A performance audit of the Board of Dispensing Opticians

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
OF Ti4 E
BOARD OF DISPENSING OPTICIANS
SEPTEMBER 1981
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81 - 7
STATE OF ARIZONA
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
OFFICE OF THE
AUDITOR GENERAL
September 24, 1981
Members of the Arizona Legislature
The Honorable Bruce Babbitt, Governor
M r . Robert H i l l , Chairman
Board of Dispensing Opticians
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Board of Dispensing Opticians. This report is i n response t o
a January 30, 1980, resolution of the Joint Legislative Oversight
Committee. This performance audit was conducted as a p a r t of the Sunset
review s e t f o r t h i n A. R. S. $$ 41- 2351 through 41- 2379.
The blue pages present a summary of the report; a response from the Board
of Dispensing Opticians is found on the yellow pages preceding the
appendices.
My s t a f f and I w i l l be pleased to discuss or c l a r i f y items i n t h e r e p o r t .
Respectfully submitted,
~ o u ~ P / Ra. s Norton
Auditor General
Staff: Gerald A. Silva
Coni Rae Good
Martha Bradley- Rawls
Richard Booth
Enclosure
LEGISLATIVE SERVICES WING SUITE 200 STATE CAPITOL PHOENIX. ARIZONA 85007 255- 4385
OFFICE OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF THE
BOARD OF DISPENSING OPTICIANS
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81- 7
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
SUNSET FACTORS
Page
i
FINDINGS
FINDING I
The regulation of dispensing opticians and related
occupations should be revised and s u b s t a n t i a l l y reduced.
CONCLUSION 2 2
RECOMMENDATION
FINDING 11
The examination process of the Board of Dispensing
Opticians is a r b i t r a r y and of questionable i n t e g r i t y .
CONCLUSION
REC OMENDATI ON
FINDING I11
Improvements are needed i n the Board of Dispensing
Opticians' complaint review process.
CONCLUSION
RECOMMENDATION
FINDING I V
Statutory changes are needed i f the Board of Dispensing
Opticians is to be continued.
C ONC LUSI ON
RECOMMENDATION
FINDING V
Questionable procedures are used to license dispensing
opticians by credentials.
CONCLUSION
RECOMMENDATION
FINDING V I
Improvements are needed i n the Board of Dispensing
Opticians' record- keeping procedures.
C ONC LU SI ON
RECOMMENDATION
FINDING V I I
Although the Board of Dispensing Opticians is i n
compliance with S t a t e law regarding public notice, some
improvements can be made.
CONCLUSION
RECOMMENDATIONS
WRITTEN RESPONSE TO THE AUDITOR GENERAL ' S REPORT
APPENDICES
APPENDIX I Memorandum from the Arizona Legislative Council
regarding c o u r t c a s e s r e l a t e d to harm caused by
dispensing opticians - November 21, 1980
APPENDIX I1 Arizona s t a t u t e s regarding dispensing opticianry
APPENDIX I11 Board of Dispensing Opticians rules and regulations
APPENDIX I V Memorandum from the Arizona Legislative Council
regarding examination practices - May 20, 1981
APPENDIX V Memorandum from the Arizona Legislative Council
regarding acceptance of national examinations -
November 21, 1980
APPENDIX V I Memorandum from the Arizona Legislative Council
regarding the scope of the Board's authority -
November 24, 1980
APPENDIX V I I Memorandum from the Arizona Legislative Council
regarding penalties for occupational regulation -
May 21, 1981
APPENDIX V I I I Memorandum from the Arizona Legislative Council
regarding Arizona occupational regulation - August 10,
1981
APPENDIX I X Memorandum from the Arizona Legislative Council
regarding comity with other s t a t e s - June 15, 1981
APPENDIX X Memorandum from the Arizona Legislative Council
regarding comity with Alaska - June 15, 1981
APPENDIX X I Memorandum from the Arizona Legislative Council
regarding adequate documentation of legal actions taken
by the Board of Optometry - June 18, 1979
APPENDIX X I 1 Memorandum from the Arizona Attorney General to a l l
State agencies regarding public notice requirements -
August 19, 1975
APPENDIX X I 1 1 Surveys of: 1) licensed dispensing opticians,
2 ) r e g i s t e r e d apprentice dispensing opticians i n
Arizona and 3) State regulatory agencies
LIST OF TABLES
Page
TABLE 1
TABLE 2
TABLE 3
TABLE 4
TABLE 5
TABLE 6
TABLE 7
TABLE 8
TABLE 9
TABLE 10
TABLE 11
Actual workload measures f o r the a c t i v i t i e s
of the Board of Dispensing Opticians from
f i s c a l years 1976- 77 through 1979- 80 and
estimated measures for f i s c a l years 1980- 81
and 1981- 82
Actual full- time equivalent employees,
receipts and expenditures f o r f i s c a l years
1976- 77 through 1979- 80 and estimates
for f i s c a l yers 1980- 81 and 1981- 82
Professional and occupational regulation
i n Arizona
Summary of dispositions of consumer complaints
regarding optical dispensing by the BBB during
1978- 1980 and by the Board during 1976- 1980
Review summary of selected examination questions
used by the Board of Dispensing Opticians during
1979 and 1980
Summary of the impact of the Board's practice
of regrading examinations during 1979 and 1980
Summary of the impact of the Board's inconsistent
regrading during 1979 and 1980
Usage of OAA examinations by s t a t e s which license
dispensing opticians as of March 1, 1981
Summary of the number and bases of complaints
received by the Board of Dispensing Opticians
from January 1, 1976, through December 31, 1980
Summary of dispositions of consumer and Board-i
n i t i a t e d complaints received by the Board of
Dispensing Opticians during calendar years
1976 through 1980
Comparison of functions performed by surveyed
licensed dispensing opticians, apprentice
dispensing opticians and unlicensed dispensers
i n Arizona
TABLE 12 States which license dispensing opticians
and t h e i r licensure requirements compared
t o those of Arizona
TABLE 13 Methods used by Arizona regulatory agencies
to encourage public input and public
p a r t i c i p a t i o n i n a c t i v i t i e s concerning
regulatory duties
TABLE 14 Estimated costs f o r using three methods of
encouraging public p a r t i c i p a t i o n by the
Board of Dispensing Opticians
Page
76
SUMMARY
The Board of Dispensing Opticians has primary r e s p o n s i b i l i t y for
regulating the practice of o p t i c a l dispensing i n Arizona. The duties of
the Board include evaluating applications f o r examination and licensure,
administering examinations, issuing licenses and enacting rules and
regulations concerning licensed dispensing opticians and registered
apprentice dispensing opticians.
Prior t o 1979 l e g i s l a t i v e changes, the Board was comprised of f i v e
dispensing opticians appointed by the Governor to serve five- year terms.
Legislative changes expanded Board membership to seven individuals; five
dispensing opticians and two members representing the general public.
The Board and its a c t i v i t i e s are funded through fees charged f o r
examinations and licenses issued. Ten percent of the fees received is
deposited i n the State General Fund; the remaining 90 percent is used f o r
Board operations within the l i m i t s of an annual budget approved by the
Legislature.
Our review determined t h a t the regulation of o p t i c a l dispensing i n Arizona
should be revised and s u b s t a n t i a l l y reduced. ( page 9) In conjunction
with t h i s finding, our review revealed t h a t s t a t u t o r y changes are needed
i f the Board of Dispensing Opticians is t o be continued. ( page 55)
Our review also revealed t h a t the examination process of the Board is
a r b i t r a r y and of questionable i n t e g r i t y . ( page 23)
In addition, our review disclosed t h a t improvements are needed i n the
Board's complaint review process. ( page 37)
Our review also disclosed t h a t questionable procedures are used t o license
dispensing opticians by credentials. ( page 69)
Our review revealed that improvements are needed i n the Board's
record- keeping procedures. a age 77 )
Finally, our review revealed t h a t , although the Board of Dispensing
Opticians is i n compliance with State law regarding public notice, some
improvements can be made. ( page 85)
- It is recommended that consideration be given t o the following
a l t e r n a t i v e s :
1. Revise s t a t u t e s to r e q u i r e l i c e n s u r e of contact lens dispensers
only.
2. Eliminate regulation of dispensing opticians and the Board of
Dispensing Opticians.
If regulation is continued, it is recommended t h a t consideration be given
t o the following:
1. A. R. S. $ 32- 1682 be amended t o allow acceptance of Opticians
Association of America ( OAA) scores i n Arizona i n l i e u of a
locally prepared examination.
2. The Board slow the frequency with which examination questions
currently are repeated.
3. The Board consider contracting with examination experts t o a s s i s t
i n the preparation of examination questions.
4. The Board e s t a b l i s h and maintain b e t t e r q u a l i t y c o n t r o l of
examination questions and grading procedures.
5. Arizona Revised S t a t u t e s , T i t l e 32, chapter 15.1, be amended as
recommended on page 66.
6. The Board of Dispensing Opticians e s t a b l i s h s p e c i f i c procedures
for the i n v e s t i g a t i o n and resolution of complaints. These
procedures should meet the standards of a minimum i n v e s t i g a t i o n
cited by the Legislative Council.
7. Amend the s t a t u t e s r e l a t i n g t o unlicensed personnel to:
a ) require them to r e g i s t e r as apprentices, b) provide f o r
penalties i f they commit a c t s t h a t a r e unlawful for license
holders, and c ) define the duties of t h e i r supervisors, or
8. Abolish apprentice provisions and unlicensed exemptions.
9. Provide f o r t h e r e g u l a t i o n of o p t i c a l establishments.
10. Include penalties f o r s t a t u t o r y violations a t a level
commensurate with other regulatory agencies.
11. Specifically define those persons and e n t i t i e s subject to
regulation.
12. Provide the Board with the s p e c i f i c requirement t o investigate
every complaint.
