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...