A performance audit of The Arizona Board of Optometry

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
of
THE ARIZONA BOARD OF OPTOMETRY
SEPTEMBER 1979
THE BOARD OF OPTOMETRY HAS NOT EFFEC-TIVELY
PROTECTED THE PUBLIC FROM IN-COMPETENT
OR UNSCRUPULOUS OPTOM-ETRISTS.
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 79- 10
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
September 14, 1979
The Honorable Bruce Babbitt, Governor
Members of the Arizona Legislature
Members of the Board of Optometry
Transmitted herewith is a report of the Auditor General, A Performance Audit of
the Arizona Board of Optometry. This report is i n response t o a September 19,
1978, resolution of the J o i n t Legislative Budget Committee and a January 18,
1979, resolution of the J o i n t Legislative Oversight Committee.
A summary of t h i s report is found on the blue pages a t t h e f r o n t of the report.
A response t o t h i s report from members of the Board of Optometry is found on the
yellow pages preceding the appendices of the report.
My s t a f f and I w i l l be happy t o meet with the appropriate l e g i s l a t i v e
committees, individual l e g i s l a t o r s or other s t a t e o f f i c i a l s t o discuss or
c l a r i f y any items i n t h i s report or t o f a c i l i t a t e the implementation o f t h e
recommendations.
Respectfully submitted,
~ o u ~ l . aRg. Norton
Auditor General
Staff: Gerald A. Silva
Coni R. Good
James A. Sexton
Blake P. Peterson
LEGISLATIVE SERVICES WING SUITE 200 STATE CAPITOL PHOENIX. ARIZONA 85007 255- 4385
O F F I C E OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF
THE ARIZONA BOARD OF OPTOMETRY
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 79- 10
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
SUNSET FACTORS
FINDINGS
FINDING I
The Board of Optometry has not e f f e c t i v e l y protected
the public from incompetent or unscrupulous optometrists.
CONCLUSION
RECOMMENDATION
FINDING I1
The examination process of the Board of Optometry is
not i n compliance with s t a t e law and is of questionable
v a l i d i t y .
CONCLUSION
RECOMMENDATION
FINDING I11
The Board of Optometry has not revised promulgated
rules which a r e i n c o n s i s t e n t with federal regulations
and Arizona s t a t u t e s .
CONCLUSION
RECOMMENDATION
FINDING I V
Since f i s c a l year 1976- 77, the Board of Optometry
has s u b s t a n t i a l l y improved the documentation and
recording of its proceedings; however, additional
improvements a r e still needed t o assure t h a t
Board records a r e maintained i n a manner consistent
with s t a t u t o r y requirements.
Page
1
4
8
CONCLUSION
RECOMMENDATION
FINDING V
Page
79
The Board of Optometry has been substandard i n its
encouragement and use of public input i n its opera-tions.
Information regarding meeting notices,
proposed r u l e s and regulations, l e g i s l a t i v e proposals
and Board'actions has not been adequately provided
t o licensed optometrists or the consumers of
optometric services.
CONCLUSION
RECOMMENDATION
FINDING V I
Changes needed t o improve the efficiency and effec-tiveness
of the Board of Optometry.
CONCLUSION
RECOMMENDATION
OTHER PERTINENT INFORMATION
The use of pharmaceutical agents by optometrists.
WRITTEN RESPONSE TO THE AUDITOR GENERAL'S REPORT
APPENDICES
APPENDIX I - Arizona S t a t u t e s Regarding the Optometry
Profession
APPENDIX I1 - Memorandum from the Arizona Legislative Council
Regarding the Need t o License Optometrists -
May 2, 1979
APPENDIX I11 - Memorandum from the Arizona Legislative Council
Regarding any Weaknesses i n the Optometry Law
as Related t o the Board's of Optometry Ability
t o Take Disciplinary Actions for Violations of
the Optometry Law - August 8, 1978
APPENDIX I V - Memorandum from the Arizona Legislative Council
Regarding the Board's of Optometry Ability t o
Impose Intermediary Penalties for Violations o f the
Optometry Law - July 25, 1979
APPENDIX V - Case Studies of Consumer and Board I n i t i a t e d
Complaints for Calendar Years 1976, 1977 and
1978.
APPENDIX V I - Memorandum from the Arizona Legislative Council
Regarding the Proper Methods of Conducting
Complaint I n v e s t i g a t i o n - July 20, 1978
APPENDIX V I I - L e t t e r from D r . Harold E. Cross comparing two
p r e s c r i p t i o n s f o r the Same Patient Obtained by
Different Optometrists
APPENDIX V I I I - Memorandum from the Arizona Legislative Council
Regarding the Board's of Optometry Ability t o
Suspend or Revoke an Optometrist's License -
April 24, 1979
APPENDIX I X - Memorandum from the Arizona Legislative Council
Regarding the Examination Grading P o l i c i e s
Adopted by the Board - August 21, 1979
APPENDIX X - Suggested S t a t e Health Occupation Policy
Coordinating Act
APPENDIX X I - L e t t e r from the Arizona Attorney General t o the
President o f the Board of Optometry Rejecting
C e r t i f i c a t i o n of Rules Proposed by the Board -
April 16, 1979
APPENDIX X I 1 - Memorandum from the Arizona Legislative Council
Regarding Board of Optometry Promulgated Rules
i n Conflict with Federal and S t a t e Antitrust
Provisions - May 21, 1979
APPENDIX X I 1 1 - Memorandum from the Arizona Legislative Council
Regarding Adequate Documentation of Legal Actions
Taken by the Board of Optometry - June 18, 1979
APPENDIX X I V - Five Year Comparison of Examination Information
Presented i n the Annual Report t o the Governor,
Budget Requests, Board Minutes and Board F i l e s
APPENDIX XV - Memorandum from the Arizona Attorney General
t o all S t a t e Agencies Regarding Public Notice
Requirements - August 19, 1975
APPENDIX XVI - Quantitative Results o f the Office o f the
Auditor General survey of the Arizona
Optometry and Ophthalmology Professions
SUMMARY
The Board of Optometry has primary responsibility for regulating the practice
of optometry in Arizona. The duties of the Board include evaluating appli-cations
for examination and licensure, administering examinations, issuing
licenses, and enacting rules and regulations concerning licensed optometrists.
Prior to 1979 legislative changes, the Board consisted of three optometrists
appointed by the Governor to serve four- year terms. Legislative changes
expanded Board membership to five individuals, four optometrists and one member
representing the general public.
The Board and its activities are funded through fees charged for examinations
and licenses issued. Ten percent of the fees received are deposited in the
State General Fund while the remaining 90 percent are used for Board operations
within the limits of an annual budget approved by the Legislature.
Our review of the Board of Optometry revealed that while regulation of
optometrists by a state agency is needed, the Board of Optometry has not
fulfilled this need. This assessment is based on the findings that:
1. The Board of Optometry has not effectively protected the public from
incompetent or unscrupulous optometrists. ( page 15 )
2. The examination process of the Board of Optometry is not in
compliance with state law and is of questionable validity. ( page 38)
Our review also revealed that the Board of Optometry has not revised
promulgated rules which are inconsistent with federal regulations and Arizona
statutes. ( page 53)
I n a d d i t i o n , our review disclosed t h a t since f i s c a l year 1976- 77, t h e Arizona
Board of Optometry has s u b s t a n t i a l l y improved the documentation and recording
of its proceedings; however, a d d i t i o n a l improvements a r e still needed t o assure
Board records a r e maintained i n a manner c o n s i s t e n t with s t a t u t o r y
requirements. ( page 65)
Our review a l s o disclosed t h a t the Arizona Board of Optometry has been
substandard i n its encouragement and use of p u b l i c input i n its operations.
Information regarding meeting n o t i c e s , proposed r u l e s and r e g u l a t i o n s ,
l e g i s l a t i v e proposals, and Board a c t i o n s has not been adequately provided t o
l i c e n s e d o p t o m e t r i s t s or t h e consumers o f optometric s e r v i c e s . ( page 79)
Our review revealed t h a t changes i n the l i c e n s e renewal system can improve the
e f f i c i e n c y and e f f e c t i v e n e s s of Board operations. ( page 88)
F i n a l l y , an a n a l y s i s o f r e c e n t l e g i s l a t i v e a c t i o n s i n other s t a t e s revealed
t h a t 23 s t a t e s have authorized o p t o m e t r i s t s t o use s p e c i f i e d drugs o r pharma-c
e u t i c a l agents i n t h e i r p r a c t i c e . ( page 93)
It is recommended t h a t one of the two following a l t e r n a t i v e s be considered:
1. Arizona Revised S t a t u t e s , T i t l e 32, Chapter 16, be amended t o provide
the Board of Optometry with the s p e c i f i c requirement t o i n v e s t i g a t e
a l l complaints and t o expand enforcement r e s p o n s i b i l i t i e s including
the power t o censure an optometrist who has provided f a u l t y goods or
s e r v i c e s . I n a d d i t i o n , the Board of Optometry should e s t a b l i s h
s p e c i f i c procedures f o r t h e i n v e s t i g a t i o n and r e s o l u t i o n of a l l
complaints. ( page 36)
2. The L e g i s l a t u r e and Governor approve a Health Occupations Council
composed of r e p r e s e n t a t i v e s of h e a l t h occupations s u b j e c t t o
r e g u l a t i o n and s u b s t a n t i a l public membership. The purpose o f t h e
Council would be t o review and coordinate l i c e n s i n g r e g u l a t i o n s ,
e s t a b l i s h d i s c i p l i n e and enforcement procedures and resolve scope of
p r a c t i c e questions. ( page 37)
It is a l s o recommended t h a t :
1. E i t h e r ARS 32- 1724 be amended t o allow t h e acceptance o f t h e National
Board of Examiners i n Optometry ( NBEO) s c o r e s i n Arizona o r the Board
of Optometry adopt r u l e s allowing t h e acceptance of NBEO s c o r e s i n
l i e u of the w r i t t e n p o r t i o n o f the Arizona examination. ( page 51)
2. The Board of Optometry r e v i s e r u l e s R4- 21- 03. A and R- 21- 04. B,
regarding misleading a d v e r t i s i n g and recording 15 c o n d i t i o n s o f a
p a t i e n t , r e s p e c t i v e l y , t o become c o n s i s t e n t with f e d e r a l r e g u l a t i o n s
and f e d e r a l and state a n t i t r u s t laws. The Board a l s o continue its
e f f o r t s t o a p p r o p r i a t e l y r e v i s e Rule R- 21- 03. B regarding a d v e r t i s i n g
as an optometric s p e c i a l i s t . Upon r e v i s i n g r u l e s R4- 21- 03. A and R4-
21- 03. B, t h e Board should submit these r u l e s t o the Federal Trade
Commission f o r approval. The Board of Optometry communicate t o t h e
J o i n t Committee of Reference for Health and Human Resources on t h e
r e s u l t s of its e f f o r t s t o r e v i s e t h e s e r u l e s . ( page 64)
3. The Board of Optometry e s t a b l i s h a record management program t o
a s s u r e t h a t its records a r e adequate as required by s t a t e law. ( page
78
4. The Board of Optometry adopt methods t o encourage p u b l i c i n p u t and
p a r t i c i p a t i o n i n the promulgation of r u l e s and r e g u l a t i o n s and
development of l e g i s l a t i v e proposals. ( page 87)
5. ARS 32- 1725, which r e q u i r e s annual r e g i s t r a t i o n , be amended t o allow
t h e Board of Optometry t o adopt a l e s s frequent r e g i s t r a t i o n
schedule. ARS 32- 1726 be amended t o permit the Board t o charge an
increased f e e f o r l e s s frequent renewal of l i c e n s e s . ( page 92)
INTRODUCTION AND BACKGROUND
History O f Optometry
Spectacle makers, or o p t i c i a n s , began grinding lenses and f i t t i n g and s e l l i n g
s p e c t a c l e s , often in small shops or jewelry s t o r e s , i n America as early a s the
1700' s. In the l a t e 18001s, " r e f r a c t i n g o p t i c i a n s n began to conduct eye
examinations in order t o a s s i s t customers in t h e s e l e c t i o n of appropriate
spectacles. The first proposed l e g i s l a t i o n to define optometry i n the United
S t a t e s was considered i n New York. In 1901, Michigan enacted the first
optometry law and by 1925 every s t a t e had passed laws defining and regulating
the profession of optometry.
Arizona Establishes Laws That
Regulate The Practice O f Optometry
The 24th Legislative Assembly of t h e T e r r i t o r y of Arizona enacted Arizona's
first optometry law in 1907. The law defined the practice of optometry as:
!' The employment o f s u b j e c t i v e and objective means t o
determine the accommodative and r e f r a c t i v e s t a t u s of the
eye and the scope of its functions i n general."
The law also established the !' Arizona T e r r i t o r i a l Board of Examiners i n
Optometryu to examine, license and regulate optometrists.
This Act was incorporated i n t o the S t a t e ' s f i r s t Civil Code in 1913. Since
then, several l e g i s l a t i v e amendments have been adopted which s u b s t a n t i a l l y
changed the optometry law. A notable example of l e g i s l a t i v e change is the
c u r r e n t d e f i n i t i o n o f t h e p r a c t i c e of optometry t h a t reads:
"' Practice of optometry' means the examination and
r e f r a c t i o n of the human eye and its appendages, and the
employment of any objective or subjective means or methods
other than the use of drugs, medicine or surgery, f o r t h e
purpose of determining any visual, muscular, neurological
or anatomical anomalities o f t h e eye, the use of any
instrument or device to t r a i n the v i s u a l system or correct
any abnormal condition of the eye or eyes and the
prescribing, f i t t i n g or employment of any lens, prism,
frame or mountings for the correction or r e l i e f of or aid
to the visual function."
The Optometry Profession Today
Today optometrists provide primary eye care for the majority of Americans,
performing 70 percent of all visual examinations, writing 60 percent of all
prescriptions and dispensing 60 percent of all eye glasses. Optometrists
occupy the middle tier of the eye care health hierarchy as shown below:
Ophthalmologists - physicians who specialize in the medical and surgical
diagnosis and treatment of defects and diseases of the eye.
Optometrists - persons who scientifically examines the eye to detect
diseases or defects, and prescribes correctional lenses or exercises.
Opticians - individuals who fit, supply and adjust eye glasses and contact
lenses prescribed by ophthalmologists and optometrists.
The Board Of Optometry
Prior to a 1979 legislative amendment, the Board consisted of three licensed
optometrists appointed by the Governor to serve four- year terms. Legislation a
in 1979 changed the Board membership to five individuals, four licensed
optometrists and one member representing the general public.
The Board has the primary responsibility for regulating the practice of a
optometry in Arizona. The duties of the Board include evaluating applications
for examination and licensure, administering examinations, issuing licenses,
enacting rules and regulations and resolving complaints against licensed
optometrists.
Table 1 summarizes the activities of the Board of Optometry for fiscal years
1975- 76 through 1978- 79.