13. Provide the Board with enforcement r e s p o n s i b i l i t i e s , including
the imposition of penalties a g a i n s t i n d i v i d u a l s found g u i l t y of
providing substandard care or performing inappropriate functions.
14. The Board periodically review other s t a t e s ' requirements t o keep
abreast of other s t a t e s ' s t a t u t e s .
15. A. R. S. $ 32- 1682, subsection D, be revised to allow OAA
examinations t o be used i n l i e u of the Board's l o c a l l y prepared
examinations to avoid a possible l e g a l problem regarding use of
OAA examinations by other s t a t e s .
iii
In addition, i f regulation is continued, it is recommended t h a t the Board:
1. Establish a records management program to help ensure t h a t its
records are adequate a s required by S t a t e law. To implement
t h i s , the Board should -
a. Request legal assistance i n establishing procedures t o
document legal actions i n Board minutes and to maintain
those records necessary to support Board proceedings.
b. Follow recommended guidelines f o r a records management
program proposed by the records management center.
c. Submit records retention and disposal schedules t o the
Director of Library, Archives and Public Records, along with
lists of e s s e n t i a l public records, as required by A. R. S.
$ 41- 1346
2. Consider adopting the methods used by other Arizona regulatory
bodies t o encourage public input and p a r t i c i p a t i o n i n the
promulgation of rules and regulations and development of
l e g i s l a t i v e proposals, and the recommendations presented by the
Attorney General and Ernest Gellhorn, former ASU College of Law
dean.
3. Send notices t o licensees and apprentices a t l e a s t annually to
notify them of the y e a r ' s scheduled meetings.
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit of the
Board of Dispensing Opticians, i n response to a January 30, 1980,
resolution of the J o i n t Legislative Oversight Committee. This performance
audit was conducted as part of the Sunset review s e t f o r t h i n Arizona
- Revised S t a t u t e s ( A. R. s.) $ 541- 2351 through 41- 2379.
Regulation of optical dispensing began i n Arizona i n 1956, with the
creation of the S t a t e ' s Board of Dispensing Opticians. A t the time of its
creation, the Board was given the authority to examine, license and
regulate dispensing opticians f o r the purposes of helping t o ensure the
competency of dispensing opticians and preventing conduct on t h e i r part
which would tend to harm the v i s u a l h e a l t h of the public.
Most of the o r i g i n a l s t a t u t e s pertaining t o the Board remained i n e f f e c t
without major change u n t i l 1979, when the following major changes
occurred: the authority ( b u t n o t the requirement) t o r e g i s t e r apprentice
dispensing o p t i c i a n s , t h e addition of two public members t o the Board and
the a b i l i t y to apply t o the court for injunctive r e l i e f i n instances of
violation of appropriate s t a t u t e s .
Currently the Board is charged with the following regulatory duties:
- Examination of prospective licensed dispensing opticians,
- Licensure by examination, apprenticeship and reciprocity of
qualified dispensing opticians,
- Registration of those individuals who wish t o become apprentice
dispensing opticians,
- Investigation and resolution of violations and complaints against
licensed dispensing opticians and suspected unlicensed a c t i v i t y ,
and
- Promulgation of rules and regulations and proposals f o r s t a t u t o r y
amendment t o p r o t e c t t h e public effectively.
The Board is comprised of seven members, of whom f i v e are licensed
dispensing opticians and two represent the consuming public. The
S t a t e Boards Administrative Office, Department of Administration,
provides c l e r i c a l assistance t o the Board.
The Board's budget remained s t a b l e from f i s c a l years 1976- 77 through
1978- 79, r e f l e c t i n g an unvarying level of Board a c t i v i t y . In f i s c a l
year 1979- 80 the numbers of licensed dispensing opticians,
complaints received and hearings increased.
Table 1 contains a summary of selected actual and estimated workload
measures f o r f i s c a l years 1976- 77 through 1981- 82. Table 2
summarizes the Board's receipts and expenditures f o r the same time
period.
TABLE 1
ACTUAL WORKLOAD MEASURES FOR THE ACTIVITIES OF
THE BOARD OF DISPENSING OPTICIANS FROM FISCAL
YEARS 1976- 77 THROUGH 1979- 80 AND ESTIMATED
MEASURES FOR FISCAL YEARS 1980- 81 AND 1981- 82
Actual Measures Estimated Measures
1976- 77 1977- 78 1978- 79" 1979- 80" 1980- 81" 1981- 82" a
Applicants for examination 62 5 5 6 6 62 6 5 70
Examinations administered 59 5 5 6 3 118** N/ A N/ A
New licenses issued 38 38 43 39"" 4 5 50
Licenses renewed 243 277 290 366 400 440
Complaints received 4 5 ' 3 12 20 2 8 a
Informal hearings held 1 2 3 12 18 22
Formal hearings held 4 1- 2 1- 2
* Source: Schedule 4 of the budget request from the Board for f i s c a l
years 1978- 79 through 1981- 82.
** Source: Interview with Board recording s e c r e t a r y , A p r i l 20, 1981.
TABLE 2
ACTUAL FULL- TIME EQUIVALENT EMPLOYEES, RECEIPTS AND
EXPEND1 TURES FOR FISCAL YEARS 1976- 77 THROUGH 1979- 80
AND ESTIMATES FOR FISCAL YEARS 1980- 81 AND 1981- 82"
Number of full- time
equivalent positions
Receipts:
Balance from previous
years
8
Appropriation ( 90
percent of t o t a l
current year r e c e i p t s )
Total
Expenditures
Employee s a l a r i e s
Professional and
outside services
Travel :
In- State
Out- of- State
Other operating
Equipment
Total
Surplus
Actual Amounts Estimated Amounts
1976- 77 1977- 78 1978- 79 1979- 80 1980 - 81 1981- 82
* Source: Schedule 4 of the budget request from the Board f o r f i s c a l
years 1978- 79 through 1981- 82.
** Not available
*** Source: S t a t e of Arizona Annual Budget: Legislative Staff Analysis
and Recommendations, 1979- 80 and 1981- 82.
I) **** Unreconcilable difference between beginning balance of 1978- 79 and
surplus of prior year.
The Auditor General expresses g r a t i t u d e to the members of the Board of
Dispensing Opticians and the employees of the S t a t e Boards Administrative
Office for t h e i r cooperation, assistan, ce and consideration during the
course of the audit.
SUNSET FACTORS
Nine f a c t o r s were reviewed t o aid i n the process of determining i f the
Board of Dispensing Opticians should be continued or terminated, i n
accordance with A. R. S. $ 41- 2354, subsection D.
SUNSET FACTOR: OBJECTIVE AND PURPOSE
I N ESTABLISHING THE BOARD
The i n t e n t of the Legislature i n e s t a b l i s h i n g t h e Board of Dispensing
Opticians is stated i n A. R. S. $ 32- 1673, which grants the Board power to
" prescribe and enforce r u l e s and regulations... which help t o assure the
competency of dispensing opticians and prevent conduct on t h e i r part which
would tend to do harm t o the visual health of the public."
In a d d i t i o n , t h e Board has s t a t e d its goal to be " insuring.. . [ t o t h e
public] the highest possible quality of optical dispensing services."
Further, the Board recently outlined the following objectives:
Licensure - "... to continually license qualified
dispensing opticians."
Continuing Education - "... to ensure t h a t licensees
continue to receive education d i r e c t l y related t o the
practice of o p t i c a l dispensing."
Consumer Complaints - "... to handle consumer complaints
within the l i m i t a t i o n s of our s t a t u t e s . "
Regulation - "... to oversee the actions of the
licensees as required by [ our s t a t u t e s ] . . ."
SUNSET FACTOR: THE DEGREE TO WHICH THE BOARD
HAS BEEN ABLE TO RESPOND TO THE NEEDS OF THE PUBLIC
AND THE EFFICIENCY WITH WHICH I T HAS OPERATED
The a b i l i t y of the Board to respond to the needs of the public has been
impaired by unclear statutory authority and inadequate investigation of
complaints. ( see pages 37 and 55 for reviews of these issues.)
The Board appears to be operating e f f i c i e n t l y i n that expenditures for
each licensee/ registrant has remained a t approximately $ 30.50 from f i s c a l
year 1977- 78 through 1980- 81. During t h i s time, the number of
licensees/ registrants increased from 315 to 392 ( an increase of 24
percent) .
SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD
HAS OPERATED WITHIN THE PUBLIC INTEREST
Regulation of dispensing opticians under current s t a t u t e s and practices
appears not to be within the public i n t e r e s t . Our review revealed that:
1) risk to the visual health of the public from the dispensing of
eyeglasses does not appear to warrant licensure, and 2) benefits of
regulating eyeglass dispensing do not outweigh potential adverse effects.
In addition, the manner i n which the Board prepares and administers
licensure examinations raises serious questions regarding the v a l i d i t y of
the e n t i r e process of regulating dispensing opticians. ( see pages 9
and 23 )
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS PROMULGATED BY THE BOARD
ARE CONSISTENT WITH THE LEGISLATIVE MANDATE
The rules and regulations of the Board appear to be consistent with
l e g i s l a t i v e mandate within the constraints of current, unclear statutory
authority. ( see page 55)
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
Our review revealed t h a t , although the Board complies with statutory
requirements regarding public notice concerning its regulatory a c t i v i t i e s ,
improvements can be made. A survey by the Auditor General of licensed
dispensing opticians demonstrated t h a t 55 percent of t h e l i c e n s e e s
surveyed were not informed regularly of proposed Board actions. ( see
page 87)
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS BEEN ABLE TO INVESTIGATE AND RESOLVE
COMPLAINTS THAT ARE WITHIN ITS JURISDICTION
Our review revealed that the lack of d i s c i p l i n a r y action imposed by the
Board with regard to consumer complaints and Board- initiated complaints
r a i s e s serious questions regarding the ~ o a r d ' s a b i l i t y t o regulate o p t i c a l
dispensing e f f e c t i v e l y . I n a d d i t i o n , t h e Board has not investigated
numerous complaints s u f f i c i e n t l y or imposed s u f f i c i e n t l y severe
p e n a l t i e s . ( s e e page 37)
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 LEGISLATI ON
The Board of Dispensing Opticians and the Attorney General are constrained
by unclear s t a t u t o r y authority i n t h e i r a b i l i t y t o e f f e c t i v e l y regulate
the o p t i c a l dispensing profession i n Arizona, i n t h a t inadequate penalty
provisions and the presence of many occupational categories impede
effective regulation, there is no statutory provision for t h e r e g u l a t i o n
of o p t i c a l establishments, and most complaints are submitted against
o p t i c a l dispensing personnel or organizations t h a t are not regulated.
