, including documentary evidence and the testimony of witnesses. Those witnesses shall be available in person or by telephone for questioning by the members of the Hearing Panel Ethics Committee and its legal counsel and by the challenged Fellow or Member or his or her the Fellow’s or Member’s legal counsel or other representative. The challenged Fellow or Member subject to the challenge may be assisted at the hearing, at their sole cost and expense, by legal counsel or other representative selected by the Fellow or Member. The challenged Fellow or Member or legal counsel or other representative may present documentary evidence and the testimony of witnesses in the Fellow’s or Member’s defense. Those witnesses shall be available in person or by telephone for questioning by the challenged Fellow or Member or legal counsel or other representative and by the members of the Hearing Panel Ethics Committee and its legal counsel. The challenged Fellow or Member shall be given 60 minutes to make a presentation to the Hearing Panel; all witness and counsel presentations are included in this 60 minute time frame, unless there is good cause to lengthen this time frame and all parties are in agreement. Any information may be considered which is relevant or potentially relevant. The challenged Fellow or Member may submit a written statement at the close of the hearing. A transcript, or audio, or video recording of the hearing is made. The hearing is closed to all persons except the Hearing Panel, the Chief Investigator Committee, the Chairman, the challenged Fellow or Member of the Academy who is the subject of the challenge Member, their respective witnesses (when testifying and at other times as determined by the Hearing Officer) and legal counsel or, in the case of the Fellow or Member, other representative, Ethics Committee staff, and legal counsel and official reporter, if any. The official record of the hearing becomes part of the record of the investigation of the challenge. The Hearing Panel may delay the vote (as to the determination of hearing) to allow time to consider the official transcript or other recording of the hearing. Ex Parte communications prior to the hearing between the challenged Fellow or Member and the Hearing Officer or the Hearing Panel members shall be considered as non-cooperation with these Administrative Procedures and shall be prohibited in the absence of good cause.
(3) Forfeiture of Right to a Hearing.
The challenged Fellow’s or Member’s right to the hearing may be forfeited if he or she fails to appear without good cause. If either the submitter or the challenged Fellow or Member declines or fails to appear at a duly scheduled hearing, the hearing may still proceed, and the Hearing Panel members shall consider any material submitted previously by the absent party.

(b) Recommendation on a Challenge. Upon completion of an investigation involving a challenge, the Ethics Committee recommends whether the Board of Trustees should make a determination that the Fellow or Member of the Academy who is the subject of the challenge has failed to observe the Rules of Ethics in this Code. When the Committee recommends a determination by the Board of Trustees of non-observance, the Committee also recommends imposition by the Board of Trustees of an appropriate sanction. The recommendation is presented by a representative of the Committee to the Board of Trustees along with the record of the Committee’s investigation. A copy of the recommendation and a statement of the basis for the recommendation shall be provided to the Fellow or Member. If the Committee so recommends, a proposed determination with a proposed sanction is prepared and is presented by a representative of the Committee to the Board of Trustees along with the record of the Committee’s investigation. If the Committee recommends against a determination of non-observance, the challenge is dismissed, with notice to the Fellow or Member of the Academy who is the subject of the challenge and to the submitter of the challenge, and a summary report is made to the Board of Trustees. In the sole discretion of the Committee and with the written consent of the Fellow or Member who was the subject of the challenge, the Committee may recommend to the Board of Trustees that the fact of the dismissal of the challenge (and, in appropriate cases, the reasons for the dismissal) be publicized, and the Board of Trustees may, in its sole discretion, determine the nature, extent and manner of such publicity.

(c) Determination of Non-Observance. The Board of Trustees makes the determination, upon the recommendation of the Ethics Committee arising from a challenge and following an investigation, whether a Fellow or Member of the Academy has failed to observe the Rules of Ethics in this Code and imposes an appropriate sanction. upon the recommendation of the Ethics Committee arising from a challenge and following an investigation. The Board of Trustees reviews the recommendation of the Committee based upon the record of the investigation. The Board of Trustees may accept, reject or modify the Committee’s recommendation, either with respect to the determination of non-observance or with respect to the sanction. If the Board of Trustees makes a determination of non-observance, this determination and the imposition of a sanction are promulgated by written notice to the affected Fellow or Member of the Academy and to the submitter of the challenge, if the submitter agrees in advance and in writing to maintain in confidence whatever portion of the information is not made public by the Board. Additional publication occurs only to the extent provided in the sanctions themselves. If the Board of Trustees does not make a determination of non-observance, the challenge is dismissed, with notice to the affected Fellow or Member and to the submitter of the challenge.