TABLE 1
ACTUAL EXAMINATION, INITIAL AND RENEWAL LICENSING
ACTIVITY OF BOARD OF OPTOMETRY* FOR FISCAL YEARS
1975- 76 THROUGH 1977- 78 AND PROJECTED FOR FISCAL
YEARS 1978- 79 AND 1979- 80
Applications
for Examinations I n i t i a l Licenses Issued Licenses Renewed
Percentage Percentage Percentage
F i s c a l Number of Change From Number of Change From Number of Change From
Year Applications F/ Y 1975- 76 Licenses F/ Y 1975- 76 Licenses F/ Y 1976- 77
* These s t a t i s t i c s may not be completely accurate, see page 65 for a
discussion of inaccurate record keeping. ** The a c t u a l number of optometrists practicing i n Arizona is s i g n i f i c a n t l y
l e s s than the t o t a l number licensed. For instance, as of June 30, 1978,
only 203 of the 461 optometrists issued i n i t i a l and renewal licenses were
practicing i n Arizona.
The Board and its a c t i v i t i e s are funded through fees charged for examinations
and licenses issued. Ten percent of t h e f e e s received are deposited i n the
s t a t e general fund while the remaining ninety percent are used for Board
operations within the l i m i t s of an annual budget approved by the Legislature.
In April 1979, the Legislature and Governor approved an increase in the maximum
fees t h a t can be charged by the Board of Optometry. Effective June 9, 1979,
the Board increased the annual license renewal fee from $ 20 to $ 50. Similar
increases have been made to the fees charged f o r examination a p p l i c a t i o n s ,
r e c i p r o c i t y a p p l i c a t i o n s and o r i g i n a l and duplicate licenses. These increased
fees w i l l increase the Board's net r e c e i p t s and ending fund balances a s shown
i n Table 2.
TABLE 2
ACTUAL AND PROJECTED FEE RECEIPTS AND
EXPENDITURES BY THE BOARD OF OPTOMETRY
DURING FISCAL YEARS 1975- 76 THROUGH
1979- 80
Actual Estimated
F i s c a l Year 1975- 76 1976- 77 1977- 78 1978- 79 1979- 80
NetReceipts ( f e e s ) * $ 11,975 $ 9,436 $ 8,186 $ 23,715 $ 27,450
Expenditures 8,264 9,500 11,282 12,851 14,900
Change i n Fund
Balance 3,711 ( 64) ( 3,096) 10,864 12,550
Beginning Fund
Balance 5,479 9,190 9,126 6,030 16,894
Znding Fund
Balance
* Amount is net a f t e r depositing ten percent of the amount received in the
s t a t e general fund.
The Board of Optometry has no full- time support s t a f f . A l l support functions
are provided by the Department of Administration through the Arizona State
Boards Administrative Office ( ASBAO). The ASBAO, created in 1976, was designed •
t o provide s e c r e t a r i a l , c l e r i c a l and other general support functions and o f f i c e
f a c i l i t i e s to 11 small s t a t e boards and commissions, including the Board of
Optometry. Prior to t h i s , c l e r i c a l work was performed by Board of Optometry
members and part- time employees. •
The Office o f the Auditor General expresses its g r a t i t u d e to the members of the
Board of Optometry and the s t a f f of the Arizona S t a t e Boards Administrative
Office for t h e i r cooperation, assistance and consideration during the course of a
our audit.
SUNSET FACTORS
In accordance with ARS sections 41- 2351 through 41- 2374, nine f a c t o r s are to be
considered to determine, in p a r t , whether the Board of Optometry should be
continued or terminated.
These f a c t o r s are:
1. Objective and purpose in e s t a b l i s h i n g t h e Board.
2. The degree to which the Board has been able to respond to the needs of the
public and the efficiency with which it has operated.
3. The extent to which the Board has operated within the public i n t e r e s t .
4. The extent to which r u l e s and regulations promulgated by the Board are
consistent with the l e g i s l a t i v e mandate.
5. The extent to which the Board has encouraged input from the public before
promulgating its rules and regulations and the extent t o which it has
informed the public as t o its actions and t h e i r expected impact on the
public.
6. The extent to which the Board has been able to i n v e s t i g a t e and resolve
complaints t h a t a r e within its j u r i s d i c t i o n .
7. The extent to which the a t t o r n e y g e n e r a l or any other applicable agency of
s t a t e government has t h e a u t h o r i t y t o prosecute actions under enabling
l e g i s l a t i o n .
8. The extent to which the Board has addressed d e f i c i e n c i e s i n its enabling
s t a t u t e s which prevent it from f u l f i l l i n g its s t a t u t o r y mandate.
9. The extent to which changes are necessary i n the laws of the Board to
adequately comply with t h e f a c t o r s l i s t e d i n t h i s subsection.
SUNSET FACTOR: THE OBJECTIVE AND
PURPOSE I N ESTABLISHING THE BOARD
In its 1979- 80 budget request, the Board of Optometry s t a t e d t h e g o a l s of the
Board to be:
" To l i c e n s e q u a l i f i e d optometrists i n Arizona i n order to
assure competency of optometric practice i n Arizona f o r
t h e p r o t e c t i o n of the health, welfare and s a f e t y of the
public. If
In order to assure t h a t q u a l i t y optometric care is provided in Arizona, the
Board has been assigned the authority to:
1) promulgate r u l e s and regulations governing t h e p r a c t i c e of
optometry, ( ARS 32- 1705)
2 ) a c c r e d i t schools and colleges of optometry, ( ARS 32- 1705)
3) examine and l i c e n s e a p p l i c a n t s , ( ARS 32- 1723, 32- 1724) and
4 i n v e s t i g a t e complaints and suspend or revoke l i c e n s e s f o r
v i o l a t i o n s of the optometry law. ( ARS 32- 1705, 32- 1755)"
SUNSET FACTOR: THE DEGREE TO WHICH
THE BOARD HAS BEEN ABLE TO RESPOND TO
THE NEEDS OF THE PUBLIC AND THE EFFICIENCY
WITH WHICH IT HAS OPERATED
The Board of Optometry has been d e f i c i e n t i n its investigation and resolution
of complaints from consumers f o r services rendered by optometrists licensed
with the Board. The Board did not d i s c i p l i n e a s i n g l e optometrist as a r e s u l t
of a consumer complaint f i l e d during the four- year period ending December 31,
1978, i n s p i t e of the f a c t t h a t consumers f i l e d 50 complaints with the Board
during t h a t period. The Board has c o n s i s t e n t l y 1) f a i l e d to conduct proper
complaint i n v e s t i g a t i o n s t o determine i f professional incompetence or
malpractice was involved, 2) ruled t h a t it has no j u r i s d i c t i o n over
complaints, or 3) considered complaints closed i f optometrists made
reparations to the complainants.
The actions o r i n a c t i o n of incompetent and unscrupulous optometrists can r e s u l t
in serious physical harm to the p a t i e n t , including blindness. Because the
Board has not been s u f f i c i e n t l y aggressive i n its i n v e s t i g a t i o n and resolution
of consumer complaints, it has not e f f e c t i v e l y protected the health, s a f e t y and
welfare of the public.
The Board of Optometry appears to be operating e f f i c i e n t l y . In the three years
from f i s c a l years 1974- 75 t o 1977- 78, expenditures per license holder have
increased from $ 22.49 t o $ 25.94, an increase of only 15.34 percent. The Board
has contracted with the Department of Administration's, Arizona S t a t e Boards
Administration Office ( ASBAO), to provide c l e r i c a l assistance. An analysis by
the Office o f the Auditor General revealed t h a t efficiency could be improved i f
the ASBAO workload were r e d i s t r i b u t e d by implementation of biennial
r e g i s t r a t i o n of optometrists. ( See page 88 f o r a discussion of t h i s issue.)
SUNSET FACTOR: THE EXTENT TO WHICH
THE AGENCY HAS OPERATED WITHIN THE
PUBLIC INTEREST
According to the Arizona Legislative Council, i n a memorandum dated May 2,
1979*, t h e r e g u l a t i o n of optometrists would be* in the i n t e r e s t of maintaining
the p u b l i c ' s h e a l t h and welfare. The opinion noted:
" Since t h e p r a c t i c e o f optometry involves the study of the
s t r u c t u r e , functions, d e f i c i e n c i e s and corrections of the
human eye, it has a d i r e c t r e l a t i o n s h i p to the health of
the human body ... Being thus r e l a t e d t o public health,
there can be l i t t l e disagreement a s t o t h e a u t h o r i t y of the
l e g i s l a t u r e t o regulate optometry ... t o safeguard the
public health and welfare and t o protect the public
against ignorance, incapacity, deception or fraud because
of incompetent or unscrupulous p r a c t i t i o n e r s . " ( Emphasis
added
* Appendix I1 contains a copy of t h i s Legislative Council memorandum.
10
While regulation o f optometrists by a s t a t e agency is needed, the Board of
Optometry has not f u l f i l l e d t h i s need. The Board has not responded to the
consumer need for protection from incompetent or unscrupulous optometrists by
its f a i l u r e to adequately i n v e s t i g a t e and resolve consumer complaints.
( page 15) The examination process o f t h e Board of Optometry is not i n
compliance with s t a t e law and is of questionable v a l i d i t y . ( page 38) In
a d d i t i o n , s e v e r a l Board- enacted rules are in c o n f l i c t with federal and s t a t e
a c t s outlawing anticompetitive p r a c t i c e s . ( page 52) And, public n o t i f i c a t i o n
of Board actions, and encouragement of public p a r t i c i p a t i o n i n Board a f f a i r s
has been substandard. ( page 7 9 ) Therefore, it is d i f f i c u l t to conclude t h a t
the Arizona Board of Optometry has operated within the i n t e r e s t of the
consumer.
However, s e v e r a l r e c e n t Board actions have been notable. During 1979 the Board
successfully proposed l e g i s l a t i v e amendments including requirements for ( I
continuing education for optometrists and lay membership on the Board.
Additionally, the Board has i n i t i a t e d plans to e s t a b l i s h educational seminars
i n Arizona.
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS PROMULGATED BY a
THE BOARD ARE CONSISTENT WITH LEGIS-LATIVE
MANDATE
Three Board- enacted r u l e s appear t o be i n c o n f l i c t with Federal Trade
Commission regulations and federal and s t a t e a n t i t r u s t laws. ( For a discussion
of t h i s issue, see page 52.)
Based upon a review of a l l other Board- enacted r u l e s , it appears t h a t a l l other
r u l e s are consistent with l e g i s l a t i v e mandate.
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS ENCOURAGED INPUT FROM THE PUBLIC
BEFORE PROMULGATING ITS RULES AND REGULATIONS
AND THE EXTENT TO WHICH I T HAS INFORMED THE
PUBLIC AS TO ITS ACTIONS AND THEIR EXPECTED
IMPACT ON THE PUBLIC
The Board of Optometry has been substandard in its e f f o r t s t o inform both
r e g i s t r a n t s and the public consumer of optometric services regarding r u l e s and
regulations and other Board actions. ( page 79 )
Although complying with legal requirements regarding posting of meeting and
public hearing notices regarding proposed rules and regulations, a survey of
optometrists licensed by the Board of Optometry revealed t h a t the vast majority
of optometrists were not informed of meeting dates and proposed and a c t u a l
Board actions. In addition, when compared to other Arizona regulatory bodies,
the Board of Optometry is decidedly substandard i n its e f f o r t s t o obtain
consumer p a r t i c i p a t i o n i n its decision making. ( See page 79 for a discussion
of t h i s issue.)
SUNSET FACTOR: THE EXTENT TO WHICH THE a
AGENCY HAS BEEN ABLE TO INVESTIGATE AND
RESOLVE COMPLAINTS THAT ARE WITHIN ITS
JURISDICTION
The Board of Optometry has not demonstrated s i g n i f i c a n t e f f e c t i v e n e s s i n
i n v e s t i g a t i n g and resolving consumer complaints. The Board has f a i l e d to
c o n s i s t e n t l y and adequately i n v e s t i g a t e consumer complaints t o o b t a i n t h e
f a c t s surrounding the complaints.
A s a r e s u l t of t h i s inadequate i n v e s t i g a t i v e process, together with question-able
s t a t u t o r y i n t e r p r e t a t i o n s by the Board and a Board policy of dropping
complaints when a remedy, such as returning money, is provided t o the com-p
l a i n a n t , no optometrist as o f J u l y 31, 1979, has been disciplined f o r any
consumer complaint f i l e d since January 1, 1975. ( See page 15 for an analysis
of t h i s issue.)
SUNSET FACTOR: THE EXTENT TO WHICH THE
ATTORNEY GENERAL OR ANY OTHER APPLICABLE
AGENCY OF STATE GOVERNMENT HAS THE AUTHORITY
TO PROSECUTE ACTIONS UNDER ENABLING LEGISLATION
The Board of Optometry has, according to Legislative Council, authority to
suspend or revoke an optometrist's license for violations of an optometry law
t h a t is comparable to o t h e r h e a l t h - r e l a t e d regulatory boards i n Arizona. a
Arizona Revised S t a t u t e s 32- 1755 defines the grounds on which an optometrist's
license can be suspended or revoked. ARS 32- 1705 subsection E s t a t e s t h a t the
Board may h i r e i n v e s t i g a t o r s to a s s i s t i n i n v e s t i g a t i o n s of violations of
optometry laws. However, the Board is not s t a t u t o r i l y required to i n v e s t i g a t e a
every complaint and the absence of such l e g i s l a t i v e mandate may have
contributed to the Board's f a i l u r e to conduct adequate investigations of
consumer complaints. ( See page 15 for a complete discussion of t h i s issue.)
a
Arizona Revised S t a t u t e s 32- 1759 makes the practice of optometry without a
v a l i d l i c e n s e a c l a s s 2 misdemeanor. The County and City Attorneys are
responsible for prosecuting such criminal v i o l a t i o n s of optometry law.
a
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS ADDRESSED DEFICIENCIES I N ITS
ENABLING STATUTES WHICH PREVENT I T FROM
FULFILLING ITS STATUTORY MANDATE
Since 1975 the Board of Optometry has each year proposed l e g i s l a t i v e changes in
the optometry law to address d e f i c i e n c i e s t h e Board perceived i n its enabling
s t a t u t e s . The Board's attempts to amend the optometry law were ultimately
successful during the 1979 l e g i s l a t i v e session. Changes i n the law included:
1. Increased membership o f t h e Board from three to five and the addition
of one public member.
2. Continuing professional education requirements for renewal of
licenses to practice optometry.
3. Changes i n the subjects covered i n t h e w r i t t e n examination for
licensing.
4. Increased maximum amount of fees t h a t can be charged for l i c e n s e s ,
examinations and other Board services.