( see page 55)
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
During the 1981 Legislative session, the Board proposed l e g i s l a t i o n to
amend its enabling s t a t u t e s t o allow, among other minor changes, licensure
examinations administered by the Opticians Association of America i n l i e u
of the State- administered examination. The proposed l e g i s l a t i o n was
defeated.
SUNSET FACTOR: THE FXTENT TO WHICH
CHANGES ARE NECESSARY I N THE LAWS OF THE BOARD
TO ADEQUATELY COMPLY WITH THE FACTORS
LISTED I N THIS SUBSECTION
Our review found t h a t numerous statutory changes are needed f o r the Board
t o comply more adequately with the factors l i s t e d i n t h i s subsection.
( see pages 9, 23, 37 and 55)
FINDING I
THE F3GULATION OF DISPENSING OPTICIANS AND WLATED OCCUPATIONS SHOULD BE
REVISED AND SUBSTANTIALLY REDUCED.
Under Arizona law those persons who are licensed by the Board of
Dispensing Opticians may: 1) dispense eyeglasses, contact lenses,
a r t i f i c i a l eyes and other o p t i c a l devices on written prescription from a
licensed physician or optometrist, and 2) reproduce existing eyeglasses
or contact lenses without prescription. I n addition, Arizona law allows
both apprentice dispensing opticians and unlicensed optical dispensers to
perform similar functions under the supervision of a licensed dispensing
optician, optometrist or physician. Our review of the Board revealed t h a t
the degree of regulation over dispensing opticians and related occupations
should be s u b s t a n t i a l l y revised and reduced i n that:
- The p o t e n t i a l r i s k t o the consuming public regarding the
dispensing of eyeglasses does not appear t o warrant licensure,
- A potential negative e f f e c t on the economic well- being of the
public e x i s t s due to unnecessary regulation,
- Arizona is one of only 19 s t a t e s t h a t license dispensing
opticians, and
- The benefits of licensure do not c l e a r l y outweigh p o t e n t i a l
adverse e f f e c t s .
Arizona Statutes
A. R. S. $$ 32- 1671 through 32- 1699 provide t h a t licensed dispensing
opticians may: 1) dispense eyeglasses, contact lenses, a r t i f i c i a l eyes
and other o p t i c a l devices on w r i t t e n p r e s c r i p t i o n from a licensed
physician or optometrist, and 2) reproduce eyeglasses or contact lenses
without prescription provided there is no change i n t h e p r e s c r i p t i o n .
The dispensing opticians law also allows two o t h e r c a t e g o r i e s of o p t i c a l
dispensers t o perform s i m i l i a r functions under the d i r e c t supervision of a
licensed physician, optometrist or dispensing optician:
- A. R. S. $ 32- 1682 subsection E requires that " any person desiring
to work as an apprentice dispensing optician" must obtain a
c e r t i f i c a t e of r e g i s t r a t i o n from the Board. An apprentice
dispensing optician is defined by A. R. S. $ 32- 1671 paragraph 1 as
" a person engaged i n the study of optical dispensing under the
i n s t r u c t i o n and d i r e c t supervision of a dispensing optician,
physician or optometrist licensed i n t h i s state."
- A. R. S. $ 32- 1691 exempts unlicensed optical dispensers from the
provisions of the dispensing opticians law, provided they work
under the d i r e c t supervision o f , and exclusively f o r , a licensed
physician, optometrist or dispensing optician and do not hold
themselves out to the public as a dispensing o p t i c i a n o r
apprentice dispensing optician.
A s of December 31, 1980, there were 383 dispensing opticians and 141
registered apprentice dispensing opticians i n Arizona.
Evidence Demonstrates the Need t o Reduce
and Revise Optical Dispensing Regulation
Our review revealed t h a t the current degree of regulation does not appear
t o be appropriate, given that:
- L i t t l e evidence e x i s t s t o support the contention t h a t physical
harm can r e s u l t from the dispensing of eyeglasses,
- Sunset l e g i s l a t i o n a u d i t r e p o r t s from other s t a t e s indicate a
possible degree of harm to the public from dispensing contact
lenses and a r t i f i c i a l eyes, and
- The benefits of licensing dispensing opticians do not clearly
outweigh any p o t e n t i a l adverse e f f e c t s .
Licensing is the most extreme form of s t a t e occupational regulation. In
March 1978, the Council of S t a t e Governments* published Occupational
Licensing: Questions a Legislator Should Ask. I n t h i s publication
licensing is defined as:
". . . a process by which an agency or government grants
permission t o an i n d i v i d u a l t o engage i n a given
occupation upon finding t h a t the applicant has attained
the minimal degree of competency required t o ensure
that the public health, safety, and welfare w i l l be
reasonably well protected.
" Licensing makes it i l l e g a l for anyone who does not
hold a license to engage i n the occupation, profession,
t r a d e , e t c . , covered by the statute...."
According t o the Montana Office of the Legislative Auditor i n its 1978
publication e n t i t l e d Alternative Methods of Regulating Professions,
Occupations, and I n d u s t r i e s , t h e r e are seven methods of s t a t e occupational
regulation.
These methods of occupational regulation range from the most extreme,
licensing, t o the l e a s t extreme, no regulation. The appropriate method of
regulation for a p a r t i c u l a r occupation is dependent upon the severity of
potential physical or f i n a n c i a l harm incompetent or unscrupulous
p r a c t i t i o n e r s may i n f l i c t upon the general public. The more severe the
potential for harm is t o the public, the more extreme the appropriate
method of s t a t e regulation. Conversely, the l e s s severe the p o t e n t i a l for
harm is to the public, the l e s s extreme the appropriate method of s t a t e
regulation.
The seven a l t e r n a t i v e methods of s t a t e occupational regulation are l i s t e d
below i n order from the most extreme t o the l e a s t extreme:
* The Council of S t a t e Governments is a joint agency of s t a t e
governments - created, supported and directed by them. It conducts
research on s t a t e programs and problems; maintains an information
s e r v i c e a v a i l a b l e t o s t a t e agencies, o f f i c i a l s , and l e g i s l a t o r s ;
issues a variety of publications; a s s i s t s i n state- Federal l i a i s o n ;
promotes regional and s t a t e - l o c a l cooperation; and provides s t a f f for
a f f i l i a t e d organizations.
Licensing The granting by some government authority of a r i g h t
or permission to carry on a business or do a n a c t
which would otherwise be i l l e g a l . The e s s e n t i a l
elements of licensing are the s t i p u l a t i o n of
circumstances and individual p r e r e q u i s i t e s under which
permission t o perform an otherwise prohibited a c t i v i t y
may be granted and the actual determination of
permission i n specific instances. The l a t t e r function
is generally an administrative r e s p o n s i b i l i t y and
includes rule- making authority by some e n t i t y .
Licensing may also create a mechanism for monitoring
an occupation or profession on an ongoing basis. This
may e n t a i l enforcement decisions made during complaint
adjudication, periodic inspections or investigations.
Licensing also provides a " police effect" over the
regulated profession, trade or industry.
Practice
Restriction - Differs from licensing i n that there is no need for an
interim body with the general authority t o promulgate
rules and regulations, and no s p e c i f i c mechanism for
monitoring the profession, trade or industry on an
ongoing basis.
Reserve of T i t l e - Any member of the public, who d e s i r e s , could
p a r t i c i p a t e i n the regulated occupation. However, the
t i t l e s of " c e r t i f i e d , " " licensed" or " registered"
would be reserved by law for only those who have met
c e r t a i n s t a t u t o r y requirements. The s t i p u l a t i o n of
individual p r e r e q u i s i t e s would be s e t by the
l e g i s l a t u r e . Requirements such as examination or
education may be imposed. An administrative body
attached t o a s t a t e agency or department may also be
necessary.
Limited Statutory
Regulation - S t a t e regulation of an occupation v i a s t a t u t e s which
specify c e r t a i n requirements. Under t h i s a l t e r n a t i v e ,
the s t a t e would s t a t u t o r i l y require an individual to
comply with c e r t a i n measures t o p r o t e c t t h e public.
These measures include requirements such as bonding,
e r r o r s and omissions insurance, or a recovery fund
which would monetarily protect the public i n the case
of harm o r l o s s through erroneous actions.
Registration - Allows persons practicing i n a profession, trade or
industry t o r e g i s t e r with the s t a t e , p r i v a t e o r
professional association. This a l t e r n a t i v e provides
the public with a list of r e g i s t e r e d i n d i v i d u a l s but
provides no assurance of the competency of the
individuals. Nonregistered individuals may
p a r t i c i p a t e i n the regulated profession, trade or
industry .
Certification* - Requires no s t a t e involvement. The profession, trade
or industry is responsible f o r c e r t i f i c a t i o n
requirements and procedures. C e r t i f i c a t i o n a c t s as an
i d e n t i f i c a t i o n measure only, indicating that the
individual has complied with c e r t a i n requirements.
No Regulation - No regulation by the s t a t e o r d i r e c t regulation by the
profession, trade or industry.