(d) Alternative Disposition. At any time before the Ethics Committee submits its recommendation to the Board of Trustees, as to Before the Committee makes any recommendation to the Board of Trustees a determination that a Fellow or Member of the Academy has failed to observe the Rules of Ethics in this Code, the Ethics Committee, in its sole discretion, Committee may offer extend to the Fellow or Member an opportunity to submit a proposed alternative disposition of the matter in whole or in part upon terms and conditions suggested by the Ethics Committee. The terms and conditions may include sanctions and restrictions which are the same as, different from, or more or less restrictive than the sanctions contained in the following lettered paragraph, but shall in all cases include a written assurance by the Fellow or Member that the possible non-observance has been terminated ceased and will not recur. The decision of the Ethics Committee on whether to extend such an opportunity is entirely within the Committee’s own discretion, based upon its investigation of the challenge and upon its assessment of the nature, and severity, and likelihood of recurrence of the possible non-observance when considered in terms of the best interests of the viewed from the point of view of what is in the best interests of patients of the challenged Fellow or Member of the Academy who is the subject of the challenge. If an opportunity to submit a proposed alternative disposition is offered extended by the Ethics Committee, the an alternative disposition will be considered only if (i) it is accepted by the challenged Fellow or Member in the manner specified in the offer, and (ii) the challenged Fellow or Member of the Academy submits to the Ethics Committee the proposed alternative disposition within thirty (30) days of the date of the Ethics Committee’s offer notice to the Fellow or Member that it is extending such an opportunity. If the Fellow or Member timely submits a proposed alternative disposition that is accepted by the Board of Trustees and Ethics Committee, the alternative disposition of the challenge occurs automatically upon the Academy’s receipt of acceptance of the offer, all on the terms and conditions specified in the offer. matter shall be resolved on the basis of the alternative disposition, and Written notice of the alternative disposition shall be given to the submitter of the challenge, only if the submitter agrees in advance and in writing to maintain the information in confidence.

(f) Appeal. Within thirty (30) days of receipt of notice of a determination by the Board of Trustees that a Fellow or Member of the Academy has failed to observe the Rules of Ethics in this Code and of imposition of a sanction, the affected Fellow or Member may submit to the Board in writing a request for an appeal. The written appeal (not to exceed ten (10) double spaced, typewritten pages) shall set forth the reason(s) why the Fellow or Member believes that the Ethics Committee erred in its decision. This submission shall not contain new factual material or raise substantial new arguments that are not part of the record of the Ethics Committee’s proceeding. The Ethics Committee, or a person designated by the Ethics Committee, shall present the recommendations of the Ethics Committee and the record of the investigation to the Board of Trustees. The Board of Trustees establishes an appellate body consisting of at least three (3), but not more than five (5), ophthalmologists who are Voting Fellows or Members of the Academy and who did not participate in the Ethics Committee’s investigation or in the Board of Trustees’ determination. The appellate body conducts and completes the appeal within ninety (90) days after receipt of the request for an appeal. The purpose of the appeal is to provide an objective review of the original challenge, the investigation and recommendation of the Ethics Committee, and the determination of the Ethics Committee, and the determination of the Board of Trustees, but not, however, the sanction imposed. The appeal is limited to a review of the Ethics Committee’s and the Board of Trustees’ application of the Rules of Ethics in this Code to the facts established in the investigation of the challenge and to a review of the procedures followed to ascertain whether they were consistent with those detailed in these Administrative Procedures. An appeal may not take into consideration any matters not included as part of the record of the Ethics Committee’s investigation and the Board of Trustees’ determination. The appeal consists of a review by the appellate body of the entire record of the proceeding on the challenge and written appellate submission of the Fellow or Member of the Academy who was the subject of the challenge and of the Board of Trustees. Written appellate submissions and any reply submissions may be made by authorized representatives of the Fellow or Member and of the Board of Trustees. Submissions are made according to whatever schedule is established by the appellate body. The decision of the appellate body either affirms or overrules the determination of the Board of Trustees on of non-observance of the Rules of Ethics in this Code by a Fellow or Member of the Academy. The decision does not address the sanction imposed by the Board of Trustees. The decision of the appellate body, including a statement of the reasons for the decision, is reported to the Board of Trustees. The decision is binding upon the Board of Trustees, the Fellow or Member who is the subject of the challenge, the Ethics Committee and all other persons.

(g) Resignation. If a Fellow or Member of the Academy who is the subject of a challenge resigns from the Academy at any time during the pendency of the proceeding of the challenge, the Ethics Committee may request that the Board of Trustees authorize the Ethics Committee to publish the fact and date of resignation, the name and address of the Fellow or Member who resigned, and the fact that a challenge pursuant to the Code of Ethics was pending at the time of the resignation. Such publication shall not reveal the nature of the challenge. Following the Board of Trustees’ decision, the challenge is dismissed without any further action by the Ethics Committee, the Board of Trustees or an appellate body established after an appeal; the entire record is sealed; and the Fellow or Member may not reapply for membership in any class. The Board of Trustees may authorize the Ethics Committee to communicate the fact and date of resignation, the name and address of the Fellow or Member who resigned, and the fact that a challenge pursuant to the Code of Ethics was pending at the time of the resignation. Such communications shall not reveal the nature of the challenge. In addition, the Board of Trustees may authorize the Ethics Committee to publish communicate the fact and date of resignation, and the fact and general nature of the challenge on which a proceeding was pending at the time of the resignation, to, and at the request of, an entity engaged in the administration of law or the regulation of the conduct of physicians, in a proceeding that relates to the subject matter of the challenge, provided, however, that entity is a law enforcement agency, physician licensing authority, medical quality review board, professional peer review committee, or similar entity.

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