SUNSET FACTOR: THE EXTENT TO WHICH CHANGES
ARE NECESSARY I N THE LAWS OF THE BOARD TO
ADEQUATELY COMPLY WITH THE FACTORS LISTED a
I N THIS SUBSECTION
For a discussion o f these issues, see pages 37, 51 and 92.
FINDING I
THE ARIZONA BOARD OF OPTOMETRY HAS NOT EFFECTIVELY PROTECTED THE PUBLIC FROM
INCOMPETENT OR UNSCRUPULOUS OPTOMETRISTS.
The Board of Optometry has been d e f i c i e n t in its i n v e s t i g a t i o n and resolution
of complaints from consumers for services rendered by o p t o m e t r i s t s l i c e n s e d
with the Board. The Board did not d i s c i p l i n e a s i n g l e optometrist as a r e s u l t
of a consumer complaint f i l e d during the four- year period ending December 31,
1978, i n s p i t e of the f a c t t h a t consumers f i l e d 50 complaints with the Board
during t h a t period.
The Board has c o n s i s t e n t l y : 1) f a i l e d t o conduct proper complaint
i n v e s t i g a t i o n s to determine if professional incompetence or malpractice was
involved, 2) ruled t h a t it has no j u r i s d i c t i o n over complaints, or 3)
considered complaints closed if optometrists made reparations t o the
complainants.
The actions o r i n a c t i o n of incompetent and unscrupulous optometrists can r e s u l t
i n serious physical harm t o t h e p a t i e n t , including blindness. Because the
Board has not been s u f f i c i e n t l y aggressive i n its i n v e s t i g a t i o n and resolution
of consumer complaints, it has not e f f e c t i v e l y p r o t e c t e d t h e health, s a f e t y and
welfare of the public.
Legal Definition O f Optometry
And Connection To Health And
Welfare O f Public
Arizona Revised S t a t u t e s 32- 1701, paragraph 3, defines the p r a c t i c e of
optometry t o include the examination of the eye f o r r e f r a c t i v e e r r o r ,
recommendation of c o r r e c t i v e l e n s e s and recognition o f eye diseases.
If.. . The examination and r e f r a c t i o n o f t h e human eye and
its appendages, and the employment of any objective or
subjective means or methods other than the - use of drugs,
medicine or surgery, for the purpose of determining any
v i s u a l , muscular, neurological or anatomical anomalies of
the eye, the use of any instrument or device to t r a i n the
v i s u a l system or c o r r e c t any abnormal condition of the eye
or eyes and t h e p r e s c r i b i n g , f i t t i n g or employment of any
l e n s , prism, frame or mountings f o r the correction or
r e l i e f of or aid t o the v i s u a l function." ( Emphasis
added)
According to a Legislative Council opinion dated May 2, 1979*, there is a
d e f i n i t e connection based on l e g a l precedent between the human eye and physical
health:
" Since the p r a c t i c e of optometry involves the study of the
s t r u c t u r e , functions, d e f i c i e n c i e s and corrections of the
human eye, it has a d i r e c t r e l a t i o n s h i p to t h e h e a l t h of
the human body. ( c i t a t i o n s omitted) Being thus related t o
p u b l i c h e a l t h , there can be l i t t l e disagreement a s t o the
a u t h o r i t y of the l e g i s l a t u r e to regulate optometry and
other a l l i e d health professions to safeguard the public
health and welfare and t o p r o t e c t t h e p u b l i c a g a i n s t
ignorance, incapacity, deception or fraud because of
incompetent or unscrupulous practitioners." ( Emphasis
added)
I n other s t a t e s , optometrists have been defendants i n c o u r t c a s e s t h a t
demonstrate the physical harm or damage t o the health of the human eye t h a t can
occur i n connection with the p r a c t i c e of optometry.
In Winograd v. Johnson, Colorado, No. 75- 284, on December 16, 1976, the court
concluded, i n a case regarding f a i l u r e of an optometrist t o r e f e r a p a t i e n t who
had glaucoma, t h a t although optometrists could not l e g a l l y " diagnose"
glaucoma, they did have a: 0
"... right and duty to r e f e r or d i r e c t a p a t i e n t t o a
physician whenever... a p a t i e n t e x h i b i t s signs or symptoms
of a d i s e a s e r e q u i r i n g treatment by an ophthalmologist or
other physician."
In Fairchild v. Brian, 354 S. 2d 675, the Louisiana Court of Appeals on
December 28, 1977, awarded the p a t i e n t $ 25,000 and her husband $ 2,722.15 f o r
medical expenses c i t i n g negligence by the optometrist:
" The optometrist was negligent for f a i l i n g to r e f e r the
p a t i e n t t o an ophthalmologist and h i s negligence
contributed t o the delay i n discovering a detached
r e t i n a . IT
* Appendix I1 contains a copy of t h i s Legislative Council opinion.
I 6
Board Authority For Investigation
And Resolution Of Complaints
According to the information submitted by the S t a t e Board of Optometry during
the 1979- 80 s t a t e budgeting process, the Board is:
"... authorized to regulate t h e p r a c t i c e of optometry
by : promulgating r u l e s and r e g u l a t i o n s n o t
inconsistent with t h i s a c t , accrediting schools and
colleges of Optometry, examining and licensing of
a p p l i c a n t s , denying, suspending or revoking a license
f o r a j u s t cause and i n v e s t i g a t i n g complaints
regarding the optometric profession ...." ( Emphasis
added)
In addition, Arizona Revised S t a t u t e s 32- 1705 subsection E provides the Board
with authority to obtain assistance for complaint investigation.
'! The Board may h i r e i n v e s t i g a t o r s to a s s i s t i n the
i n v e s t i g a t i o n o f v i o l a t i o n s o f t h i s chapter, and
other employees required to enforce the provisions
thereof. ( Emphasis added)
Further, ARS 32- 1755 defines the grounds upon which the Board of Optometry may,
i n its d i s c r e t i o n , suspend or revoke an optometrist's license:
" After notice and hearing the board i n its discretion
may suspend or revoke the c e r t i f i c a t e of a registered
optometrist for any of the following reasons:
1) Conviction of an offense involving moral
turpitude
2) Obtaining a c e r t i f i c a t e by fraud or deceit
3) Conduct l i k e l y to deceive or defraud the public
4) Unprofessional conduct
...
12) Violation of any of the r u l e s and regulations
adopted by the board pursuant t o its authority
hereunder." ( Emphasis added)
Unprofessional conduct has been defined in ARS 32- 1701
paragraph 5, to include:
".. .
( g) Malpractice.
( h) Any conduct or p r a c t i c e , including incompetency,
which c o n s t i t u t e s a danger to the health, welfare or
s a f e t y of a p a t i e n t or the public.'? ( Emphasis added)
An analysis by Legislative Council revealed t h a t t h e a u t h o r i t y of the Board of
Optometry t o d i s c i p l i n e optometrists is comparable t o other health- related a
Arizona regulatory bodies. A memorandum from Legislative Council dated August
8, 1979*, s t a t e d , i n part:
" A selected review of s t a t u t o r y provisions** prescribing
grounds f o r denial, suspension or revocation of licenses
i n various medically- related f i e l d s indicates t h a t the
Optometry Board s t a t u t e s f a l l within a common regulatory
p a t t e r n and are not especially noteworthy for e i t h e r t h e i r
s t r o n g p o i n t s or t h e i r weak points. In f a c t , the same
' b o i l e r p l a t e ' language can be found throughout most of
T i t l e 32. I f Arizona Revised S t a t u t e s section 32- 1755 is
regarded as ' weak' then the majority of T i t l e 32
regulatory provisions must be viewed i n the same manner."
Finally, according t o Legislative Council, the Board of Optometry as a s t a t e
agency is vested with t h e d i s c r e t i o n t o " informally" dispose of a case a f t e r a a
hearing to determine whether or not to suspend or revoke the c e r t i f i c a t e held
by an optometrist. In a memorandum dated July 25, 1979,*** t h e L e g i s l a t i v e
Council s t a t e d :
* A f u l l t e x t of t h i s memorandum is contained i n Appendix 111. * See Arizona Revised S t a t u t e s sections 32- 852 and 32- 854.0 1 ( podiatry) ;
32- 924 ( c h i r o p r a c t o r s ) ; 32- 1201 and 32- 1263 ( d e n t i s t r y ) ; 32- 1401 and 32-
1451 ( medicine); 32- 1554 ( naturopathy); 32- 1663 ( nursing); 32- 1927
( pharmacists); 32- 2042 ( physical therapy); 32- 2081 ( psychologists). *** A f u l l t e x t of t h i s memorandum is contained in Appendix I V .
" Since the Board of Optometry is a s t a t e agency, it is
clear t h a t the provisions o f the Administrative Procedure
Act ( Arizona Revised S t a t u t e s section 41- 1001 et seq.)
apply t o a l l proceedings of the Board. ( c i t a t i o n s
omitted) Thus, unless precluded by law, the provisions o f
Arizona Revised S t a t u t e s section 41- 1009, subsection D,
which allows for an informal disposition of a contested
case, apply to actions by the Board of Optometry i n
deciding the l e g a l r i g h t s , d u t i e s or privileges of a
registered optometrist.
... the language of the s t a t u t e does not require t h a t the
Board only suspend or revoke t h e c e r t i f i c a t e . In
addition, there is no proscription against imposing a
l e s s e r penalty s h o r t of suspension or revocation. Because
of t h i s , the Board would not be prohibited from informally
disposing o f a case a s allowed by Arizona Revised S t a t u t e s
section 41- 1009, subsection D.
... the term ' informal d i s p o s i t i o n ' is not defined i n
Arizona Revised S t a t u t e s o r by case law. It appears t h a t
an agreement to or default regarding t h e p e n a l t i e s l i s t e d
i n your l e t t e r ( public letter of reprimand, probation,
require s p e c i f i c educational courses, periodic review or
supervision o f an optometrist's p r a c t i c e by the Board)*
would qualify as an ' informal disposition'."
However, a review o f t h e Board of Optometry's use of its s t a t u t o r y authority to
conduct i n v e s t i g a t i o n s and impose d i s c i p l i n a r y a c t i o n s a g a i n s t optometrists
revealed t h a t the Board's performance is more notable for its absence of
appropriate action than for those limited actions t h a t have been taken.
Complaints Considered By
The Board O f Optometry
The Board of Optometry reviews two types of complaints - consumer complaints
and Board i n i t i a t e d complaints. Consumer complaints are those complaints f i l e d
by persons who believe they have received unsatisfactory or unacceptable
optometric services or products from a licensed optometrist. Board i n i t i a t e d
complaints are primarily concerned with possible violations of the Optometry
Law regarding a d v e r t i s i n g , r e g i s t r a t i o n and use o f t h e titles, " Optometrist" or
" Optometrym by unlicensed persons.
Table 3 summarizes the number and b a s i s o f the complaints reviewed by the Board
from January 1, 1975 through December 31 , 1978.
* Disciplinary penalties l i s t e d i n the Auditor General letter t o the Arizona
Legislative Council.
Basis of Complaint
SUMMARY OF THE NUMBER AND BASIS OF
COMPLAINTS RECEIVED BY THE BOARD OF
OPTOMETRY FROM JANUARY 1, 1975 THROUGH
DECEMBER 31, 1978
Unacceptable Glasses
Misrepresentative Advertising
Basis of Complaint Cannot Be Determined
Due To Inadequate Board Records*
Failure To Release Prescription
Unacceptable Contact Lenses
Not Practicing In State Within 60 Days
After Being Granted License Through
Reciprocity
Use of Another Optometrist's Name
Failure To Provide Goods Purchased
Unacceptable Services
Advertising As An Optometrist Without
A License
Optometrist Charging Referral Fees
Failure To Keep Accurate Records
Failure To Register Address With County
Optometrist Convicted Of Felony
Number of Complaints
Initiated By
Consumers Board
Total Complaints -- 50 - 28 .
Percentages of Complaints - 64% -- 36%
Total
Complaints
* For a discussion of inadequate Board records, see page 65.
As demonstrated in Table 3, consumer filed complaints constituted 64 percent of
the complaints reviewed by the Board from January 1, 1975 through December 31,
1978.
However, for complaints filed in 1975 through 1978, the only discipline imposed
by the Board against optometrists involved Board initiated complaints. The
Board did not discipline a single optometrist as the result of a consumer
initiated complaint during that period.
Table 4 summarizes the disposition of complaints reviewed by the Board from
1975 through 1978.
TABLE 4
SUMMARY OF BOARD OF OPTOMETRY DISPOSITIONS OF CONSUMER AND BOARD
INITIATED COMPLAINTS FILED DURING CALENDAR YEARS 1975, 1976, 1977 AND 1978'
Board Disposition of Complaint
Discipline Imposed No Disciplinary Action By Board
Board
Ruled No Reparations
Cease Violation Made To No Referred
and of Board Ruled Complainant Record To
Desist Optometry It Had No No Additional o f In Another
Revocation Suspension Letter Law J u r i s d i c t i o n Action Taken Other Disposition Process Entity TOTALS
Consumer Complaints
Unacceptable Glasses or
Contacts - - - 5 13 6 - 2 2 -
Unacceptable Service - - - - 2 - - 1 - -
Other - - - 1 1 6 3 1 - -
, Basis of Complaint Cannot
Be Determined Due To
Inadequate Board Records -- -- -- - 2 -- - 1 -- - 3 -- - 1
Total -- 0- -- 0- -- 0- - 8 - 16 - 13 - 3 - 7 - 2 - 1
% o f T o t a l
Board I n i t i a t e d Complaints
Misrepresentative ,
Advertising
Failure to Register
Address with the County . -
Not Practicing in S t a t e
Within 60 Days of
Receivir~ g License by
Reciprocity 5
Other -
Basis of Complaint Cannot
be Determined Due to
Inadequate Board Records -- -- - -- -- -- --
Total - 5 - 2** * - 5 - 1 -- 0- -- 0- - 1
$ of Total -- 18% -- 7% - l- a % -- 3%
Appendix Vcontains a complete l i s t i n g of each complaint, its source and disposition. ** Being appealed.
9 ~ u:~ pennions& re for a ~ e r i odf three d a v 3 a c h . fi •
A s shown in Table 4, the f i v e license revocations, two suspensions and five
cease and d e s i s t letters t h a t have been imposed by the Board during 1975
through 1978 a l l r e l a t e d to Board i n i t i a t e d complaints concerning advertising
and administrative matters.
a
In resolving consumer complaints, the Board has consistently: 1 ) f a i l e d to
conduct proper complaint i n v e s t i g a t i o n s to determine if professional
incompetence or malpractice was involved, 2) ruled t h a t it has no j u r i s d i c t i o n
a
over complaints, or 3) closed complaints because optometrists made reparations
t o the complainants.
Failure To Conduct Proper
Complaint I n v e s t i g a t i o n s
The Board of Optometry has used a process for i n v e s t i g a t i n g consumer complaints
t h a t is not c o n s i s t e n t l y applied and inadequate t o determine if professional a
incompetency or malpractice was involved.