Professional and Occu~ ational
Regulation i n Arizona
In Arizona 95 professional and occupational areas are regulated.
P r a c t i t i o n e r s i n 81 ( 85 percent) of the professions and occupations are
licensed; 12 ( 13 percent) have reserved t i t l e s ; and two ( two percent) are
registered. Table 3 lists the type of regulation f o r each of these 95
professions and occupations.
* The Council of S t a t e Governments defines c e r t i f i c a t i o n as a form of
regulation which grants recognition to individuals who have met
predetermined q u a l i f i c a t i o n s s e t by a s t a t e agency. Only those who
meet the q u a l i f i c a t i o n s may l e g a l l y use the designated t i t l e .
However, n o n c e r t i f i e d i n d i v i d u a l s may offer s i m i l i a r services t o the
public a s long a s they do not describe themselves a s " c e r t i f i e d . " For
our purposes we have c l a s s i f i e d t h i s method of occupational regulation
a s " Reserve of T i t l e . "
.: r: r. i tt. c t.
Xt: orney s t Law
Saraer
i t ; r o p r a c t o r
Co-- etolop: ist
: e1: t31 Hygienist
f e n t a l Laboratory Technician
E r n t i s t
Ler.: urist
Poctor of Medicine
L'?,: nlrner
Pr. 6inec. r
f i r x e r Xsver
'" ? ur. eral D i n c t o r
Geologist
Hsir S t y l i s t
Ysnlcurist
:; aturopath
Cptceetrist
Csreopath Physician and Surgeon
P?.. srnacist
P:-. anacist I n t e r n
? h; sical Therapist
T o 4 i a t r i s t
2z: is: ered Nurse
Veterinarian
- REGISTRATION-Student
I n t e r n or Resident*'
- RESERVE OF TITLE-Assayer
C e r t i f i e d Fublic Accountant
Cos~ etologist****
Pkysician's Assistant
P r a c t i c a l Nurse
Psychologist
Public Accountant
Surveyor
" ether. Administrative Officer
A< rlc3lturr Pest Control Advisor
.4mbulance j e r v l c e
aoxirg and Idrestling Personnel
Cemetery aroker
Cexetery Salesman
Citrus aroker
Citrus Cor- xssion Merch3nt
Citrus Dealer
Citrus Packer
Citrus Shipper
Collection Agencies
Contractor
Court Reporter
DISPENSING OPTICIAN
Egg Dealer
Egg Xanufacturer
Egg Producer
Escrow Agent
Hay Broker or Dealer
Hearirz Aid Dispenser
Insurance Agent
Insurance Adjuster
Insurance aroker
Insurance S o l i c i t o r
Neat Processor, Wholesaler o r Jobber
Xidwife
lIanufactured Housing
Broker
Dealer
I n s t a l l e r
I, Ianufacturer
Mortgage Sroker
l o t o r C a r r i e r T r a n s p o r t a t i o n Agentif*
Hotor Vehicle Dealer and Wrecker
Xotor Vehicle Operator and Chauffeur
Polygraph Examiner
Polygraph I n t e r n
Private I n v e s t i g a t o r
P r i v a t e S e c u r i t y Guard Service
Private S e c u r i t y Guard
Private Technical or Business School
P r i v s t e Techrical o r Business School Aqent
Professional Driver Training School
InstructorX****
Fublic Weighmaster
Racing O f f i c i a l s and Personnel
Radiologic Technologist
Real Estate Broker
Real Estate Salesman
S e c u r i t i e s Dealer and Salesman
S t r u c t u r a l Pest Control
S t r u c t u r a l Commercial Application
Taxidermist
Trapper and Guide
Weight and Measure Serviceman
Weights and Measures Service Agencies
- REGISTRATION-APPRENTICE
DISPEllSINC OPTICIAN
- RESERVE OF TITLE-Ambulance
Driver and Attendant
Emergency Medical Technician
Public School Teacher. Administrative Officer
" a t n t e r ' s Seventh New Colleqiate Dictionary d e f i n e s a profession as: " a c a l l i n g
requiring speclnlized knowledge and often long and intensive academic
preparation."
" Student i n t e r n s or residents must neet sininrun requirements i n a d i i t i o n to
r e g l s t e r l n g . .*. Sepenled e f f e c t i v e July 1, 1982.
'"* Cosmetoloqivts practicing without conpenaation have a reserved t i t l e .
**-* Xust ke licensed only i f cornpensatLon is receiveti f o r the service.
L i t t l e Evidence of Physical Harm
During the five- year period between January 1, 1976, and December 31,
1980, the Board received only 96 complaints. Of these, only f i v e involved
allegations of possible visual harm. Of these f i v e , three involved the
dispensing of eyeglasses. An analysis of these complaints revealed that
a l l three were i n i t i a t e d against an o p t i c a l company and t h a t o p t i c a l
companies are not subject to regulation under the dispensing opticians
law. ( see page 65) Following is a description of these complaints:
CASE 1
The complainant alleged t h a t the o p t i c a l company was taking an excessive
amount of time t o provide her with the eyeglasses she had ordered. The
p o s s i b i l i t y of visual harm was alleged i n t h a t t h e complainant had " the
beginning of a cataract" and the lack of eyeglasses w a s causing her
" considerable s t r a i n and inconvenience." Board records indicate the
optical company delivered the glasses approximately four months a f t e r they
were ordered. However, Board f i l e s contain no record of the f i n a l
disposition of the complaint.
CASE 2
The complainant requested a refund from an o p t i c a l company f o r
unsatisfactory glasses. The complainant s t a t e d i n a l e t t e r t h a t the
optical establishment did not f i l l her prescription f o r eyeglasses
correctly. When she t r i e d t o use the g l a s s e s , she " had t o return them
because they blurred and distorted my vision, caused headaches and painful
eyeballs, as well a s the danger of my f a l l i n g , as I walk with some
d i f f i c u l t y . "
The complainant further explained:
" In f i l l i n g my p r e s c r i p t i o n , [ t h e o p t i c a l company]
f a i l e d to use t h e c o r r e c t base curve, a s was found to
be the case when I returned t o my ophthalmologist to
get the prescription checked.... Reexamination proved
the prescription t o be correct, and [ the
ophthalmologist] s t a t e d the base curve had been changed
a t the laboratory. He notified [ the o p t i c a l company]
to t h a t e f f e c t . "
Further, the complainant indicated t h a t the o p t i c a l establishment claimed
it was unable to f i l l her ~ r e s c r i ~ t i o" wn i th t h e c o r r e c t base curve."
Board records indicate the complainant received a refund f o r the glasses
from the management of the optical company.
CASE 7
Complainant reported t h a t h i s eyes and face became i r r i t a t e d due t o poor
q u a l i t y frames sold t o him by t h e o p t i c a l establishment. In a l e t t e r to
the Board the complainant wrote:
" Last year I bought a p a i r of gold [ r i m ] glasses from
[ the optical establishment]. I have had a l l kinds of
t r o u b l e s i n c e wearing these gold [ r i m ] glasses.. . .
F i r s t my eyes were sore and red - I had to go to an eye
s p e c i a l i s t from wearing the [ s t o r e ' s ] glasses. I have
never had eye trouble before. Also the gold has worn
off around the [ r i m ] of the glasses. Into my skin
causing an i n f e c t i o n of my face. Also my eyes were
constantly i r r i t a t e d and I had to purchase two
expensive prescriptions from the druggist because of
the damage from the glasses."
Board records i n d i c a t e t h e o p t i c a l company offered the complainant a new
pair of glasses a t no cost. However, Board f i l e s contain no record of the
f i n a l disposition of the complaint.
COMMENT
The above complainants made allegations of harm that appear t o be minor i n
nature.* The remainder of the consumer complaints f i l e d with the Board
regarding eyeglasses dealt with complainants inconvenienced because of
unacceptable product or s e r v i c e q u a l i t y .
No Evidence Of Harm Nationwide
According to a Legislative Council memorandum dated November 21, 1980,""
its s t a f f was unable to locate a court case "... in which a court was
presented with questions regarding the competency of an optician o r a
cause of action by a person allegedly harmed by the conduct of an
optician," e i t h e r i n Arizona or nationwide.
Furthermore, four of f i v e s t a t e s t h a t have issued Sunset l e g i s l a t i o n audit
review reports concluded t h a t no s i g n i f i c a n t h e a l t h hazard was posed by
the dispensing of eyeglasses.
Specifically, Sunset l e g i s l a t i o n reports from Alaska, Connecticut, North
Carolina and Vermont recommended t h a t regulation of o p t i c a l dispensing
p r a c t i t i o n e r s be terminated or s u b s t a n t i a l l y reduced. Each of the four
reports cited lack of evidence of physical harm due t o the dispensing of
eyeglasses as a reason f o r t h e i r recommendation.
* The subject of visual harm from the dispensing of contact lenses
appears on page 19.
** Appendix I contains t h i s memorandum.
The Vermont report stated:
" This conclusion [ t h a t no s i g n i f i c a n t h e a l t h hazard
e x i s t s due to opticians dispensing eyeglasses] was
supported by the Federal Trade Commission lawyer. .., who
has headed the FTC studies on opticians and
optometrists. h he FTC lawyer] stated t h a t accidental
f a l l s are the leading cause of injury among the aged,
and t h a t uncorrected vision defects are the cause of
over half of these accidents. These uncorrected vision
defects however are more l i k e l y t o be due t o the
u n a v a i l a b i l i t y of eyeglasses f o r the low income elderly
because of higher cost of spectacles i n licensed
s t a t e s , r a t h e r than improper dispensing. The problem
of u n a v a i l a b i l i t y , he s t a t e s , is more prevalent than
the problem of harm resulting from poorly f i t t e d
eyeglasses i n unlicensed s t a t e s . He s t a t e d , ' ( the)
very r a r e instances where it ( improper f i t t i n g ) can
have a demonstrated impact is more than o f f s e t by the
majority of cases where there is a negative impact by
decreasing consumption' . ""
Few States Deem Eyeglass
Dispensing Worthy of Regulation
Further evidence of the lack of harm associated with dispensing eyeglasses
is t h a t few s t a t e s regulate dispensing opticians. Arizona is one of only
19 s t a t e s t h a t license dispensing opticians. Thirty s t a t e s ( 60 percent)
do not regulate them. One s t a t e , California, licenses o p t i c a l businesses,
but not individual dispensing opticians.
