Paxton, 102619 TXAGO, AGO RQ-311-KP

Case DateOctober 26, 2019
CourtTexas
HONORABLE KEN PAXTON
AGO RQ-311-KP
No. RQ-0311-KP
Texas Attorney General Opinion
October 26, 2019
         HONORABLE KEN PAXTON          OFFICE OF THE ATTORNEY GENERAL          ATTENTION OPINION COMMITTEE          PO BOX 12548          AUSTIN TX 78711-2548          U.S. Mail, Certified Return Receipt Requested 7018 1830 0000 5599 7964          RE: Opinion Request          Dear General Paxton:          The Texas Optometry Act (Chapter 351 of the Occupations Code) contains several sections that regulate the relationship between an optometrist and an unlicensed retailer of ophthalmic goods.[1] The Office of the Attorney General has previously issued opinions regarding these sections of the Optometry Act.[2]          The Optometry Board has been presented with situations where a physician licensed by the Texas Medical Board leases space from an unlicensed retailer of ophthalmic goods.[3] The physician then employs optometrists or therapeutic optometrists licensed by the Optometry Board to practice optometry in the leased space. These optometrists conduct examinations and treat eye disease, abnormal conditions and vision defects including issuing prescriptions signed by the optometrists for both medications and ophthalmic goods. These optometrists practice optometry as authorized by the Optometry Act.          Under the lease arrangement between the retailer of ophthalmic goods and the physician, the unlicensed retailer of ophthalmic goods provides business services and shares employees with the office where optometry is practiced. The Optometry Act 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. . . ."[4] The Optometry Act provides injunctive and other relief for violations of this section.[5] The Texas Optometry Act authorizes licensed optometrists to be employed by a physician.[6]          The physician in these situations contends that Tex. Occ. Code § 351.005(a)(2) exempts licensed optometrists employed by the physician from the regulation of the Optometry Act, specifically Tex. Occ. Code § 351.408. Section 351.005(a)(2) provides: (a) This chapter does not:
(2) prevent or interfere with the right of a physician licensed by the Texas Medical Board to:
(A) treat or prescribe for a patient; or
(B) 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 Optometry Board has authorized the Executive Director to seek an Attorney General Opinion on the following questions:
Does Tex. Occ. Code § 351.005(a)(2) prevent the Optometry Board from seeking an injunction and a civil penalty against an unlicensed retailer of ophthalmic goods providing business services and sharing employees with an optometric office staffed by optometrists employed by a physician where the physician leases space from the unlicensed retailer?
Does Tex. Occ. Code § 351.005(a)(2) prevent the Optometry Board from taking disciplinary action under Tex. Occ. Code § 351.501 against licensed optometrists employed by a physician where the physician leases space from an unlicensed retailer of ophthalmic goods and the unlicensed retailer provides business services and shares employees with the office in which the optometrists practice?
         The exemption for physicians in § 351.005(a)(2), though worded differently, has been part of the Optometry Act since 1925. An exemption for physicians is present in other health licensing acts, for example: podiatrists,[7] chiropractors,[8] dentists,[9] and psychologists.[10]          An optometrist holding himself or herself out as a licensed optometrist while performing examinations and signing prescriptions as a licensed optometrist is specifically exempt from statutes regulating the practice of medicine.[11] Such an independent licensee would not be included in the phrase "person under the physician's control, supervision, or direction" in § 351.005(a)(2)(B). Contrary to the physician's interpretation that licensed optometrists employed by a physician are included in the physician exemption, Tex. Occ. Code § 351.408(d), specifically speaks to situations where a physician owns an optometric practice and the practice is subject to the restrictions of § 351.408.          Please provide the Board with an opinion under the provisions of Tex. Gov. Code § 402.042. The Optometry Board has enclosed a Brief with a more thorough discussion than presented in the request.          Thank you. Should you have any questions, please call me at 512-305-8502.          Sincerely,          Chris Kloeris Executive...

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