The Legislative Council, i n a memorandum dated July 20, 1979" noted t h a t while
Arizona Optometry S t a t u t e s do not s p e c i f i c a l l y require the Board t o i n v e s t i g a t e
every complaint, the f a i l u r e to do so would provide l i t t l e protection to the
public :
ll.. . Arizona Revised S t a t u t e s , T i t l e 32, Chapter 16 does
not s p e c i f i c a l l y mandate t h a t every complaint t o the
Optometry Board must be investigated. A general r u l e of
law is t h a t the powers and duties of an administrative
agency must be measured by the s t a t u t e s creating them.
Pressley v. I n d u s t r i a l Commission, 73 Ariz. 22, 236P. 2d
1011 ( 1951 ). Under t h i s r u l e a s t r i c t i n t e r p r e t a t i o n of
chapter 16 would r e s u l t i n the conclusion t h a t the
Optometry Board is not required t o i n v e s t i g a t e every
complaint submitted to it."
* Appendix V I contains a f u l l t e x t of t h i s memorandum.
" However, it can also be argued t h a t the duty to i n v e s t i -
gate complaints is an implied duty which is necessary t o
p r o t e c t t h e public and to e f f e c t i v e l y regulate optome-trists.
A more reasonable i n t e r p r e t a t i o n of chapter 16
r e s u l t s i n the conclusion t h a t the s t a t u t o r y scheme makes
l i t t l e sense if the Board has no duty to i n v e s t i g a t e
complaints. The l e g i s l a t u r e has defined lunprofessional
conduct1 ( Arizona Revised S t a t u t e s section 32- 1701,
paragraph 5 ) , has provided the Board with authority t o
h i r e i n v e s t i g a t o r s t o a s s i s t i n i n v e s t i g a t i o n s of
unprofessional conduct ( Arizona Revised S t a t u t e s section
32- 1705, subsection D) and has prescribed hearing
procedures for d i s c i p l i n a r y a c t i o n f o r unprofessional
conduct ( Arizona Revised S t a t u t e s section 32- 1755). A
f a i l u r e t o i n v e s t i g a t e complaints of unprofessional
conduct would render these s t a t u t o r y provisions
meaningless and would r e s u l t in l i t t l e protection f o r t h e
p u b l i c a g a i n s t unprofessional conduct. Arguably t h i s
would defeat the l e g i s l a t i v e i n t e n t of t h e s e s e c t i o n s .
We are unable t o predict how an Arizona court would
resolve these arguments." ( Emphasis added)
The Legislative Council a l s o discussed what c o n s t i t u t e s a proper
winvestigationn a s follows:
"... a proper i n v e s t i g a t i o n would seem to include, as a
minimum, the following procedures:
a. Interviewing the complainant, the optometrist who is
the subject of the complaint and any t h i r d person who
might have knowledge of the f a c t s o f t h e complaint.
b. Verifying any previous complaint against the
optometrist and t h e d i s p o s i t i o n o f t h e complaint.
c. Checkinq for any previous complaints by the
complainant.
d. Identifying the generally accepted practice i n the
profession for the a c t which is t h e s u b j e c t of the
... complaint.
Finally, Arizona Revised S t a t u t e s s e c t i o n 41- 1010,
r e l a t i n g t o evidence a t hearings i n a contested case,
o f f e r s some insight i n t o the kind of evidence which should
be gathered i n an i n v e s t i g a t i o n : it must be'' substantia1,
r e l i a b l e and probative1." ( Emphasis added)
Our review of the 50 consumer complaints the Board has received from January 1,
1975 through December 31, 1978 revealed t h a t only two complaints were
s u f f i c i e n t l y investigated t o s a t i s f y the c r i t e r i a shown above. The remaining
48 consumer complaints were resolved by a mere review of written correspondence
from the complainant and the optometrist involved. There is no documentation
of Board: 1) interviews o f a l l p a r t i e s involved, 2) v e r i f i c a t i o n of previous
complaints against the optometrist and t h e i r disposition, 3) review of
complaints by the same complainant, or 4) i d e n t i f i c a t i o n of the generally
accepted practice i n the profession. The process of depending upon written
correspondence provided by the complainant and the optometrist does not appear
t o s a t i s f y the requirement t h a t evidence be " s u b s t a n t i a l , r e l i a b l e and a
probative. "
The following cases i l l u s t r a t e t h e c o n s i s t e n t f a i l u r e of the Board t o
adequately i n v e s t i g a t e the circumstances surrounding a consumer complaint i n 4
s p i t e of a l l e g a t i o n s of professional incompetence.
CASE I
Board records include a l e t t e r dated June 6, 1978, from a p a t i e n t to an a
optometrist requesting redress for a pair of u n s a t i s f a c t o r y g l a s s e s :
" My l a s t v i s i t to you, Friday, May 12, 1978, prompts t h i s
letter. I could n o t b e l i e v e what you said i. e., t h a t even
though you prescribed the glasses, t h a t you know and
s t a t e d t h a t you over corrected, t h a t the computer agrees,
t h a t the glasses are u n s a t i s f a c t o r y , t h e r e is nothing t h a t
can be done to correct the s i t u a t i o n .
This has gone on since December 1977. A s I cannot wear the
glasses you prescribed, I am wearing my old ones. My old
ones are s e v e r a l y e a r s old and need to be replaced. Time
is of essence.
A l l I can say i s ; you examined me, you determined what I
needed, you prescribed the glasses. I paid you for your
s e r v i c e s . I want and need a pair o f g l a s s e s t h a t I can see
with properly and made to the high standards of your
profession.
You have the opportunity t o r e c t i f y a serious error
grace f u l l y . ( Emphasis added
The optometrist refused t o provide t h e p a t i e n t with e i t h e r a new pair of
glasses or a refund of money. The p a t i e n t subsequently f i l e d a complaint with
the Board; however, the Board refused to i n v e s t i g a t e t h e matter a s it was not
within t h e i r j u r i s d i c t i o n .
Situation - On September 5, 1978, the Board received the following
complaint:
" Attached please find:
1. L e t t e r t o ( t h e Optometrist) ( sent Return Receipt
Requested)"
2. Prescription by ( the Optometrist)
3. Prescription by another Optometrist
Because ( the Optometrist) has chosen to ignore my
l e t t e r , the f a c t t h a t the g l a s s e s t h a t he prescribed
are u n s a t i s f a c t o r y and I was unable t o wait any
longer, I f i n a l l y had another Optometrist make me a
p a i r of glasses. These glasses a r e s a t i s f a c t o r y and
they are made t o the f i n e standards o f your
profession.
I am i n no position to judge h i s competence, t h a t is
f o r you to decide. However, I f e e l t h a t he did not
prescribe or deliver a proper p a i r o f g l a s s e s ,
although he accepted f u l l payment for them."
( Emphasis added)
Board Action - The Board sent the following l e t t e r dated September 20,
1978 to the complainant.
" The Arizona S t a t e Board of Optometry has
reviewed the correspondence you recently
submitted for consideration.
I n accordance with s t a t e law, the Board has no
control over the fees a doctor charges h i s
p a t i e n t s .
I f you feel the matter has not been resolved,
you may wish t o seek advice of counsel f o r c i v i l
action.
No additional Board action was taken.
* The consumer is r e f e r r i n g to the June 6, 1978 l e t t e r quoted on page 24.
Comment
Although the complainant r a i s e d t h e question o f professional incompetence, the
Board determined t h i s matter d i d n o t c o n s t i t u t e a v i o l a t i o n of optometry law 0
and was, t h e r e f o r e , n o t within its j u r i s d i c t i o n . Board records do not,
however, indicate any i n v e s t i g a t i o n of the case to determine possible incom-petence
of the optometrist involved. ( See page 65 for a discussion of inade-quate
recordkeeping and see page 15 f o r a discussion of inadequate 0
i n v e s t i g a t i o n procedures.)
The Office of the Auditor General requested the Ophthalmology Department of the
University of Arizona Medical School t o inspect t h e p r e s c r i p t i o n s prepared by: .. 1 ) t h e Optometrist against whom the complaint was f i l e d , and 2 ) the Optometrist
who subsequently prescribed a p a i r o f g l a s s e s s a t i s f a c t o r y t o the complainant.
The Ophthalmologists from the Medical School* s t a t e d : ". . . I think the difference in the two p r e s c r i p t i o n s are
highly s i g n i f i c a n t and c a s t out on the competency of the
individual who obtained the first p r e s c r i p t i o n t h a t the
p a t i e n t was unhappy with.
I believe t h a t the consumer was j u s t i f i e d i n r e g i s t e r i n g
h i s complaint. I f u r t h e r believe t h a t additional
i n v e s t i g a t i o n is i n order t o determine if additional
complaints of perhaps a similar nature have been launched
a g a i n s t t h e p r a c t i t i o n e r responsible f o r the e r r o r .
Should the r e s u l t s of such an i n v e s t i g a t i o n be negative, I
believe it would be premature t o pass any judgement on t h i s
episode regarding professional competency."
It should be noted that the Optometrist named i n the above complaint was also
named in three other consumer complaints f i l e d with the Board as of June 30,
1979. The Board has not i n i t i a t e d any i n v e s t i g a t i o n s i n t o t h e p r o f e s s i o n a l @
competency of t h i s Optometrist.
Further, our review of Board records revealed t h a t as of December 31, 1978,
eight optometrists had 26 consumer complaints f i l e d against them. This a
represents 52 percent of a l l the consumer complaints f i l e d with the Board from
January 1, 1975 through December 31, 1978 and yet the Board has not reviewed
any o f these s i x optometrists for professional incompetency.
* Appendix V I I contains a copy of the l e t t e r containing t h i s statement.
No J u r i s d i c t i o n Over The
Com~ laint
From January 1, 1975 t o December 31, 1978 the Board of Optometry received eight
consumer complaints which were judged by the Board to be not a violation of the
Optometry Law, i n t h a t they constituted a dispute over fees.
The following case is an i l l u s t r a t i o n .
Case 2
In January 1979, the Board of Optometry received a complaint alleging t h a t an
optometrist had i n c o r r e c t l y and improperly prescribed contact lenses. The
Board did not take any action on the complaint because, in the Board's view, the
complaint involved a fee dispute.
Situation - On January 18, 1979 the Board received the following l e t t e r :
!' Regarding my problem with a local optometrist I am
pleading for a hopeful solution.
In Oct. 30 - 78 I took my 19 y r . o l d son t o ( t h e
optometrist), optometrist f o r an eye examination and
upon a complete exam of h i s vision, I was advised t o
have him f i t t e d with hard contact lens. Being a
disabled veteran and unemployed I of course asked t o - .
see i f arrangements could be made t o pay t h e c o s t s of
$ 200.00 on installments, I was r e j e c t e d and t o l d it
would be on a cash bases( sic) only. There- fore I have
t o beg and borrow $ 200.00 from friends. After a few
day's my son encountered a l o t of problems with h i s
new lens. Then while i n Gila County ( Globe AZ) I took
my son t o another optometrist ... and upon a complete
and thorough eye exam, he said my son could
definately not wear any kind of l e n s , s o f t or hard and
prescribed and issued him some eye glasses which
immediately improved h i s vision 100 percent. A t my
e a r l i e s t convenience due t o my d i s a b i l i t y and weather
conditions, I confronted ( t h e optometrist) today and
explained the s i t u a t i o n t o him, and asked f o r an
adjustment or compromise of some s o r t , and he was
very rude t o my son and I and hollered numerous f a l s e
accusations and blah - blah - blah Also f l a t l y
refusing t o make any kind of adjustment of p a r t i a l
refund of any n a t u r e . . . I personally f e e l t h a t the
reason he got so up t i g h t , ( s o r t of speak) was when he
saw my son wearing eye glasses and also realized t h a t
he was contradicted by another optometrist on wearing
lens. I strongly f e e l I was conned by ( t h e
optometrist) not t o mention fraud i n other words I
was l e f t holding the bag . . . . I 1 ( Emphasis added)
BoardAction - The Board requested an explanation from the second optome-trist
and received t h i s reply on April 9, 1979:
'' The above was examined by us on 12- 14- 78. The
f a t h e r wanted ( t h e boy's) eyes examined and
reported contacts ( hard) had not given clear or
comfortable vision. How recent was not mentioned,
but the son had not worn any correction f o r some
. time .
He inquired about s o f t contact lens and I remember
t o the best of my knowledge saying t o recheck with
h i s former doctor but t h a t I would not recommend
the s o f t lens due t o the degree of astigmatism.
He said he did not wish t o go back again and ordered
conventional glasses." ( Emphasis added)
Based on a review of t h i s correspondence and without obtaining any f u r t h e r
information, the Board closed the case and sent a l e t t e r dated May 9, 1979
explaining its lack of j u r i s d i c t i o n over fee disputes:
" Upon review, the Board determined t h a t t h i s matter is not
within t h e i r j u r i s d i c t i o n . ( The optometrist) has not
violated Optometry Law, the only area upon which t h i s
Board can rule. Because of t h i s , we must consider the
matter closed.
If you wish t o pursue the matter, you may have other
recourse through c i v i l action by private c o u n ~ e l . ~
Comment
Arizona Revised S t a t u t e s section 32- 1701, paragraph 5 as amended by Laws 1979,
Chapter 50, e f f e c t i v e April 17, 1979 defines wunprofessional conduct" a s
meaning:
" . . .
( g ) Malpractice.
( h) Any conduct or p r a c t i c e , including incompetency,
which c o n s t i t u t e s a danger t o t h e h e a l t h , welfare or
s a f e t y of a patient or the public."
In addition, the Board has prescribed by regulation in A. C. R. R. R4- 21- 04,
subsection G, that:
"( f) For materials dispensed by an optometrist or any of
his agents, the failure, neglect or refusal to be
sure prescriptions are filled accurately and with
quality workmanship in ophthalmic materials shall be
deemed to constitute ' unprofessional conduct'."
According to the Legislative Council in an memorandum dated April 24, 1979:*
" Thus, the board clearly has jurisdiction to receive a
complaint that an optometrist is guilty of unprofessional
conduct as defined by statute and regulation or that a
violation of a statutory provision or regulation has
occurred. However, the response of the board is limited to
holding a hearing on whether the certificate of the
optometrist should be suspended or revoked. No authority
exists for the board to remedy unsatisfactory services or
to require replacement of defective ophthalmic materials.
A dissatisfied patient must resort to other legal
procedures to remedy these perceived wrongs."
Complaints Closed Because
Optometrists Made Reparations
To The Complainants
From January 1, 1975 to December 31, 1978 the Board of Optometry has closed 13
consumer complaints because optometrists made reparations to the complainants.
The Board did not pursue any of these complaints to determine if unprofessional
conduct had occurred.
The following case is an illustration.
* A full text of the memorandum is contained in ~ ~ ~ e n dVIiIIx.
Case 3
In March of 1974, the Board of Optometry received a complaint against an
optometrist alleging professional incompetence on the part of an optometrist.