However, it should be noted t h a t of the other 18 s t a t e s which license
dispensing opticians, a number have statutory provisions which are
s t r i c t e r than those i n Arizona."" Specifically:
- Eight s t a t e s d e f i n e a d d i t i o n a l or separate requirements for
licensure t o f i t contact lenses,
- Three s t a t e s do not allow dispensing opticians t o f i t contact
lenses,
- Six s t a t e s require apprenticeship before licensing, and
- Nine s t a t e s do not allow unlicensed persons to perform functions
similar to those of licensees.
* " Sunset Review of the Board of Examiners of Opticians to the Vermont
General Assembly," Legislative Council S t a f f , November 1980.
** See page 76 regarding licensing requirements i n other s t a t e s .
Possible Negative Effect on Economic Well- being
of Public from Unnecessary Regulation
Studies concerning the e f f e c t of regulation on the pricing of eyeglasses
indicate t h a t regulation of the optical industry and related professions
and occupations appears to i n c r e a s e t h e price of eyeglasses. One study,
conducted i n 1975 by Lee and Alexandra Benham of Washington University,
regarding the e f f e c t of professional regulation on t h e p r i c i n g of
eyeglasses, concluded that:
" [ ~ I r i c e s appear to be 25 to 40 percent higher i n the
markets with g r e a t e r professional control. These
higher prices are i n turn associated with a s i g n i f i c a n t
reduction i n the proportion of individuals obtaining
eyeglasses during a year."
A study by the Federal Trade Commission ( FTC) i n 1980 found similarly
t h a t , i n s t a t e s which r e s t r i c t commercial p r a c t i c e , prices f o r eye
examinations and eyeglasses are s u b s t a n t i a l l y higher than i n s t a t e s i n
which no such r e s t r i c t i o n s exist.*
P o s s i b i l i t y of Physical Harm through Dispensing
of Contact Lenses and Prosthetic Devices
Our review disclosed an apparently greater p o t e n t i a l f o r physical harm
from the dispensing of contact lenses and prosthetic devices ( such as
a r t i f i c i a l eyes) than from the dispensing of eyeglasses. Three of the
four s t a t e s whose Sunset l e g i s l a t i o n audit reports recommended termination
or reduction of regulation related to eyeglass- dispensing,** indicated a
need f o r regulation of prosthetic device and/ or contact lens dispensers.
S p e c i f i c a l l y , t h e Connecticut and Vermont reports pointed out the
p o s s i b i l i t y of physical harm r e s u l t i n g from the f i t t i n g of contact lenses
and prosthetic devices, and the North Carolina report mentioned the
p o s s i b i l i t y of physical harm resulting from the f i t t i n g of contact
lenses. The Connecticut report stated:
* Commercial practice r e s t r i c t i o n s a r e defined i n the FTC study as
" r e s t r i c t i o n s imposed primarily on optometrists and opticians which
l i m i t the a b i l i t y of those professionals t o work f o r ' f o r - p r o f i t '
corporations, r e s t r i c t the number of offices which they may operate,
l i m i t the locations at which they may practice ..., or prohibit the
use of a trade name."
** See page 17 regarding the reports from other s t a t e s .
" Data assembled by the committee and s t a f f strongly
indicate there e x i s t s no c l e a r and present danger t o
the public health and safety i n the preparation,
f i t t i n g and dispensing of eyeglasses. There does
e x i s t . however. a ~ o t e n t i a ld awer t o the ~ u b l i ci n the
i m ~ r o ~ ef irt t i n n and d i s ~ e n s i n go f contact lenses and
prosthetic devices. A poorly f i t contact lense can
cause corneal abrasion o r r e s t r i c t the oxygen- carrying
t e a r flow t o the surface of the eye. In the extreme,
t h i s s i t u a t i o n would create an abnormal growth of blood
vessels within the eye and could ultimately a f f e c t
v i s i o n . S i m i l a r l y , an improperly f i t or unsanitary
prosthetic device has t h e p o t e n t i a l f o r infection
and/ or i r r i t a t i o n t o the wearer.""
Although Legislative Council found no court cases nationally regarding
physical harm resulting from the f i t t i n g of optical devices by dispensing
opticians, our review of complaints received by the Board did disclose one
instance of a complaint requiring emergency hospital care due t o improper
f i t t i n g of hard contact lenses by a licensed dispensing optician."" In
addition, our review revealed a complaint alleging inflammation of the
eyes due t o unsatisfactory s o f t contact lenses. ( see Case I V , page 46)
Benefits Of Licensure Do Not Clearlv
Outweigh Any Potential Adverse Effects
We were unable to document c l e a r evidence of benefit to the public
resulting from licensure by the Board of dispensing opticians i n t h a t such
regulation, as it presently e x i s t s , d u p l i c a t e s t h e a c t i v i t i e s of the
Better Business Bureau ( BBB). In addition, the Board appears to be l e s s
widely known t o the public than the BBB.
* " Sunset Review: Commission of Opticians," Legislative Program Review
and Investigations Committee of the Connecticut General Assembly.
Vol. 1- 6, January 1, 1980.
** The absence of a Board i n v e s t i g a t i o n i n t o the complaint and inadequate
Board records preclude a determination of the v a l i d i t y of t h i s
complaint.
Duplication of Services Rendered
by the Better Business Bureau ( BBB)
The BBB receives an average of three times a s many consumer complaints
regarding optical dispensing each year as the Board of Dispensing
Opticians. In the three- year period from January 1, 1978, to December 31,
1980, the BBB received 95" consumer complaints, or an average of
approximately 32 consumer complaints a year. However, i n the f i v e years
from January 1, 1976, t o December 31, 1980, the Board received only 51
consumer complaints, an average of approximately ten each year. In
addition, the BBB disposes of its complaints i n a comparable manner a s the
I, Board. Table 4 summarizes the number and disposition of complaints by the
BBB and the Board.
TABLE 4
SUMMARY OF DISPOSITIONS OF CONSUPER COMPLAINTS
REGARDING OPTICAL DISPENSING BY THE BBB DURING
1978- 1980 AND BY THE BOARD DURING 1976- 1980
Complaints Received By
Disposition BBB Board
Percentage Percentage
Number Of Total Number Of Total
Reparation ( replacement or refund) 54
Other action ( other voluntary
adjustments) 12 13.2 0
Complaint dismissed 21 23.1 18 35.3
In process on December 31, 1980 0 0 4 7 - 8
No record of action
Totals
* Four of the 95 BBB complaints also appeared i n the Board f i l e s . These
complaints were removed from the BBB tabulations t o avoid duplication.
A s shown i n Table 4, reparation was the most frequent disposition for both
the Board ( 39 ~ e r c e n t ) and the BBB ( 59 percent). Thus, the BBB disposed
of complaints i n a manner a t l e a s t comparable t o the Board.
It should be noted t h a t while reparation may be an appropriate disposition
of complaints by the BBB, reparation is not a s t a t u t o r i l y allowed
complaint disposition by the Board. S t a t u t o r i l y required procedures
notwithstanding, Board practice has been t o pursue reparation i n place of
i n v e s t i g a t i o n of possible d i s c i p l i n a r y a c t i o n a r i s i n g from consumer
complaints regarding product or service quality."
C ONC LUSI ON
Regulation of dispensing opticians and related occupations should be
s u b s t a n t i a l l y reduced because: 1) the r i s k t o the visual health of the
public from the dispensing of eyeglasses does not appear t o warrant
licensure, and 2) benefits of regulating eyeglass dispensing do not
outweigh p o t e n t i a l adverse e f f e c t s .
REC OMMENDATI ON
It is recommended t h a t consideration be given t o the following
a l t e r n a t i v e s :
1. Revise s t a t u t e s to r e q u i r e l i c e n s u r e of contact lens dispensers
only.
2. Eliminate regulation of dispensing opticians and the Board of
Dispensing Opticians.
I f continued regulation is chosen, the statutory changes detailed on
page 66 should be considered.
* See Finding I11 on page 37.
2 2
FINDING I1
THE EXAMINATION PROCESS OF THE BOARD OF DISPENSING OPTICIANS IS ARBITRARY
AND OF QUESTIONABLE INTEGRITY.
Persons wishing to be licensed as dispensing opticians i n Arizona, unless
they have been licensed by Georgia, Massachusetts, Nevada or Virginia,
must pass an examination prepared and administered by the Board. Our
review of the Board's examination process revealed t h a t : 1 ) t h e Board has
graded answers t o c e r t a i n examination questions a r b i t r a r i l y and
inequitably, and 2) the manner i n which the Board prepares and
administers examinations 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. A s a r e s u l t , it appears t h a t the Board has not
treated a l l l i c e n s e a p p l i c a n t s equitably, and l e g i s l a t i v e i n t e n t regarding
the t e s t i n g of an a p p l i c a n t ' s knowledge is not being met.
Statutory Requirements
A. R. S. $ 32- 1682" s t a t e s , i n p a r t , that a written and p r a c t i c a l examination
s h a l l be administered to license applicants:
" D. The board s h a l l give a written and p r a c t i c a l
examination to a l l applicants, except for applicants
who qualify by reciprocity, as provided i n $ 32- 1683,
paragraph 6, subdivision ( a ) , to a s s i s t it i n
determining whether an applicant has acquired the
minimum basic s k i l l s required for o p t i c a l dispensing.
