A state board’s concerns over stopping conflicts of interest and a physician’s right to employ and delegate treatment to other professionals are colliding head-on.
Now, it’s up to Texas Attorney General Ken Paxton to sort out what, in his view, the state’s optometry law allows.
The Texas Optometry Act has language aimed at keeping the practice of optometry separate and free from the influence of opticians – the professionals who manufacture and sell ophthalmic products, such as protective eyewear, eyeglass frames, and contact lenses. The Texas Optometry Board (TOB) interprets that to mean a physician who is leasing building space from an optician can’t hire an optometrist.
On the other hand, physicians can employ and delegate treatment roles to many types of professionals, including optometrists, and the Texas Medical Association believes an exception in the Optometry Act clearly allows for such arrangements – even when an optician is the landlord.
In a letter and accompanying brief filed in September 2019, TOB asked Attorney General Paxton to weigh in on the matter. TMA and the Texas Ophthalmological Association responded with their own letter-briefs. At press time the attorney general had yet to rule.
If the attorney general sides with the optometry board, TMA says that would amount to telling physicians whom they can and can’t employ, and to whom they can and can’t delegate treatment – a question that falls to the medical board. Moreover, medicine is concerned that if this exception in the optometry rules goes away, it could open the door for attacks on similar exceptions in other professional boards’ rules, undercutting physician hiring and delegation powers, TMA General Counsel Rocky Wilcox said.
The case illustrates how some professional boards’ rules can cause problems by stepping into each other’s regulatory authority, he said.
“There’s overlapping authority here between optometrists and ophthalmologists. Just because an optometrist does something which also an ophthalmologist is licensed to do doesn’t mean the medical board regulates that optometrist.” The same is true of the opposite situation, Mr. Wilcox adds: The optometry board can’t regulate a physician.
A nearly century-old exception
The Optometry Act is in place, according to the law itself, to prevent the manufacturers, wholesalers, and retailers of ophthalmic goods from “controlling or attempting to control the professional judgment, manner of practice, or practice of an optometrist or therapeutic optometrist.”
The optometry board argues in its letter that the law “prohibits a retailer of ophthalmic goods from ‘… providing, hiring, or sharing employees, business services, or similar items to or with an optometrist or therapeutic optometrist.’”
The board’s letter also acknowledges the law allows physicians to employ licensed optometrists under an exception that says the law does not interfere with a licensed physician’s right to “direct or instruct a person under the physician’s control, supervision, or direction to aid or attend to the needs of a patient according to the physician’s specific direction, instruction or prescription.” The physician exemption has been part of the law since 1925, the board notes, and a physician exemption “is present in other health licensing acts, for example: podiatrists, chiropractors, dentists, and psychologists.”
So thanks to the exception, a physician can employ an optometrist while also leasing space from an optician. Right?
The optometry board doesn’t see it that way. The disagreement boils down to whether optometrists are counted in the exception as those whom a doctor is directing or instructing “under the physician’s control, supervision, or direction” to treat the patient.
In its accompanying brief, the board argues that the exception simply doesn’t apply to optometrists because they are “not under a physician’s control, supervision, or direction even if employed in an optometric office owned by the physician.”
“The language ‘a person under the physician’s control, supervision, or direction’ refers only to those persons who are not licensed to independently practice,” the board wrote. “Physicians are specifically authorized to direct or instruct such a person who is under the physician’s supervision to perform a medical act. Optometrists, because of their independent authority to practice optometry, are not included in [the law] authorizing physician supervision.”
Through its executive director, Chris Kloeris, TOB declined comment for this story.
Interference with physician practice
TMA, however, argues in its letter-brief to the attorney general that optometrists do fall in that group, pointing to a 1992 attorney general’s opinion already recognizing that the exception “can include an optometrist employed by a physician.” And taking a physician-optometrist employment relationship out of the exception “would penalize and discourage otherwise lawful relationships.”
“There is no prohibition against a physician leasing from an ophthalmic retailer” (optician), TMA wrote. An interpretation otherwise “would either discourage an ophthalmic retailer from leasing to a physician that employs an optometrist, or optometrist from working for a physician that leases from an ophthalmic retailer,” and “would interfere with where a physician may practice and to whom they may delegate treatment.”
If the Texas Legislature intended to exclude a physician’s optometrist employee from the exception in the law, or for the law to apply to a physician practice, “it could have stated so,” TMA added. Instead, the law contains “a broad exception, and the potential conflict of interest between a physician’s optometrist employee and an ophthalmic retailer” is addressed elsewhere in the law.
The Texas Ophthalmological Association backed up TMA’s position in a separate letter filed with the attorney general in October 2019. The ophthalmologists asserted that the state’s optometry law can’t limit physician delegation, urging the attorney general to clearly acknowledge “that the Texas Optometry Board has no right or authority to investigate or subpoena (i.e. lease agreements or otherwise) a physician, a physician’s practice, or those employed by a physician in the physician’s practice.”
If the attorney general agrees with the optometry board, Mr. Wilcox says physician exemptions or carve-outs in other boards’ rules could be in jeopardy, too.
TMA has fought similar battles when rules by agencies other than the Texas Medical Board overstep into regulating physicians. For example, in 2015 the Texas Board of Orthotics and Prosthetics proposed a rule that would have removed licensed physicians from the list of professionals who can supervise those providing “assistant patient care services.” TMA objected, telling the board that a physician’s license grants “the authority to engage in a full range of medical services, including the measuring and fitting of orthoses.”
Medicine’s objection helped keep that physician supervisory authority in place.
Tex Med. 2020;116(2):25-27
February 2020 Texas Medicine Contents
Texas Medicine Main Page