The Board of Optometry subsequently closed the case stating the matter had been
" settled amicably" because the optometrist had partially reimbursed the
patient the cost of a pair of contact lenses. The only action taken by the
Board to ascertain the facts in this case was to contact the optometrist by
telephone and request that the optometrist submit a written explanation to the
Board.
Situation - On March 21, 1974 the Board of Optometry received the
following complaint alleging professional incompetence on the
part of an optometrist.
" After making an inquiry by telephone at your office,
I was told that, legally, an optometrist is not
allowed to prescribe drugs. It is because my
optometrist did prescribe a drug to me that I am
filing this letter of complaint.
I wish to register a complaint against ( the optometrist),
on the following grounds:
1) I received from ( the optometrist) sub- standard
instructions regarding the cleaning and
ascepticizing of the Soflens contacts he
prescribed for me. Later, I contacted a virus
infection in my eyes which caused me pain, loss
of work time, additional expense, as well as
possible permanent damage.
2) ( The optometrist) prescribed the drug NEOSPORIN
to me.
Attached to this letter is an account of all the
events that have transpired from the time I first saw
( the optometrist) to the present time."
" Saturday, March 9
I woke up desparate! My eyes bothered t e r r i b l y and
the drops seemed t o make it worse. I called ( t h e
doctor), because my M. D. was not i n on Saturday. ( The
doctor) f i t me i n around noon. He looked at my eyes
and said t h a t the i r r i t a t i o n was caused by a virus.
He then wrote the name NEOSPORIN on a piece of paper.
He said t h a t an M. D. could write a prescribe t h i s i n
drop form and t h a t it would cost me $ 6-$ 8. He said
t h a t I could go t o any drug s t o r e and buy the very
same thing i n ointment form f o r l e s s than half the
money. He told me t h a t I was t o put some of t h i s i n
each eye before I went t o bed, and t o then hold the
eyelid shut u n t i l the ointment melted. He a l s o said
t h a t on the box t h a t it would say ' Do not use i n your
eyes1, but t h a t it was the exact same thing a s the
drops and t h a t I was t o use it anyway. ll
Comment
It should be noted t h a t these are two types of NEOSPORIN. One is a p r e s c r i p t i o n
drug t h a t is used t o t r e a t eye inflammations. The other is an over- the- counter
drug t h a t contains a s p- e c i f i c warning against its use i n the eyes. The over-the-
counter NEOSPORIN was the drug the Optometrist recommended h i s p a t i e n t use
i n her eyes.
BoardAction - The Board of Optometry, upon receipt of the complaint,
requested the optometrist by telephone t o respond t o the
a l l e g a t i o n s i n the complaint. The Optometrist responded
a s follows regarding the use of drugs:*
" On February 15, 1974 another v i s i t - tests run.
She complained of eyes i t c h i n g , hurting and redness
and blurred V. A. R r , Eye. Said she had a cold.
Changed the R t lens t o 7.00N I believe I gave her
some p r e f r i n samples a t t h i s time t o use along with
the red eyes t o help c l e a r t h e inflamation.
Returned on March 5, 1974 said she couldn't wear
the CL. & t h a t A M. D. was t r e a t i n g her eye l i d s . I
t o l d her I seen several cases of c o n j u v e t i v i t i s
l a t e l y & It probably was due t o a virus. I have
sent some cases t o ( t h e doctor) and ( t h e doctor)
f o r the same, and they were having trouble g e t t i n g
it cleared up. She said the medicine her doctor was
using didn't seem t o be helping too much. ( When I
f i r s t came t o Scottsdale I took over the eye
records from ( the doctor) and he had t o l d me t h a t
Neosporine t h a t you could by over the counter
without a p r e s c r i p t i o n worked very e f f e c t i v e l y f o r
eye inflamations.)
* Errors i n s p e l l i n g and grammar are as contained i n the o p t o m e t r i s t ' s
response. 3 1
So I suggested t h a t she might t r y Neosporine ( I
did not prescribe) I a l s o t o l d her the l a b l e said
not t o use i n the eye but if she t r i e d it and it
made it worse not t o use it, but she should r e t u r n
t o her M. D. - I did s p e l l the work Neosporin on a
plane piece o f paper, not a p e r s c r i p t i o n blank and
I did not sign it." ( Emphasis added)
Regarding the i n s t r u c t i o n for s o f l e n s c a r e the optometrist responded:
' I... I carefully explained t h a t the F. D. A. approved
method of s e r i l i z a t i o n was with t h e a s e p t i e r o r and
t h a t I must give her one, and t h a t the SRCL was
l i s t e d a s a drug a s a whole package. The soflens,
the case, the s a l t t a b l e t s , t h e s a l i n e b o t t l e , and
the aseptisizon I also explained t h a t I wore the
soflens and had f o r almost a year and had not boiled
my lenses one time. We had found the b e t t e r way of
caring f o r t h e l e n s t o s t o p t h e build up of protien
has t o clean the lens i n soaclens upon removal and
then clean with hot tap water, & then i n t h e s a l i n e
solution and then t o soak them i n the case f i l l e d 4
with s a l i n e solution and 4 with soaclens, and t h a t
I had not had any problem with my lenses building up
a r e s i d u e or a f i l m nor did I get any i n f e c t i o n s ,
and I suggested t h a t she might do the same, again
t e l l i n g her t h a t the F. D. A. ' s approved method was I
had s t a t e d above.
I hope t h i s explains my position - I c e r t a i n l y
meant no harm t o any one only trying t o help my pa-t
i e n t ' s needs, & I hope no l e g a l action w i l l have
to be taken."
Board Action - A t its May 1 I , 1974 meeting, the Board closed the complaint
by s t a t i n g :
" . . . t h e Board considers t h i s matter closed as the
complaint was s e t t l e d amicably."*
* Available Board records indicate t h a t t h e p a t i e n t was reimbursed $ 65 of
$ 155 paid t o the optometrist. It should be noted t h a t the patient had
f i l e d her complaint with the Board a f t e r she had been reimbursed the $ 65
by the optometrist.
Comment
On November 13, 1978, another p a t i e n t o f t h e optometrist ( discussed i n the
above complaint) f i l e d a c i v i l s u i t against the optometrist i n Maricopa County.
In November 1978, the Maricopa County L i a b i l i t y Review Board concluded t h a t the
optometrist had provided h i s patient with substandard care and s t a t e d i n its
advisory opinion:
" We find i n favor of the p l a i n t i f f s ( p a t i e n t ) .
For the guidance of consul, it is the conclusion o f t h e
panel t h a t on August 11, 1977, ( the doctor) f a i l e d t o
com~ lvw ith standard of care which would be ~ r a c t i c e db v a
reasonable and prudent optometrist i n t h i s community ... The
standard o f care required t h a t he e i t h e r perform
additional tests for symptoms of glaucoma o r r e f e r t o an
opthamologist." ( Emphasis added)
On June 5, 1979, a f t e r two days of t r i a l , the above c i v i l s u i t was s e t t l e d out
of court and t h e p a t i e n t was t o receive $ 100,000 f o r damages.
According t o Board minutes, a discussion of the Board's r e s p o n s i b i l i t y t o
pursue complaints was discussed on March 14, 1977:
" There was a general discussion regarding complaints. ( A
Board member) asked ( an Assistant Attorney General) what
form of action the Board can take against an optometrist.
( An Assistant Attorney General) s t a t e d t h a t i n most cases
where an agreement cannot be reached, i n v e s t i g a t o r s are
hired t o obtain a l l the f a c t s surrounding the case.
Because the Board does not have the funds t o do t h i s , it
can be requested of the A. G. ' s o f f i c e and they may be able
t o a s s i s t , time permitting. ( A Board member) asked what
form of d i s c i p l i n a r y a c t i o n may be taken and was t o l d t h a t
it is e n t i r e l y up t o the discretion of the Board;
suspension, probation, revocation, e t c . It is a l s o up t o
the Board t o decide whether or not t o f u r t h e r i n v e s t i g a t e a
complaint even i f it has been dropped by the complainant."
( Emphasis added)
In our opinion, the Board of Optometry has f a i l e d t o demonstrate s i g n i f i c a n t
e f f e c t i v e n e s s i n t h e i n v e s t i g a t i o n and resolution of consumer complaints
regarding the optometric profession. Its policy o f dismissing complaints i f a
remedy is provided t o the complainant avoids the question of whether an
unscrupulous or incompetent optometrist is practicing i n Arizona. In addition,
the Board determinations t h a t consumer complaints are " fee disputesM or t h a t
violations of the ~ ~ t d m e t rLiacw have not occurred without so much as a minimal
i n v e s t i g a t i o n of the f a c t s and evidence i n the complaint c o n s t i t u t e s an
inadequate basis for such determinations. Therefore, the Board of Optometry
has not provided the consumer of optometric services with a s i g n i f i c a n t avenue
f o r thorough i n v e s t i g a t i o n and judicious resolution of complaints.
Board Reasons For I n a c t i v i t y
According t o Board members, the Board has been constrained i n its investigatory
a c t i v i t i e s because of a lack of s u f f i c i e n t funds. Our review of the Board,
however, revealed t h a t the Board has had s u f f i c i e n t funds t o conduct investiga-t
i o n s .
From f i s c a l years 1975- 76 through 1978- 79, the Board has had a surplus of
auailable funds ranging from a low of $ 5,479 t o a high of $ 9,190. These funds
would have been s u f f i c i e n t t o provide for a minimum of 31 i n v e s t i g a t i o n s i n any
one year as shown below.
F i s c a l Year
1975- 76 1976- 77 1977- 78 1978- 79 ( Estimated)
Beginning Fund Balance
Board Receipts
Board Expenses
Ending Fund Balance
Number of Investigations That
Could Have Been Conducted With
Available Funds:
Contracted Investigator
S t a t e Employee
The above calculations are based upon the history of Board investigative
information. For example: In May of 1978 the Board of Optometry paid $ 60.00 in
per diem for a licensed optometrist to conduct a two- day investigation. In
October of 1978, a private investigator charged $ 12.00 per hour for seven hours
work plus $ 37.20 in expenses to conduct an investigation. According to Mr.
Jack Keaton, Chief, Special Investigations Bureau, Department of Economic
Security, the average Investigator I1 classification would receive $ 7.27 per
hour.
It should be noted that the greatest number of consumer complaints received by
the Board during fiscal years 1975- 76 through 1978- 79 was 17 in 1978- 79.
Therefore, the Board has had more than sufficient funds to conduct
investigations into consumer complaints.
Health Occupations Council As
Alternative To Individual
Regulatory Bodies
A Council of State Governments* publication entitled, State Regulatory
Policies - Dentistry and the Health Professions,** contains a description of a
model law creating a State Health Occupations Council. Composed of one
representative from each health area subject to regulation through the law and
at least one- third membership representing the general public, the Council is
authorized to review and coordinate licensing boards regulations, establish
discipline and enforcement procedures, and resolve scope of practice
questions. Such a Council would also coordinate certain functions currently
performed by individual licensing boards by centralizing budgeting, staffing,
investigations and professional discipline.
According to the Council of State Governments, the major purpose of such a
Council is to maintain the perspective of public interest in the regulation of
professions and occupations:
* The Council of State Governments is a joint agency of all the state
governments - created, supported and directed by them. It conducts
research on state programs and problems; maintains an information service
available to state agencies, officials, and legislators; issues a variety
of publications; assists in state- federal liaison; promotes regional and
state- local cooperation; and provides staff for affiliated organizations. ** The model law creating a State Health Occupations Council is contained
in Appendix X.
" Historically, once licensed, the groups tended to be
regulated by autonomous boards composed primarily of
representatives from the profession. Many have felt - that
such a system dominated by practitioners will primarily
protect the interests of the individual professional
groups rather than those of the consumer. State
policymakers often have been frustrated in their attempts
to ensure that the licensure and regulatory process takes
into consideration broad public policy issues such as
costs, availability of services, and fragmentation of
health care delivery." ( Emphasis added)
CONCLUSION
The Board of Optometry has been deficient in its investigation and resolution
of complaints from consumers for services rendered by optometrists licensed 3 *
with the Board. The Board has consistently: 1) failed to conduct proper
complaint investigations to determine if professional incompetence or
malpractice was involved, 2) ruled that it has no jurisdiction over the
complaints, or 3) considered complaints closed if optometrists made
reparations to the complainants.
Because the Board of Optometry has not been sufficiently aggressive in its
investigation and resolution of consumer complaints, it has not effectively
protected the health, safety and welfare of the public.
RECOMMENDATION
The present performance of the Board of Optometry regarding its investigation
and disposition of consumer complaints does not warrant the continuation of
this activity on the Board's part without significant improvements.
It is recommended that consideration be given to one of the two following
alternatives to improve protection of the consumer:
A l t e r n a t i v e I
( a ) Arizona Revised S t a t u t e s , T i t l e 32, Chapter 16, be amended t o provide
t h e Board of Optometry with the s p e c i f i c requirement t o i n v e s t i g a t e
a l l complaints and enforcement r e s p o n s i b i l i t i e s including the power
t o censure an o p t o m e t r i s t who has provided f a u l t y goods or s e r v i c e s .
( b) The Board of Optometry e s t a b l i s h s p e c i f i c procedures f o r t h e
i n v e s t i g a t i o n and r e s o l u t i o n of a l l complaints. These procedures
should meet the stndards of a minimum i n v e s t i g a t i o n c i t e d by t h e
Arizona L e g i s l a t i v e Council.
A l t e r n a t i v e I1
The L e g i s l a t u r e and Governor approve a H e a l t h Occupations Council a s
o u t l i n e d by t h e S t a t e Council of Governments. This a l t e r n a t i v e would
apply t o a l l h e a l t h r e g u l a t o r y e n t i t i e s and is a l s o included i n t h e
recommendations of the Board of Dental Examiners performance a u d i t .
FINDING I1
THE EXAMINATION PROCESS OF THE ARIZONA BOARD OF OPTOMETRY IS NOT I N COMPLIANCE
WITH STATE LAW AND IS OF QUESTIONABLE VALIDITY.
Persons wishing t o be licensed as an optometrist i n Arizona, who have not been
licensed i n other s t a t e s , must pass an examination prepared and administered by
the S t a t e Board of Optometry. Our review of the Board's examination process
revealed t h a t the Board has f a i l e d t o maintain s u f f i c i e n t records t o adequately
document the preparation, administration and grading of its examinations. This
lack of documentation precludes a thorough, independent, and q u a l i t a t i v e
evaluation o f the Board's examination process. However, our review of the
limited documentation t h a t is available 1) indicates t h a t the Board is not i n
compliance with s t a t e law, and 2) r a i s e s serious questions regarding the
v a l i d i t y of the Board's e n t i r e examination process.