The board may prescribe such reasonable rules and
regulations r e l a t i n g to the examination of applicants
as may be deemed necessary f o r the performance of its
duties. "
* Appendix I1 contains applicable State laws.
Arizona Administrative Rule R4- 20- 02," promulgated by the Board, f u r t h e r
specifies that the Board's written examination s h a l l consist of four
sections, each containing one of the following subject areas:
1. Ocular anatomy, physiology and anomalies,
2. Geometric optics,
3. Ophthalmic laboratory, and
4. Contact lenses.
The Board's practice for a t l e a s t t h e p a s t f i v e years has been t o include
i n the written examination 20 multiple choice questions for each of the
four sections.
The Rule also requires that a p r a c t i c a l examination be administered,
consisting of a t e s t for " measuring optical devices such as eyeglasses and
contact l e n s e s , i n t e r p u p i l a r y d i s t a n c e and corneal curvature." The same
rule requires that a minimum score of 75 percent be achieved on each of
the four written examination sections and on the p r a c t i c a l examination.
In addition, the Board is required to administer an examination " not l e s s
than twice a year."
Applicants are allowed to repeat an unlimited number of times the portions
of the examination they f a i l e d . However, f o r each retake a f t e r the second
f a i l u r e the applicant again must pay the $ 50 f i l i n g fee.
Analysis of Questionable
Grading Procedures
Our review of examination grading practices consisted of a
question- by- question analysis of every individual examination administered
by the Board i n the four separate examination s i t t i n g s during 1979 and
1980. The following procedures were used:
* Appendix I11 contains applicable rules.
- Comparison was made of: 1) o r i g i n a l answers marked by
examinees, 2) t h e c o r r e c t answers according to the Board's
examination key, and 3) the answers graded as correct and
incorrect on the answer sheets.
- Exceptions i n grading were noted from the above comparison, such
as: 1) c r e d i t given f o r more than one answer on a question, and
2) questions not graded according to the keys.
- Questions for which the Board allowed more than one answer were
submitted, along with each possible answer choice to a professor
of ophthalmology from the University of Arizona f o r review and
analysis.
- The professor was requested to s e l e c t the correct answers and
comment on the v a l i d i t y of the questions and t h e i r answers.
During the calendar years 1979 and 1980, the Board administered 192
individual examinations during f o u r s e p a r a t e examination s i t t i n g s . Of
these 192 individual examinations:
1. Grading changes were made a r b i t r a r i l y on 25 examinations,*
2. Grading changes were not applied equally t o a l l license
applicants, thus adversely a f f e c t i n g 62 examinations," and
3. Three examinations were not graded i n accordance with the
examination keys .
Arbitrary Grading Changes
Our review of every written examination i n 1979 and 1980 disclosed t h a t
the Board a r b i t r a r i l y regraded 23 applicants' t e s t s . A s a r e s u l t , eleven
applicants passed examination sections they otherwise would not have
passed were it not for the regrading.
* Since i n d i v i d u a l a p p l i c a n t s are allowed t o repeat the examination an
unlimited number of times a t l a t e r s i t t i n g s , the numbers i n 1. and 2.
above represent duplicated counts. The actual number of individuals
involved is 23 f o r 1. and 53 for 2.
According to the University of Arizona ophthalmology professor, only one
correct answer e x i s t s f o r four of the f i v e questions involved i n the
regrading. The other question was so " poorly worded" that it should have
been eliminated from the examination. Table 5 summarizes the r e s u l t s of
our review of these f i v e questions.
TABLE 5
REV1 EW SUMMARY OF SELECTED EXAMINATION
QUESTIONS* USED BY THE BOARD OF DISPENSING
OPTICIANS DURING 1979 AND 1980""
Answer
According to
Quest ion Original
Reviewed Examination Key
1 d
Answers Allowed
by Board
as Correct
Correct Answer
as I d e n t i f i e d
by U of A
Ophthalmologist
Unclear question/
should be eliminated
a
d
C
d
A s shown i n Table 5 , t h e Board inappropriately accepted from two t o f i v e
answers as correct f o r the five questions reviewed. Further, the
ophthalmologist who reviewed the examinations considered one of the f i v e
questions unacceptable.
It should be noted t h a t the Board o r i g i n a l l y graded the t e s t questions
shown i n Table 5 according t o t h e i r respective keys, but l a t e r changed the
answers o r i g i n a l l y marked as incorrect to correct. Thus, the changes
summarized i n Table 5 represent deliberate decisions by Board members.
Table 6 summarizes the impact of the Board's practice of regrading
examinations during 1979 and 1980.
* Answers were multiple- choice, with f i v e i d e n t i f i e d possible answers
labeled a through e.
** On June 10, 1981, a Board member s t a t e d t h a t four of these f i v e
questions had been eliminated from the question pool since the
December 1980 s i t t i n g . The other questions had been changed so t h a t
only one answer could be regarded as correct.
TABLE 6
SUMMARY OF THE IMPACT OF THE BOARD ' S PRACTICE
OF REGRADING EXAMINATIONS DURING 1979 AND 1980
Number of
Candidates Who
Passed the
Number of Number of Examinat ion
Examination Question Instances Candidates Because
Date Regraded of Regrading Affected of Regrading
June 1979 1
December 1979 None
June 1980 2 and 3
December 1980 4 and 5
Totals
A s shown above, during 1979 and 1980 the Board regraded 34 questions
involving 23 applicants ( eleven applicants had more than one question
regraded), which resulted i n eleven candidates receiving passing scores
they otherwise would not have received were it not for the regrading.
Grading C h a ~ e sW ere Not
Applied Consistently
Our review also revealed t h a t when the Board regraded an answer on one
examination question, other applicants who responded similarly were not
regraded. This inconsistent grading occurred 79 times i n 1979 and 1980.
This inconsistency resulted i n one c a n d i d a t e ' s n o t passing an examination
section t h a t he otherwise would have passed had he been given c r e d i t f o r
an answer the Board had accepted as c o r r e c t from other candidates.
Table 7 summarizes the impact of the Board's inconsistent regrading
practices during 1979 and 1980.
* Two applicants involved i n the regrading who took the examination i n
June 1979 took a d i f f e r e n t examination section i n June 1980, which the
Board also regraded. To avoid duplication, audit s t a f f reduced by two
the Number of Candidates Affected f o r June 1979.
TABLE 7
SUMMARY OF THE IMPACT OF THE BOARD'S
INCONSISTENT REGRADING DURING 1979 AND 1980
Number of
Instances
i n which
a Candidate
Did Not
Receive Credit
for an Answer
Accepted
as Correct
Examination from other
Date Candidates
June 1979 7
December 1979 0
June 1980 57
December 1980 - 15
Totals 29
Number of
Examinations
on which a
Candidate Did
Not Receive
Credit f o r
an Answer
Accepted
as Correct
from other
Candidates
Number of
Candidates
Who Did Not
Receive Credit
for Answers
Accepted as
Correct from
other
Candidates
Number of
Candidates Who
Would Have
Passed an
Examination
Section Had
They Been Given
Credit f o r an
Answer Accepted
as Correct from
other Candidates
A s shown above, the Board was inconsistent i n regrading questions 79 times
on 62 examinations involving 53 individuals during 1979 and 1980. These
62 examinations represent 32 percent of the t o t a l 192 examinations
administered i n t h a t period. Ultimately, the grading inconsistencies
caused one individual to f a i l an examination section.
Grading Did Not Always Agree
with Examination Keys
Our review of the 1979 and 1980 examinations also disclosed t h a t three
examinations were graded incorrectly i n t h a t the marked answers did not
agree with the examination key. Although these grading e r r o r s appear t o
be only Board oversight, one candidate did pass an examination section
because of the misgrading.
* Since individuals can repeat examinations an unlimited number of
times, the 62 examinations upon which a candidate did not receive
c r e d i t f o r an answer accepted by the Board as correct from other
candidates involved 53 individuals.
Grading Practices Raise
Serious Legal Questions
According to the Legislative Council i n a memorandum dated May 20, 1981,"
a State licensing board is responsible f o r f a i r and consistent examination
of license applicants:
" The Board a s the administrator of the examination and
licensing process has t h e r e s p o n s i b i l i t y to administer
examinations to ensure the f a i r and consistent
application of examination requirements. Fundamental
f a i r n e s s d i c t a t e s t h a t c r e d i t be extended to a l l
applicants who responded similarly to the same
question."
Further, Legislative Council cited possible problems of due process and
equal protection i n cases of unfair or inconsistent grading:
" A s t a t e cannot exclude a person from the practice of
an occupation i n a manner, o r f o r a reason, t h a t
contravenes the due process clause of the Fourteenth
Amendment....
" Similarly, equal p r o t e c t i o n r e q u i r e s t h a t d i f f e r e n t
treatment of persons s i m i l a r l y s i t u a t e d be j u s t i f i e d by
an appropriate s t a t e i n t e r e s t . We f a i l t o see on the
f a c t s provided an appropriate s t a t e i n t e r e s t i n the
d i f f e r i n g treatment accorded by the board to applicants
for licensure a s dispensing opticians.
" The ~ r a d i n a practices described r a i s e serious
auestions concernillg the effectiveness of the board's
examination procedures t o determine competency and
proficiency of applicants. The dual purpose of
determining competency of license applicants and
~ r o t e c t i mt he ~ u b l i ca gainst unaualified professionals
is not served by designing t e s t questions i n which four
out of f i v e possible answers are correct. The board's
procedure f o r exam question development and exam
grading should be closely reviewed to ensure t h a t
public purposes a r e being served and t h a t license
applicants are being f a i r l y treated." (~ mphasisa dded)
* Appendix I V contains a copy of t h i s memorandum.