Noncompliance With S t a t e Law
Arizona s t a t u t e s specify t h a t an examination s h a l l be given t o persons desiring
t o p r a c t i c e optometry who have not been licensed i n another s t a t e or who do not
meet requirements f o r being granted a l i c e n s e by r e c i p r o c i t y . ARS 32- 1723
provides t h a t i n order t o take the examination, an applicant must meet the
following requirements:
1. Be of good moral character.
2. Must have graduated from a high school accredited by the University
of Arizona or an equivalent education.
3. Must have graduated from a university or school teaching the
profession of optometry accredited by a nationally accepted
accrediting body of optometric education.
4. In l i e u of accredited education, an applicant may furnish a l i c e n s e
granted by another s t a t e or foreign country showing the applicant has
held the license f o r not l e s s than f i v e years and is an a c t i v e
p r a c t i t i o n e r , and furnish additional evidence of knowledge and
a b i l i t y t o practice optometry a s the Board requires.
ARS 32- 1724 provides t h a t applicants who meet these requirements must be
administered an examination i n the subject matter currently being taught i n the
accredited u n i v e r s i t i e s o r schools of optometry.
ARS 32- 1724 f u r t h e r s t a t e s :
" B. A grade of not l e s s than seventy- five per cent i n each
subject is required t o pass the examination successfully."
According t o the President of the Board of Optometry when the Board's written
examinations are graded, the examinations are " curved. t1 Websterls New
Collegiate Dictionary, defines a " curved1' examination as one t h a t measures
individuals against one another r a t h e r than against a standard:
I t . . . a d i s t r i b u t i o n i n d i c a t ( i n g ) the r e l a t i v e performance
of individuals measured against each other t h a t is used
especially i n assigning good, medium or poor grades t o
usually predetermined proportions of students r a t h e r than
i n assigning grades based on predetermined standards o f
achievement." ( Emphasis added)
Thus, when an examination is " curved" usually a predetermined proportion w i l l
be assigned passing and f a i l i n g grades. a
According t o a statement made by the Board president on August 9, 1979, the
1979 written examination w i l l be s t a t i s t i c a l l y curved, passing a l l candidates
receiving scores not l e s s than one standard deviation below the mean score. a
This s t a t i s t i c a l method of assigning a p a s s / f a i l grade w i l l c o n s i s t e n t l y
produce a pass r a t e of approximately 84.13 percent regardless of the raw
examination r e s u l t s .
( I
A review of the pass r a t e s of the Board's 1977 and 1978 examinations has
revealed t h a t such a predetermined proportion may have existed. In 1977, the
percentage of applicants passing the Board's written examination was 85.19
percent while the percentage passing i n 1978 was 84.44 percent.
According t o the Legislative Council, the Board's practice of curving the
w r i t t e n examination is not i n compliance with ARS 32- 1724. In an August 21,
1979 memorandum*, the Legislative Council s t a t e d :
"' There is no s a f e r nor b e t t e r s e t t l e d canon of
i n t e r p r e t a t i o n than t h a t when language is clear and
unambiguous it must be held t o mean what it plainly
expresses1. The language of Arizona Revised S t a t u t e s
section 32- 1724 plainly expresses t h a t i n order for an
applicant t o successfully pass the optometry examination,
t h e a p p l i c a n t must receive a grade of a t l e a s t 75% i n each
tested subject.
The term ' per cent' means ' . . . a s many parts i n the hundred
or so many hundredths.' Black's Law Dictionary, 1293 ( 4th
Ed. 195 1 ) . If the optometry examination consists of only a
written examination and t h a t examination is graded on a
curve, the board of optometry is not complying with the
s t a t u t o r y mandate since the passing r a t e on an examination
graded on a curve would not necessarily be 75%.
In Laws 1979, Chapter 50, s e c t i o n 6, Arizona Revised
S t a t u t e s section 32- 1724 was amended i n p a r t t o remove the
requirement of a written examination. It appears then
t h a t the optometry examination could consist of an oral or
p r a c t i c a l examination as well a s a w r i t t e n examination.
However, the requirement still remains t h a t , i n order t o
pass the examination, an applicant must receive a grade of
not l e s s than 75% i n each subject. ll
Questions Regarding The Validity
O f The Board's Entire Examination
Process
Until 1977, applicants f o r licensure as an optometrist i n Arizona had the
option of taking e i t h e r a written examination administered by the National
Board of Examiners i n Optometry ( NBEO) or a w r i t t e n examination administered by
the Arizona S t a t e Board of Optometry. Since 1977, applicants no longer have
the option o f taking the NBEO examination and must take an examination
administered by the Arizona S t a t e Board of Optometry. Our review of the
Board's examination process r a i s e s serious questions regarding the v a l i d i t y of
the e n t i r e process i n t h a t : 1) the Board has f a i l e d t o maintain s u f f i c i e n t
records t o adequately document the preparation, administration and grading of
its examinations, and 2) the preparation and grading of s p e c i f i c examination
sections are the r e s p o n s i b i l i t y of individual Board members who may not be
q u a l i f i e d o r competent t o perform those functions.
* Appendix I X contains the f u l l t e x t of t h i s memorandum.
Lack O f Adequate Documen-t
a t i o n Regarding Examinations
Administered By The Board
The Board of Optometry does not maintain adequate f i l e s of the annual w r i t t e n
examinations which must be passed by an a p p l i c a n t i n order t o be l i c e n s e d . The
Board's policy with regard t o w r i t t e n examinations t h a t have been administered
t o a p p l i c a n t s and graded is as follows:
- The Board does not r e t a i n t h e examinations taken by a p p l i c a n t s t h a t
passed.
- The Board d e s t r o y s t h o s e examinations taken by a p p l i c a n t s t h a t
f a i l e d 60 days a f t e r the examination is administered.
A s a r e s u l t , the examinations t h a t have been administered t o a p p l i c a n t s and
graded by the Board a r e not a v a i l a b l e f o r review.
Further, the Board has not r e t a i n e d f i l e c o p i e s o f w r i t t e n examinations i n an
orderly manner. For example, when the Office of the Auditor General requested a
copies of a l l Board- developed and administered examinations, the Board was able
t o provide only 18 of an estimated 44 examination s e c t i o n s t h a t have been
developed and administered by the Board s i n c e 1975. I n a d d i t i o n , only one
examination s e c t i o n was i d e n t i f i e d as t o its y e a r o f a d m i n i s t r a t i o n . Complete
s e t s of past annual examinations could not be reviewed, thus precluding a
thorough, independent, and q u a l i t a t i v e evaluation of those examinations
administered by the Board.
Questionable Board Procedures
For Developing And Grading The
Optometry Examination
Until 1977 a p p l i c a n t s f o r l i c e n s u r e as o p t o m e t r i s t s i n Arizona were allowed t o a
submit scores from the National Board of Examiners i n Optometry ( NBEO) i n l i e u
of taking the examination prepared by the Arizona S t a t e Board of Optometry.
However, i n 1976, the Board decided - not t o accept the NBEO scores, and instead
required a p p l i c a n t s t o take an examination developed by members of the Board. 0
The optometry examination f o r a p p l i c a n t s not licensed by other s t a t e s or
e l i g i b l e f o r r e c i p r o c i t y c o n s i s t s of p r a c t i c a l or c l i n i c a l examination and a
w r i t t e n examination.
The p r a c t i c a l or c l i n i c a l examination consists of 1) members of the Board
observing each applicant conducting an eye examination, and 2) a t e s t of each
a p p l i c a n t ' s a b i l i t y t o i d e n t i f y various eye diseases as shown on pathology
s l i d e s .
The written examination is developed and administered by individual Board
members. The process used by the Board t o develop, administer and grade these
examinations is as follows:
- Each Board member is responible for d r a f t i n g t h r e e or four
examination sections.
- There is no requirement t h a t members of the Board review the
examination sections prepared by other members.
- The Board member who drafted an examination s e c t i o n is a l s o
responsible f o r grading the examination section.
- Multiple choice and t r u e / f a l s e questions are machine graded.
- If every applicant misses the same t r u e / f a l s e or multiple choice
question, the question is deleted from the examination.
- When grading essay questions, Board members look f o r s p e c i f i c f a c t s
and award points when these f a c t s a r e mentioned by the applicant.
- When grading essay questions, Board members may award extra points i f
the applicant mentions f a c t s not considered when the questions are
prepared.
- There is no requirement t h a t Board members review essay question
points awarded by other Board members.
The above process r e l i e s heavily on the a b i l i t y and competency o f t h e
individual Board members t o 1) prepare examination sections t h a t a r e a valid
t e s t of an a p p l i c a n t ' s knowledge, and 2) c o r r e c t l y and equitably award points
t o applicants. Individual Board members may not possess such a b i l i t y or be
competent t o perform those functions, especially i f they have not received
s p e c i f i c t r a i n i n g or education.
A Study of Professional and Occupational Licensing i n California, published i n
1977, c i t e d a national authority on occupational licensing t h a t explained the
problems of l o c a l l y developed examinations:
" According t o Benjamin Shimberg of the Educational Testing
Service and author of several s t u d i e s on occupational
l i c e n s i n g , a source of many problems a f f l i c t i n g the
examination process of licensing boards is the f a c t t h a t :
( Emphasis added)
' Board members have taken it upon themselves t o
develop and administer examinations without any
t r a i n i n g f o r t h e task and without outside
helpt .
The study a l s o i d e n t i f i e d another problem regarding Board- prepared
examinations. Namely, t h e q u a l i t y and appropriateness of the questions asked:
" Even more vexing problems e x i s t with regards to the
actual content of the examination. The material content
of the exam ought t o be limited t o those types of questions
t h a t may be shown t o have pertinency t o the professed goals
of licensure.
There have been cases cited by c r i t i c s t o indicate t h a t
some boards ask questions which bear no r e l a t i o n to public
welfare except by the most generous expansion of logic.
I l l u s t r a t i v e of t h i s category are board examinations which
t e s t an a p p l i c a n t ' s knowledge of the custom, history or
theory of the occupation and which require essays on
e s t h e t i c s o r any understanding of helpful business
methods ."
According t o Benjamin Shimberg of the Educational Testing Service, the problems
of Board- prepared examinations could be avoided i f boards turned the job of
designing t e s t s over t o outside t e s t i n g experts or used the national t e s t i n g
programs developed by many of the trade and professional associations.
It should be noted t h a t the U. S. Equal Employment Opportunity Council requires
that, when a professional examination has been shown t o be discriminatory, it
must be validated t o demonstrate a p o s i t i v e c o r r e l a t i o n between the examination
and job performance. According t o the Deputy Director of the NBEO, the NBEO
examination has been validated t o demonstrate such a c o r r e l a t i o n . Further, the
NBEO is contemplating the p o s s i b i l i t y of contracting with e i t h e r the
Educational Testing service or the Psychological Corporation t o develop a new
examination. The examinations prepared by the Board of Optometry have not been
validated for compliance with U. S. Equal Employment Opportunity Council
requirements.
According t o the NBEO as of April 1979, 35 s t a t e s accepted passage of t h e i r
examination as e i t h e r p a r t i a l l y or completely, f u l f i l l i n g the written
examination requirement for licensure. Table 5 lists the s t a t e s accepting the
NBEO examination as of April 1, 1979.
TABLE 5
STATES ACCEPTING THE WRITTEN EXAMINATION
OF THE NATIONAL BOARD OF EXAMINERS I N
OPTOMETRY AS OF APRIL 1 , 1979
Alabama
Alaska
C a l i f o r n i a
Colorado
Connecticut
Delaware
F l o r i d a
Idaho
I l l i n o i s
Indiana
Iowa
Kentucky
Maine
Massachusetts
Michigan
Minnesota
Missouri
Montana
Nebraska
New Hampshire
New Jersey
New York
North Carolina
North Dakota
Oregon
Pennsylvania
Rhode I s l a n d
South Dakota
Tennessee
Utah
Vermont
Virginia
Wisconsin
Wyoming
Washington
In a d d i t i o n , a survey of Arizona professional regulatory agencies by the Office
a
of the Auditor General revealed t h a t 13 of the 19 agencies surveyed u t i l i z e
national or regional examinations. Table 6 displays the r e s u l t s of t h i s
survey.
TABLE 6
SUMMARY OF THE UTILIZATION OF NATIONAL
OR REGIONAL EXAMINATIONS BY
AGENCIES AS OF AUGUST 15, 1979
Professional* Regulatory Agency
BOARD OF OPTOMETRY
State Board of Accountancy
State Bar of Arizona**
State Board of Barber Examiners
State Board of Chiropractic Examiners**
State Board of Cosmetology
Board of Dental Examiners**
State Board of Education
State Board of Funeral Directors and Embalmers
Board of Medical Examiners
State Naturopathic Board of Examiners
State Board of Nursing
Arizona Board of Osteopathic Examiners in Medicine
and Surgery
Arizona State Board of Pharmacy
Board of Physical Therapy Examiners
State Board of Podiatry Examiners
State Board of Psychologist Examiners
State Board of Technical Registration*""
Arizona State Veterinary Medical Examiners Board
Total
Utilize National
or Regional
Examinations?
Yes N o
* Websterls Seventh New Collegiate Dictionary defines a profession as:
" A calling requiring specialized knowledge and often long and intensive
academic preparation." Accordingly, the professional regulatory agencies
were determined by a post- high school educational requirement to enter the
profession. ** Agency may require a state examination in addition or in lieu of national
or regional examination. *** The State Board of Technical Registration administers examinations for
six professions and utilizes five national and one state examination.
A s i l l u s t r a t e d i n Table 6, the majority of Arizona's p r o f e s s i o n a l r e g u l a t o r y
agencies u t i l i z e national or regional examinations.
According t o a v a i l a b l e records, the Board decided t o d i s c o n t i n u e a c c e p t i n g NBEO
scores i n 1976 because of 1) the infrequency of NBEO examinations, 2)
concerns regarding optometry school c u r r i c u l a , 3) inconsistency between NBEO
s u b j e c t matter and Arizona s t a t e law, and 4) the possible i l l e g a l i t y of using
NBEO scores f o r Arizona.
However, a review of the above reasons revealed t h a t 1) the Board administers
its examination no more frequently than does the NBEO, 2) recent l e g i s l a t i o n
rendered problems with optometry school c u r r i c u l a and i n c o n s i s t e n c i e s with
Arizona s t a t e l a w moot, and 3) the Board could have used its rule- making
a u t h o r i t y t o remedy any l e g a l problems a s s o c i a t e d w i t h using NBEO scores.
The Board made its decision t o d i s c o n t i n u e a c c e p t i n g the NBEO scores at its
October 18, 1976 meeting. The following a r e excerpts from the minutes of t h a t
meeting which document the Board's reasoning.
Frequency o f t h e NBEO
Examination
Excerpt From October 18, 1976 Meeting
" The Board is required by law t o give q u a l i f y i n g w r i t t e n
examinations t o candidates at l e a s t once a year. It is no
more d i f f i c u l t t o give w r i t t e n examination t o f i v e or
f i f t y candidates."
One reason purported by the Board f o r discontinuing the p r a c t i c e o f accepting
NBEO scores was t h a t the NBEO examination is given only once a year. However,
it should be noted t h a t since 1976, t h e Board has administered its examination
only once a year -- a frequency t h a t is l e s s than t h a t of any other professional
regulatory body i n Arizona as shown i n Table 7.
TABLE 7
COMPARISON OF EXAMINATION FREQUENCY FOR ENTRANCE
INTO THE PROFESSION BETWEEN THE BOARD OF OPTOMETRY
AND OTHER ARIZONA PROFESSIONAL REGULATORY BODIES
AS OF AUGUST 15, 1979
Professional Regulatory Body
BOARD OF OPTOMETRY
S t a t e Board of Accountancy
S t a t e Bar of Arizona
S t a t e Board of Barber Examiners
S t a t e Board of Chiropractic Examiners
S t a t e Board of Cosmetology
S t a t e Dental Board*
S t a t e Board of Education
S t a t e Board of Funeral Directors and Embalmers
Board of Medical Examiners
S t a t e Naturopathic Board of Examiners
S t a t e Board of Nursing
Arizona Board of Osteopathic Examiners i n
Medicine and Surgery
Arizona S t a t e Board of Pharmacy
Board o f Physical Therapy Examiners
S t a t e Board of Podiatry Examiners
S t a t e Board of Psychologist Examiners
S t a t e Board of Technical Registrations*
Arizona S t a t e Veterinary Medical Examiners Board
Number of Examinations
Offered Per Year
one
two
two
four
two
eleven
four
twelve
two
two
two
two
two
two
two
two
two
two
two
* Three regional examinations and one s t a t e examination. ** Five of the examinations administered by the S t a t e Board of Technical
Registration are offered twice a year, one is offered only once a year.
Optometry School Curricula And
Inconsistencies Between NBEO
Subject Matter And Arizona
S t a t e Law
Excerpt from the October 18, 1976 meeting
" The Board f e e l s some schools are educating the student t o
pass the N. B. E. O. exams. This could hurt the future
development of optometry.
Also there is the inconsistency o f subject matter between
the N. B. E. O. exams and t o ones t o be given by the s t a t e
through its optometric licensing agency." ( Emphasis
added)
The Board was concerned t h a t schools of optometry were teaching students to
pass the NBEO examination t o the detriment of optometry. The Board was also
concerned t h a t the NBEO examination did not t e s t applicants on the 11 subjects
specified i n ARS 32- 1724 which were: geometric o p t i c s , ocular anatomy, ocular
pathology, t h e o r e t i c a l and p r a c t i c a l optics, t h e o r e t i c a l and p r a c t i c a l
optometry, hygiene, psychology, o p t i c a l laboratory and c l i n i c a l work, visual
t r a i n i n g or o r t h o p t i c s , contact lenses and general anatomy, physiology,
mathematics as related t o optometry physics and optics.
However, i n 1979 the Legislature amended ARS 32- 1724 regarding t e s t content to
d e l e t e t h e 11 s p e c i f i c t e s t subjects t o read as follows:
"... subject matter currently being taught i n the
accredited u n i v e r s i t i e s or schools of optometry."
A s a r e s u l t of the 1979 amendment t o ARS 32- 1724, which was supported by the
Board, the Board's enumerated concerns regarding optometry school curricula
and inconsistencies with Arizona s t a t e law have been eliminated.
P o s s i b l e I l l e a a l i t v Of Usinn
NBEO Scores For Arizona
Excerpt from the October 18, 1976 meeting
"( The A s s i s t a n t Attorney General) was brought up t o d a t e
on the Board's policy on acceptance of N. B. E. O. grades.
( The A s s i s t a n t Attorney G e n e r a l ' s ) opinion was t h a t the
previous Board erred i n accepting the grades o f t h e
N. B. E. O. They should have e i t h e r changed t h e law or
followed through on t h e i r r u l e making procedure before
acceptance would be l e g a l . ( The A s s i s t a n t Attorney
General) was t o l d t h a t t h i s Board was changing t h a t
' p o l i c y 1 and it was not going t o accept the N. B. E. O.
examination grades a t least u n t i l we a r e delegated t o do
so by t h e Legislature." ( Emphasis added)
On November 16, 1976, t h e Board s e n t t h e following l e t t e r t o t h e NBEO.
" This Board has reviewed its p a s t policy regarding
acceptance of N. B. E. O. grades and upon conferring with the
Attorney General f i n d t h i s policy was not i n conformance
with t h e s t a t e optometry law.
Consequently, u n t i l t h e L e g i s l a t u r e makes such changes,
the Arizona S t a t e Board of Examiners i n Optometry cannot
accept the grades of the N. B. O. examinationsin l i e u of our
w r i t t e n examination." ( Emphasis added)
It should be noted t h a t the Board's A s s i s t a n t Attorney General advised them
t h a t they could e i t h e r 1) propose l e g i s l a t i o n t o eliminate any s t a t u t o r y
problems with using NBEO s c o r e s , or 2) use t h e i r rule- making a u t h o r i t y t o
a d m i n i s t r a t i v e l y remedy those problems. The Board chose n e i t h e r option and
i n s t e a d e l e c t e d t o discontinue accepting NBEO s c o r e s .
CONCLUSION
The Arizona S t a t e Board of Optometry has f a i l e d t o maintain s u f f i c i e n t records
t o adequately document the preparation, administration and grading of its 0
examinations. This lack of documentation precludes a thorough, independent,
and q u a l i t a t i v e evaluation of the Board's examination process. However, a
review of the limited documentation t h a t is available 1) indicates t h a t the
Board is not i n compliance with s t a t e law, and 2) r a i s e s serious questions
regarding t h e v a l i d i t y of the Board's e n t i r e examination process.
RECOMMENDATION
It is recommended t h a t consideration be given t o the following options:
1. ARS 32- 1724 be amended t o allow acceptance of the NBEO scores i n
Arizona.
2. The Board of Optometry adopt r u l e s allowing the acceptance of
N. B. E. O. scores i n l i e u of the w r i t t e n portion of the Arizona a
examination.
FINDING I11
THE ARIZONA BOARD OF OPTOMETRY HAS NOT REVISED PROMULGATED RULES WHICH ARE
INCONSISTENT WITH FEDERAL REGULATIONS AND ARIZONA STATUTES.
The Board of Optometry has the authority to promulgate, and amend when
appropriate, rules and regulations governing t h e p r a c t i c e of optometry which
are consistent with f e d e r a l regulations and Arizona law. Three r u l e s ,
promulgated by the Board, regarding advertising by an optometrist and defining
a minimum eye examination are not in agreement with Federal Trade Commission
( FTC) regulations and federal and s t a t e a n t i t r u s t laws. In June 1978, Board
members received a copy and explanation of FTC regulations which supercede any
s t a t e r e s t r i c t i o n s , including r u l e s enacted by the Board of Optometry, on the
advertisement of ophthalmic goods and services. The Board was a l s o n o t i f i e d of
an inconsistency between a Board rule and federal and s t a t e a n t i t r u s t laws by
the Arizona Attorney General i n a l e t t e r dated April 16, 1979. Although
informed of these inconsistencies, the Board of Optometry has not, a s of June
30, 1979, amended the Board r u l e s to be consistent with l e g i s l a t i v e mandate.
Responsibility O f The Board To
Enact And Revise Rules Which Are
Consistent With Legislative Mandate
The Board of Optometry has been granted t h e a u t h o r i t y and r e s p o n s i b i l i t y to
adopt and revise r u l e s and regulations t h a t a r e consistent with Arizona Revised
S t a t u t e s . By authority of ARS 32- 1705. A:
" The board s h a l l make, and may from time to time amend,
such r u l e s and regulations not inconsistent with the
provisions of t h i s chapter, governing t h e p r a c t i c e of
optometry, for the performance of its d u t i e s under t h i s
chapter and f o r t h e examination o f a p p l i c a n t s for
c e r t i f i c a t e s or licenses...." ( Emphasis added)
When enacting and amending r u l e s , t h e Board is responsible for assuring t h a t
the r u l e s a r e consistent with a l l Arizona S t a t u t e s and appropriate federal
regulations. Arizona Revised S t a t u t e s 32- 1705 subsection A prohibits adoption
of any rule:
' I . . . t h a t w i l l regulate fees or charges of a registered optometrist to
the patient or w i l l r e g u l a t e t h e place i n which a registered
optometrist s h a l l p r a c t i c e , o r t h e manner or method of h i s
accounting, b i l l i n g or collection of f e e s , and t h a t no r u l e s h a l l be
promulgated by the board which s h a l l p r o h i b i t a d v e r t i s i n g by a
registered o p t o m e t r i s t , u n l e s s such advertising is inconsistent with
section 44- 1481." ( Emphasis added)
In a related opinion, the Attorney General of Arizona has ruled:
" No s t a t e or p o l i t i c a l subdivision, board, or commission may enact
r u l e s , regulations o r p o l i c i e s which are i n c o n f l i c t with any section
of the Arizona Revised Statutes." ( OP. Atty. Gen. No. 57- 121.)
Thus, the Board cannot enact and enforce rules regulating p r i c e s , l o c a t i o n ,
b i l l i n g o r c e r t a i n advertising by an optometrist or any r u l e which c ~ n ~ f c t s
with s t a t e law. Further, t o be enforceable a l l Board adopted rules must be
consistent with a l l applicable federal s t a t u t e s or regulations.
Since March 1972, each proposed r u l e of the Board of Optometry, a s with every
s t a t e agency, must be c e r t i f i e d as approved by the Attorney General. Under
Administrative Procedures Law the Attorney General reviews each proposal to
determine: 1) t h a t the r u l e is i n proper form, 2) t h a t adoption of the r u l e is
within the power o f t h e agency, and 3) t h a t the r u l e is within enacted
l e g i s l a t i v e standards. This process assures t h a t a l l newly promulgated r u l e s
are reviewed and approved by the Attorney General for consistency with
l e g i s l a t i v e mandate before the r u l e s become e f f e c t i v e . However, the Board of
Optometry has the sole r e s p o n s i b i l i t y for revising r u l e s t h a t c o n f l i c t with
l e g i s l a t i v e mandate because of l e g i s l a t i v e amendments.
Rule R4- 21- 04 Promulgated By The
Board Of Optometry Has Not Been
Revised To Remain Consistent With
Federal And S t a t e Antitrust Laws
Rule R4- 21- O4. B, promulgated on September 13, 1961, requires an optometrist i n
Arizona to " make a complete minimum examinationn and " keep a recordtt of f i f t e e n
conditions of every p- atient examined. Based upon an advisory opinion o f t h e
Arizona Attorney General, the r u l e may be invalid and an unreasonable r e s t r a i n t
of trade. In January 1979, the Board proposed an amendment to R4- 21- 04. B which
would have changed the f i f t e e n requirements of a minimum eye examination to
t h i r t e e n requirements.
The existing and proposed rules are contrasted below.
R4- 21- 04. B Any optometrist i n the S t a t e of Arizona s h a l l
make a complete minimum examination and s h a l l
keep a record of the following conditions of
every p a t i e n t examined:
Existing Requirements Proposed Requirements
Complete case h i s t o r y
Naked v i s u a l a c u i t y
Detailed report of e x t e r n a l f i n d i n g s
Ophthalmoscopic examination
( Media, Fundus, Bloodvessels, Disc)
Corneal curvature measurements
( diop t r a l )
S t a t i c retinoscopy
Amplitude of convergence and
accommodation
Phoria and duction findings; Hori-zontal
and v e r t i c a l , distance & near
Subjective findings
Fusion
Stereopsis
Color vision
Visual f i e l d s ( confrontation)
Visual f i e l d s , c e n t r a l ( a f t e r age 40)
Prescription given and v i s u a l a c u i t y
attained
Case history
Aided and unaided v i s u a l acuity
External examination
Ophthalmoscopic examination
Corneal curvature measurements
Retinoscopy
( Unchanged)
Phoria and duction findings
( Unchanged)
( Unchanged)
Color vision ( i n i t i a l examination)
Visual f i e l d s
Prescription given and v i s u a l acuity
a t t a i n e d r "
In an April 16, 1979, l e t t e r formally r e j e c t i n g the c e r t i f i c a t i o n o f several
-
January 1979 amendments including the proposed r u l e on eye examinations, the
Attorney General explained t h a t the r u l e appeared to r e q u i r e t h e p u b l i c to pay
for unnecessary services:
' I . . . i n order to obtain any optometric service from a
licensed optometrist i n the S t a t e of Arizona, a p a t i e n t
must undergo and pay f o r the complete minimum examination
required under Rule R4- 21- 04. B. On its face, the Rule
therefore appears to i n t e r f e r e with the p a t i e n t ' s a b i l i t y
to purchase. needed services a t the lowest possible price,
and t o f u r t h e r i n f l a t e the s p i r a l i n g cost of health care by
r e q u i r i n g t h e public to pay for optometric services t h a t
may be unnecessary. For example, a patient who wants only
a p r e s c r i p t i o n for eye g l a s s e s c o n s i s t i n g of t h e f o u r
findings detailed i n Rule R4- 21- O4. C" is required under
subsection B to pay for additional findings regarding
ophthalmoscopic f a c t o r s , c o l o r v i s i o n and numerous other
procedures. In addition, the Rule appears to present an
unnecessary cost b a r r i e r to a p a t i e n t who wishes to change
optometrists or to purchase selected services from an
ophthalmologist, since it requires the patient to pay the
optometrist for a ' complete minimum examination' even if
the required findings have recently been made by another
f u l l y qualified eye care provider." ( Emphasis added)
The Attorney General also enumerated the anticompetitive e f f e c t of R4- 21- 04. B
by explaining :
" Because the ' complete minimum examination' bundles
together a number of procedures which might otherwise be
purchased separately, the Rule requiring t h e i r purchase on
the p a t i e n t ' s i n i t i a l v i s i t t o an optometrist may
c o n s t i t u t e a ' tying arrangement.' The courts have long
held that it is unlawful for a seller of goods or services
to condition the s a l e of one product or service ( t h e
' tying1 product or service on the s a l e of another product
or s e r v i c e t h e ' t i e d ' product or s e r v i c e ) . . . I n t h i s case,
Rule R4- 21- 04. B controls a l l optometrists in the S t a t e of
Arizona and, by forcing consumers to purchase a ' complete
minimum examination' i n order to obtain any optometric
service, it has a s u b s t a n t i a l anticompetitive
e f f e c t . . . .