Questions Regarding the Validity
of the E n t ~ r eE resination Process
The Board is required by S t a t e law t o administer its own examination for
licensure t o applicants who do not qualify f o r comity.* Our review of the
Board's locallg develoged examination and its administrative procedures
r a i s e s serious questions regarding the v a l i d i t y of t h e l i c e n s u r e process
i n that: 1) the Board has f a i l e d to provide for adequate preparation,
administration and storage 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
Board members who may not be qualified t o perform those functions.
Lack of Adequate Preparation and
Administration of Examinations by the Board
Our review of the Board ' s preparation and administration of examinations
revealed problems concerning the currency, v a l i d i t y and i n t e g r i t y of the
examination process. The Board's established p o l i c i e s with regard t o the
preparation and administration of written examinations are as follows:
- Twenty questions f o r each of t h e f o u r written sections are
selected by the Board from a pool of examination questions
established over approximately 20 years.
- The pool consists of approximately 50 to 70 questions f o r each of
the four written examination sections.
- The examination questions were developed by individual Board
members.
- An examination question t o which fewer than approximately 50
percent of t h e a p p l i c a n t s respond correctly is rejected by the
Board for use i n future examinations.
- Questions are not to be repeated from one examination t o another
sooner than the t h i r d consecutive examination following its use.
- An applicant who f a i l s the examination may review o r a l l y with a
Board member those questions missed, the answers they marked
incorrectly and the correct answers.
* See footnote on page 69 f o r a d e f i n i t i o n of comity.
30
- An applicant who f a i l s the examination may repeat it a t the next
s i t t i n g and a t any number of s i t t i n g s thereafter.
- According to a Board member, one applicant challenged an answer
for which he received no credit. He was given credit for the
question even though the Board thought that it was only remotely
possible that his answer was correct.
Our review revealed serious deficiencies as a result of these policies and
a c t u a l p r a c t i c e s i n that:
- New examination questions have not been added to the pool of
questions f o r the past three years,
- Answers to questions they missed are accessible to applicants
f a i l i n g examinations,
- Applicants may take the licensure examination repeatedly, and
- Contrary to Board policy, i n 1979 and 1980 identical questions
from the four sections of the written examination were repeated
i n the same section a t the next examination s i t t i n g 22.5 percent
of the time.
Taken together, these f a c t s demonstrate that: 1) an applicant has easy
access to examination questions and t h e i r correct answers, and 2) because
of question repetition, an applicant may improve h i s score without
necessarily increasing his level of knowledge.
Problems with Examination Storage
The Board retains one copy only of examination questions and one copy of
each examination that has been administered since 1973. Further, the
questions and examinations are stored i n the home of the Board's recording
secretary. Such a policy could cause problems i n the event of an
emergency or i f the single copy of the examination or questions were
destroyed accidentally.
Questionable Board Procedures f o r Developixx
and Gradin-- g. She Dispenskrg Opticians Examination
The Board is required by statute to prepare and administer an examination
for licensure to applicants who do not qualify by comity. Although the
Board attempted to promulgate a r u l e i n October 1980 allowing the
examination given by the Opticians Association of America ( OAA) t o be used
i n l i e u of its own examination, the Attorney General opined t h a t State law
precluded the Board from enacting the rule. A. R. S. $ 32- 1682. D s t a t e s , i n
part:
" The Board s h a l l give a written and p r a c t i c a l
examination to a l l applicants, except f o r applicants
who qualify for reciprocity ..."
Legislative Council, i n a memorandum dated November 21, 1980," agreed with
the Attorney General i n t h i s matter, s t a t i n g t h a t the Board cannot allow
an examination prepared and administered by an outside source, such a s the
OAA, t o be used i n l i e u of the examination which the Board prepares and
administers l o c a l l y :
" Administration and grading of an examination by ( an
organization other than the ~ o a r d ) would, be an invalid
delegation of a duty imposed upon the Board by s t a t u t e ,
" A provision t h a t the Board ' s h a l l give' a written and
p r a c t i c a l examination t o a l l applicants, with the
specific exception of applicants holding licenses from
other s t a t e s having requirements s u b s t a n t i a l l y
equivalent to those of t h i s State, imposes a mandatory
duty upon the Board t o give an examination t o such
applicants."
The process by which the Board prepares and administers its written
examination r e l i e s heavily on the a b i l i t y of Board members to: 1) prepare
examination sections t h a t a r e valid t e s t s 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 to applicants. Individual
Board members may not possess such a b i l i t y or the expertise to perform
these functions, e s p e c i a l l y s i n c e they have not received s p e c i f i c t r a i n i n g
or education.
* Appendix V contains a copy of this memorandum.
It should be noted t h a t from 1973 through 1975 the Board used s t a f f from
Pima Community College to prepare examination questions. However,
according t o a former Board chairman, the practice was discontinued
because the f a i l u r e r a t e was much higher when the college- developed
examination questions were used.
A Study of Professional and Occupational Licensing i n California,
published i n 1977, cited a n a t i o n a l a u t h o r i t y on occupational licensing
who 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 s e v e r a l 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 that:
' Board members have taken i t upon themselves t o develop
and administer examination without any t r a i n i n g f o r the
task and without o u t s i d e h e l p ' . " (~ mphasis added)
The study i d e n t i f i e d problems regarding Board- prepared examinations; the
quality and appropriateness of the questions:
" Even more vexing problems e x i s t with regards t o 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
t o 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 or any understanding of
helpful business methods."
According t o Mr. Shimberg, the problems of Board- prepared examinations
could be avoided i f boards relinquished the job of designing t e s t s to
outside experts or used one of the national t e s t i n g programs developed by
many trade and professional associations.
Descriptions of the Opticians
Association of America ( OAA) Examinations
Two divisions of 8AA each prepare an examination f o r the c e r t i f i c a t i o n of
dispensing opticians. One d i v i s i o n , t h e American Board of Opticianry
( ABO) has prepared an examination which covers general optical dispensing,
while the o t h e r d i v i s i o n , t h e National Contact Lens Examiners ( NCLE), has
prepared an examination for proficiency i n contact lens dispensing. Both
examinations are administered by the Educational Testing Service ( ETS)
and, according t o the d i r e c t o r of government r e l a t i o n s f o r OAA, both are
given twice annually.
According t o a survey by the Auditor General of s t a t e s other than Arizona
which require licensure of dispensing opticians, as of March 1981, eight
of the 18 s t a t e s accepted passage of one or both OAA examinations 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 f o r licensure. Table 8 lists the s t a t e s accepting the OAA
examinations a s of t h a t date.
TABLE 8
USAGE OF OAA EXAMINATIONS BY STATES WHICH
LICENSE DISPENSING OPTICIANS AS OF MARCH 1, 1981
Accepts Accepts Accepts
State ABO Exam NCLE Exam Neither
Alaska
AH ZONA
Connecticut
Florida
Georgia
Hawaii
Kentucky
Massachusetts
Nevada
New Jersey
New York
North Carolina
Ohio*
Rhode Island
South Carolina
Tennessee
Vermont
Virginia
Washington
Totals
A s i l l u s t r a t e d i n Table 8, 44 percent of the s t a t e s other than Arizona
which license dispensing o p t i c i a n s use the national examinations.
CONCLUSION
The Board of Dispensing Opticians has f a i l e d t o maintain an adequate and
equitable examination process. The Board has i n c o r r e c t l y , a r b i t r a r i l y and
inconsistently graded written examinations f o r licensure. I n addition,
the Board has maintained several questionable procedures with regard t o
preparation, administration and storage of its examinations. A s a r e s u l t
of Board actions, it appears t h a t : 1 ) the Board has not t r e a t e d l i c e n s e
applicants equally, and 2) l e g i s l a t i v e i n t e n t regarding the t e s t i n g of an
a p p l i c a n t ' s knowledge is not being met.
* ETS makes up a separate examination f o r Ohio. ETS administers a l l OAA
examinations.
RECOMMENDATION
I f regulation is continued, it is recommended t h a t consideration be given
t o the following options:
1. A. R. S. $ 32- 1682 be amended to allow acceptance of OAA scores i n
Arizona i n l i e u of a l o c a l l y prepared examination.
2. The Board slow the frequency with which examination questions
currently are repeated.
3. The Board consider contracting with examination experts t o a s s i s t
i n the preparation of examination questions.
4. The Board establish and maintain b e t t e r q u a l i t y c o n t r o l of
examination questions and grading procedures.
FINDING I11
IPPROVEMENTS ARE NEEDED I N THE BOARD OF DISPENSING OPTICIANS' COMPLAINT
REVIEW PROCESS.
The Board of Dispensing Opticians is responsible f o r prescribing and
enforcing rules and regulations to help ensure the competency of
dispensing opticians and prevent conduct on t h e i r part which would tend t o
harm t h e v i s u a l h e a l t h of the public. An i n t e g r a l p a r t of the Board's
r e s p o n s i b i l i t y t o protect the public is the i n v e s t i g a t i o n and resolution
of consumer complaints f i l e d with the Board. Our review revealed t h a t the
Board has been c o n s i s t e n t l y d e f i c i e n t i n i t s i n v e s t i g a t i o n and resolution
of complaints from consumers f o r services rendered by dispensing
opticians. The Board did not d i s c i p l i n e a single dispensing optician a s a
r e s u l t of a consumer complaint f i l e d during the five- year period ended
December 31, 1980.
Our review f u r t h e r demonstrated t h a t :
- The Board has not investigated numerous complaints s u f f i c i e n t l y ,
and
- Statutory changes are needed t o enhance the Board's a b i l i t y t o
resolve complaints effectively.
A s a r e s u l t , it appears t h a t the Board's a b i l i t y t o regulate dispensing
opticians e f f e c t i v e l y is questionable.
Statutorv Reauirements
Regarding Complaints
A. R. S. $ 32- 1673" describes the duties and powers of the Board regarding
complaints :
" Appendix I1 contains applicable s t a t u t e s .