... because it forces t h e p a t i e n t to purchase the t h i r t e e n
required findings from the optometrist." ( Emphasis added)
* R4- 21- 04. C - Any spectacle p r e s c r i p t i o n by any optometrist i n
t h e S t a t e of Arizona s h a l l contain these minimum findings:
1. Refractive power of lenses desired.
2. Reading addition and type of bifocal prescribed.
3. Inner- pupilary distance ( f a r and near).
4. Signature of r e f r a c t i o n i s t and d a t e o f r e f r a c t i o n .
In explaining to the Board t h a t federal and s t a t e a n t i t r u s t laws take
precedence over the Board promulgated Rules the Attorney General s t a t e d :
" To f a l l within the ' s t a t e a c t i o n ' exemption from the
federal a n t i t r u s t laws, Rule R4- 21- 04. B would have to
mandated by the Cegislatuse... and the s t a t u t e which grants
rule- making authority t o the Board gives no indication
t h a t the Legislature expected the Board to require every
optometrist to perform a complete minimum examination' on
every patient.
Moreover, Arizona's Uniform S t a t e Antitrust Act was
enacted i n 1974 without any exception f o r Rule R4- 21- 04. B
or any other regulation of the S t a t e Board of Optometry.
Ariz. Rev. S t a t . Ann. sections 41- 1401 et seq.
Consequently, the Rule is subject t o both federal and
s t a t e a n t i t r u s t laws." ( Emphasis added)
In the advisory opinion, the Attorney General a l s o s t a t e d the a c t i o n s t h e Board
needed to undertake before obtaining c e r t i f i c a t i o n of the proposed rule:
" In order for t h i s o f f i c e t o c e r t i f y Rule R4- 21- 04, we
would request t h a t the Board provide us with information
s u b s t a n t i a t i n g the need for a l l 13 findings contained i n
the Rule and an explanation of why an optometrist cannot
r e l y on part or a l l of such findings made recently by
another individual qualified t o make such ." ( Emphasis
added)
Members of the Board have discussed the proposed and existing r u l e on minimal
eye examination on several occasions. In a June 7, 1979 discussion, Dr.
Martin Laderman, president o f the Board, explained:
" Records of those 13 conditions l i s t e d i n the proposed
Rule are necessary f o r an optometrist to make accurate
conclusions on a p a t i e n t ' s v i s i o n s t a t u s . "
I n t h e i r May 21, 1979 meeting, the Board of Optometry decided to r e t a i n the
e x i s t i n g r u l e ( R4- 21- 04) which requires 15 conditions r a t h e r than continuing t o
t r y to obtain c e r t i f i c a t i o n of the proposed r u l e requiring 13 conditions.
It should be noted that according to Legislative Council, in a memorandum dated
May 21, 1979, the i n t e n t of both the existing and proposed amendment to the
rule requiring a minimum number of elements for an eye examination are similar
and t h a t both would represent a c o n f l i c t with a n t i t r u s t laws. The Legislative
Council s t a t e d i n part:
" We concur in the reasoning of the Attorney General...
For the reasons discussed i n t h a t ... opinion ... we
believe t h a t the Board Rule ( R4- 21- O4. B) c o n f l i c t s
with a n t i t r u s t law."*
Therefore, the Board of Optometry has knowingly retained a r u l e t h a t appears to
contain anticompetitive r e s t r i c t i o n s t h a t are i n c o n f l i c t with s t a t e and
federal a n t i t r u s t laws.
Two Board Rules Are Not Consistent
With Federal Trade Commission Regula-tion
of Advertisement of Ophthalmic
Goods and Services
The Federal Trade Commission has recently adopted r e g u l a t i o n s p r o h i b i t i n g the
enforcement of s t a t e laws o r r e g u l a t i o n s governing advertisement of ophthalmic
goods and services. The Board of Optometry promulgated, on September 13, 1961,
Rule R4- 21- 03, p a r t s of which contain such prohibitions regarding advertising, a
and has not revised the rule to be consistent with federal regulation.
Federal Trade Commission Regulation
O f Advertising O f Ophthalmic Goods
And Services
A s o f July 13, 1978, s t a t e regulation of advertisement of ophthalmic goods and
services has been preempted by Federal Trade Commission Regulations. Federal
regulation CFR Part 456.3 reads:
* Appendices X I and X I 1 contain a complete t e s t of . the Attorney General's
l e t t e r and the Legislative Council memorandum.
" It is an unfair a c t or practice. .. for any s t a t e o r l o c a l
government e n t i t y o r any subdivision thereof, s t a t e
i n s t r u m e ~ t a l i t y , or s t a t e or l o c a l governmental o f f i c i a l
to enforce any:
( a ) p r o h i b i t i o n , l i m i t a t i o n or burden on the
dissemination of information concernin&
ophthalmic goods and services by any s e l l e r or
group of s e l l e r s , o r
( b) p r o h i b i t i o n , l i m i t a t i o n or burden on the
dissemination of information concerning eye
examinations by any r e f r a c t i o n i s t . PROVIDED:
Nothing in subpart ( b) s h a l l be construed to
prohibit the enforcement of a s t a t e or l o c a l law
which permits the dissemination of information
concerning eye examinations, including
information on the cost and a v a i l a b i l i t y of
those examinations, but requires t h a t specified
a f f i r m a t i v e d i s c l o s u r e a l s o be included."
( Emphasis added)
This federal regulation allows s t a t e law or regulation to require " specific
a f f i r m a t i v e disclosuresn* o r f a c t u a l statements disclosing information
important to the consumer, but does not allow any other form o f l i m i t a t i o n on
information about ophthalmic goods and services.
* The FTC regulations a l s o contain d e f i n i t i o n s of the type of s t a t e
t'specific affirmative disclosure^^^ t h a t can be required f o r ophthalmic
goods. These are limited to:
1 Whether an advertised price includes s i n g l e vision and/ or
m u l t i f o c a l l e n s e s ;
2) Whether an advertised price for c o n t a c t l e n s e s r e f e r s t o s o f t
and/ or hard c o n t a c t l e n s e s ;
3) Whether an advertised price for eyeglasses or contact lenses
includes an examination;
4 Whether an advertised p r i c e f o r eyeglasses or contact lenses
includes all dispensing fees; and
5) % bether an advertised price for eyeglasses includes both frame
an~ d 1 e n ~ e . s . ~
However, the FTC has not promulgated any regulations defining the type of
" Specific affirmative disclosures4' a state can require for ophthalmic
services.
If a state reasonably regulates - all retail advertising through state law, rule
or regulation, the FTC regulations permit similar regulation of ophthalmic
goods and services. FTC regulation CRF Part 456. B states:
"( b) Where a state or local law, rule or regulation
applies to all retail advertisements of consumer
goods and services ( including a law, rule, or
regulation which requires the affirmative
disclosure of information or imposes reasonable
time, place and manner restrictions), such a
law, rule, or regulation shall not be considered
to prohibit, limit, or burden the dissemi-nation
of information."
Also, upon application by a state agency, the FTC will review any state
requirement that the agency has deemed to be necessary in preventing deception
or unfairness. If the state requirement is reasonable and does not unduly
restrict advertising, then that requirement will be permissible to the extent
specified by the FTC.
Therefore, the state can regulate advertisement of ophthalmic goods and
services upon receiving permission from the FTC or through a state law that
applies to all retail advertising.
Board Enacted Rule May
Conflict With the FTC
Regulations
Board of Optometry rule ACRR R4- 21- 03. A prohibiting certain advertising
practices by an optometrist or concerning ophthalmic materials is similar to a
state law regarding false or misleading advertisement but may not be
enforceable due to differences in language and terms used in the rule.
The Board promulgated Rule R4- 21- 03. A s t a t e s :
* A. No optornetrisk i n the S t a t e of Arizona s h a l l use
advertising of any kind or nature which is
misleading, f a l s e , deceptive or inaccurate i n any
material p a r t i c u l a r , nor s h a l l an optometrist
misrepresent any ophthalmic material, optometric
services, c r e d i t terms, or values or t h e n a t u r e or
form of the p r a c t i c e conducted by t h a t optometrist or
group of optometrists. No ophthalmic material s h a l l
be a d v e r t i s e d u n l e s s it is described f u l l y and
t r u t h f u l l y i n a l l of its component parts."
While the s t a t e law ARS 44- 1481 regarding f a l s e o r misleading advertising
s t a t e s :
" A. A person is g u i l t y of a c l a s s 3 misdemeanor who:
1. Knowingly and with the i n t e n t t o sell to the
public r e a l or personal property or s e r v i c e s , or
to induce the public to acquire an i n t e r e s t
t h e r e i n , makes and publishes an advertisement,
e i t h e r printed or by public outcry or
proclamation, or otherwise, containing any
f a l s e , fraudulent, deceptive or misleading
representations i n respect to such property or
s e r v i c e s , or the manner of its s a l e or
d i s t r i b u t i o n . l l ( Emphasis added)
The s t a t e law is an acceptable method of s t a t e regulation of a l l r e t a i l
advertising; however, according t o Legislative Council, it could be argued t h a t
the Board of Optometry r u l e is not enforceable.
In a memorandum dated May 21, 1979, the Legislative Council noted t h a t the
Board of Optometry needs to r e v i s e Rule R4- 21- 03. A to bring it i n t o consonance
with ARS 44- 1481. The Legislative Council s t a t e d , in part:
" S t r i c t l y construing the language of the trade regulation
r u l e , it is arguable t h a t the Board of Optometry may
not promulgate and enforce its own r u l e prohibiting
fraudulent advertising of ophthalmic materials and
optornetric, services. However, t h i s seems unduly
r e s t r i c t i v e .
" It is more appropriate t h a t the Board of Optometry should
r e v i s e its current r u l e t o follow the language of Arizona
Revised S t a t u t e s section 44- 1481 a s it r e l a t e s to the
advertising of ophthalmic goods and services and should
use the d e f i n i t i o n s of the l a t t e r terms prescribed in the,
trade regulation rule. This r e s u l t would eliminate any
question t h a t the Board was attempting t o be generally
more r e s t r i c t i v e i n permitting advertising than the
state."' ( Emphasis added)
A s indicated in the Legislative Council memorandum, i f the language of t h e r u l e
followed s t a t e law, the Board would not be placing any more r e s t r i c t i o n s on
ophthalmic goods and s e r v i c e s a d v e r t i s i n g than now applies t o a l l r e t a i l
advertising.
Another Board Enacted Rule
Conflicts With The FTC Regulations
Another Board adopted r u l e regulating advertising by an optometrist c o n f l i c t s ( I
with t h e r e c e n t l y enacted Federal Trade Commission regulations. ACRR R4- 21-
03. B provides:
" B. No optometrist s h a l l i n any manner advertise or hold
out t o the public t h a t h i s services or a b i l i t i e s a r e
superior to those of any o t h e r l i c e n s e d optometrist."
This r u l e d i r e c t l y c o n f l i c t s with the FTC regulation prohibiting any
r e s t r i c t i o n on the dissemination of information in t h a t it does not permit an
optometrist to hold himself out t o the public in advertised messages as a
s p e c i a l i s t , even if i n f a c t one is a s p e c i a l i s t . I n t h e May 21, 1979 opinion,
Legislative Council wrote:
" A. C. R. R. R4- 21- 03, subsection B prohibits an optometrist
from advertising t h a t he is a s p e c i a l i s t . The ~ o i r d ' sr u l e
does l i m i t the dissemination of information concerning an
optometrist's service i n such a manner t h a t it would
c o n f l i c t with the previously c i t e d trade regulation rule."
( Emphasis added)
The Board of Optometry could be fined up to $ 10,000 by federal a u t h o r i t i e s f o r
enforcement of a r u l e t h a t conflicts with federal regulation. However, the
Board can e l i m i n a t e t h e c o n f l i c t with f e d e r a l regulations by revising Rule R4-
21- 03 to require that a " s p e c i f i c a f f i r m a t i v e disclosuren be included i n any
advertisement t h a t i d e n t i f i e s the optometrist a s a s p e c i a l i s t . According to
Legislative Council :
" The Board is not precluded from promulgating a r u l e which
requires t h a t ' specified affirmative disclosure1 a l s o be
included i n advertising. The Board of Optometry could
revise its r u l e to require c e r t a i n additional information
if an optometrist chooses t o advertise t h a t he is a
s p e c i a l i s t ... . Revising the r u l e would promote increased
consumer information, would help prevent possible
deception i n advertising and would seem to implement the
purposes o f t h i s s t a t e i n regulating
the optometry profession, as well as public advertising,
t o benefit the public and the purposes of the FTC t o
promote consumer information and prevent anticompetitive
practices." ( Emphasis added)
The Board Is Aware Of The FTC
Regulations And Has Taken Limited
Action
Individual Board members received a copy of the applicable FTC regulations i n
June 1978; and were, therefore, n o t i f i e d t h a t t h e f e d e r a l regulations regarding
advertising preempted Board promulgated rules. In response to the new FTC
regulations, the Board proposed an amendment t o Rule R4- 21- 03. B regarding
l i m i t a t i o n of advertisement as an optometric s p e c i a l i s t . This amendment has
not yet been c e r t i f i e d by the Attorney General. However, the Board has not
taken action to have Rule R4- 21- 03. A amended to be consistent with s t a t e law
and approved by the FTC.
An i n i t i a l amendment of R4- 21- 03. B, concerning advertisement as a s p e c i a l i s t ,
was adopted by the Board and sent to the Attorney General f o r c e r t i f i c a t i o n on
February 2, 1979. In an April 16, 1979 letter to the Board, the Attorney
General rejected c e r t i f i c a t i o n because the amendment was not clear. Using the
Attorney General's suggestions the Board adopted, on May 21, 1979, the
following revised version o f t h e r u l e :
" No optometrist s h a l l i n any manner advertise or hold out
to the public t h a t h i s services or a b i l i t i e s are superior
to those of any o t h e r l i c e n s e d optometrist except that an
optometrist may advertise a s a s p e c i a l i s t if he has been
c e r t i f i e d by the American Academy of Optometry a s a
diplomat in t h a t specialty or as a fellow in the College of
Optometrists i n Vision Development."
The Attorney General had not, a s of July 1, 1979, c e r t i f i e d the amended rule.
Since t h e r e v i s i o n would allow an optometrist t o advertise as a s p e c i a l i s t ,
provided the optometrist was c e r t i f i e d by an appropriate organization, t h e r u l e
appears to be enforceable under the FTC regulations.
CONCLUSION
Board of Optometry enacted three r u l e s t h a t need to be revised i n order t o
avoid c o n f l i c t with federal and s t a t e laws and regulations serving to prohibit
anticompetitive practices. The Board of Optometry has taken action to revise
one of t h e t h r e e rules to allow optometrists t o advertise as s p e c i a l i s t s , but
has not taken appropriate action to r e v i s e the others.
RECOMMENDATION
It is recommended t h a t consideration be given to the following:
- The Board of ~ ~ t o - & erterv~ i s e Rule R4- 21- 04. B, regarding the
recording of 15 conditions o f a p a t i e n t t o become consistent with
federal and s t a t e a n t i t r u s t laws.
- The Board of Optometry r e v i s e Rule R4- 21- 03. A regarding misleading
advertising to become consistent with s t a t e law.
- The Board of Optometry continue t h e i r e f