" The board s h a l l prescribe and enforce r u l e s and
regulations ... necessary or advisable... which help to
assure the competency of dispensing opticians and
prevent conduct on t h e i r part which would tend t o do
harm to the visual health of the public." (~ mphasis
added)
Further, A. R. S. $ 32- 1693 subsection A* defines the extent of d i s c i p l i n a r y
powers:
" The board... may suspend or revoke the license of any
person who v i o l a t e s any provision of t h i s chapter or
the rules and regulations of the board."
A. R. S. $ 32- 1697" contains a provision f o r the Board t o r e f e r cases t o the
courts f o r imposition of a f i n e f o r unlicensed a c t i v i t y :
i
" The practice of o p t i c a l dispensing without a valid and
subsisting license is a petty offense."**
In a d d i t i o n , t h e Board has promulgated Arizona Administrative Rule
R4- 20- 06""" to define procedures f o r formal and informal hearings and
informal disposition of cases through s t i p u l a t i o n , agreed settlement,
consent order or default.
Complaints Considered by the
Board of Dispensing Opticians
The Board reviews two types of complaints - consumer and Board- initiated.
Consumer complaints include those f i l e d by persons who believe they have
received unsatisfactory or unacceptable services or products from: 1) a
licensed dispensing optician, 2) another p r a c t i t i o n e r i n the f i e l d of
optical dispensing, or 3) an o p t i c a l establishment. Board- initiated
complaints are concerned primarily with possible violations of State laws
regarding advertising, r e g i s t r a t i o n , use of the t i t l e " Dispensing
Optician" by unlicensed persons, and the dispensing of optical devices by
unlicensed persons without the d i r e c t supervision of a licensed dispensing
optician, optometrist or physician.
* Appendix I1 contains applicable s t a t u t e s .
** A. R. S. $ 13- 802. D c l a s s i f i e s petty offense convictions a s criminal;
however, no imprisonment is authorized f o r practicing o p t i c a l
dispensing without a license. The Board may r e f e r cases t o the
courts which, i n turn, may levy a f i n e of up to $ 300 f o r such an
offense. *** Appendix I11 contains applicable rules.
Table 9 summarizes the number and bases of complaints received by the
Board from January 1, 1976, through December 31, 1980.
TABLE 9
SUMMARY OF THE NUMBER AND BASES OF COMPLAINTS
RECEIVED BY THE BOARD OF DISPENSING OPTICIANS
FROM JANUARY 1, 1976, THROUGH DECEMBER 31, 1980
Basis of Complaint
Unacceptable eyeglasses or related
services
Unacceptable contact lenses or
related services
Unlicensed a c t i v i t y
Fee dispute
False or misleading advertising
Assault
Other
Basis of complaint cannot be
determined due to inadequate
board records
Total
Percentages of t o t a l complaints
Number of Complaints
I n i t i a t e d by:
Consumers Board Total
A s demonstrated i n Table 9, consumer- filed complaints constituted 53.1
percent of the complaints reviewed by the Board from January 1, 1976,
through December 31, 1980.
However, for the 96 complaints received i n 1976 through 1980, the only
d i s c i p l i n e imposed by the Board against dispensing opticians involved
Board- ini t i a t e d complaints regarding licensure and advertising. The Board
did not d i s c i p l i n e a single dispensing optician a s the r e s u l t of 51
consumer complaints regarding q u a l i t y of service or products during t h a t
period .*
* Based on a complaint received i n November 1980 regarding a s s a u l t of
a consumer by a licensee, i n March 1981 the Board voted to suspend
the license of the dispensing optician f o r 30 days. The licensee
appealed t h e decision t o the Board and, i n May 1981, the Board
reduced the period of suspension t o seven working days. A s of May
1981, the case remained open pending f u r t h e r appeal action. Prior
to the March 1981 decision, a former Board chairman, i n discussing
the f a c t t h a t the Board had not suspended or revoked any license,
indicated t h a t t h i s a s s a u l t case was one t h a t was serious enough t o
warrant suspension or revocation.
Furthermore, among 45 Board- initiated complaints, only s i x substantial*
d i s c i p l i n a r y a c t i o n s have been imposed. A s of December 31, 1980, the
Board had not suspended or revoked any licenses.
Table 10 summarizes the disposition of complaints reviewed by the Board
from 1976 through 1980.
* Includes revocation, suspension, cease and d e s i s t l e t t e r s and fines.
40
SLRII. IARY OF DISPOSITIONS OF CONSliElCR AND HOAItD- INITIATED COEII'IA INTS
RCCElVCD BY TlIC UOARII OF DISI'CNSING OI'TIClANS DURING
CAI. ENI> AR YEARS 1976 TIIROUGH 1980
n i s c i p l i l ~ e Imposcd No D i s c i p l i n a r y Action by Board
Reparations
Roard Ruled Made t o
No V i o l a t i o n Board Ruled Complainant: R e f e r r e d t o Ko Record
Ceasc and of isp pen sing I t llad No No Additional V o l ~ ~ n t a r y In Ano~ her o f
~ c v o c a t i o n S u s ~ e n s i n n D e s i s t I . c t t e r Optician Law . J u r i s d i c t i o n Action Taken Compliance o t h e r Process ~ i ~ ~~ o~ tal~ s i -('~ .- I u:: I'\~~[' IIV? II ~ I 1 ryrs
l ' r ~ a c c c j ~ t : ~ l > f illcr ~ s s c sa nd r e l a t e d s e r v i c e s :
a ) ,\ llc, i: ecl v i s u a l harm
b ) Ilt11t. r
I! onccrptalilt- cont. ict leillcs and r e l a t e d
s < , r v i i t . h :
a ) Allt. geil v i s u a l harm
h ) 0 t t~ t. r
Frc d i s p l ~ t e
0tl1i. r
n. ts i s 01 cc, rnllla i n t canttot be determined
due to f r ~ a d t . q ~ i a tUeo iard records
l'crccnt, rgc of t o t a l
st- -
ROARD - TFTT TATFn C0' IPT. A INTS
False or mis lead ing a d v e r t i s i n g
I'll1 icrn.; etl nc t i v i t y
111 her
-- " As tile r e s u l t oE a consumer complaint regarding a s s u a l t by a l i c e n s e e , the Board voted
t o stispcr~ d the licerisc of t h e d i s p e n s i n g o p t i c i a n f o r 30 days i n March 1981. On f i r s t
appeal the Roard reduced the suspension t o 7 days. As of May 19, 1981, t h e c a s e was
s t i 11 i n p r o c e s s , pending f u r t h e r appeal. ** I n i t i a l l y received hy the Eoard as a consumer complaint a l l e g i n g unacceptable e y e g l a s s e s ,
c o n t a c t lenses o r r e l a t e d s e r v i c e . However, the Board chose t o pursue the complaint s o l e l y
011 tlic h a s i s of wtleti~ er t h e d i s p e n s e r was licensed and never addressed t h e i s s u e of the
q u a l i t y of s e r v i c e provided to the consumer. *** P e r c e ~ ~ t a goef t o t a l does not add t o 1 0 0 W u e to rounding e r r o r .
A s shown i n Table 10, the only d i s c i p l i n a r y actions imposed by the Board
during 1976 through 1980 related t o Board- initiated complaints concerning
unlicensed a c t i v i t y and advertising. Furthermore, as of December 31,
1980, the most severe d i s c i p l i n e imposed by the Board regarding
Board- initiated complaints resulted i n a f i n e of $ 56 related to unlicensed
activity.* The remainder of the actions consisted of cease and d e s i s t
l e t t e r s . This lack of d i s c i p l i n a r y action on t h e p a r t of the Board,
together with inadequate i n v e s t i g a t i o n of complaints, r a i s e s serious
questions regarding the Board's a b i l i t y t o e f f e c t i v e l y regulate optical
dispensing i n Arizona.
Board Failure to Resolve
Consumer Complaints Appropriately
During the five- year period ended December 31, 1980, the Board
consistently f a i l e d to a c t appropriately on consumer complaints regarding
the quality of service or products received. In seven of 51 cases, the
Board did not i n v e s t i g a t e t h e consumer complaint t o determine i f State law
had been violated, or it referred the complainant t o another e n t i t y , such
as the c i v i l court system or the Consumer Fraud Division, Office of the
Attorney General.
In 20 other cases, the Board attempted to placate the complainant by
obtaining reparation, or some other concession, from the licensee. For
these 20 cases, audit s t a f f could not find a record of Board
investigations to determine i f t h e l i c e n s e e had provided substandard or
incompetent service.
The following cases are examples of inappropriate Board action on consumer
complaints.
* It should be noted that the complaint that resulted i n t h i s f i n e was
originated by a consumer regarding q u a l i t y of service. ( see page 63)
CASE I
On October 29, 1979, the Board received a copy of a complaint o r i g i n a l l y
f i l e d with the Financial Fraud Division, Office of the Attorney General."
Board records indicate the complainant had received eyeglasses which had
not been made according t o the prescription, and had complained, " i f
glasses were corrected it would cost us $ 30 more."
Because of inadequate Board records,"" we found no documentation regarding
disposition of the case, except t h a t i t was discussed a t the November and
December 1979 regular Board meetings. However, audit s t a f f discovered a
memorandum from the Attorney General concerning t h i s case and two others
under consideration a t the same time. The memorandum, dated November 28,
1979, read:
" I have reviewed your l e t t e r s of November 10, 1979,
concerning t h e t h r e e complaints. The method used t o
resolve t h i s matter is inappropriate and does not meet
the obligation of the Board of Dispensing Opticians t o
protect the public from unqualified p r a c t i t i o n e r s . The
matter should not be d i s ~ o s e d of merelv because the
p a r t i e s have reached a mutual agreement; it is
necessary t o investigate a l l complaints i n order to
determine i f a v i o l a t i o n of the Board,.. laws has
occurred and the Board.. . is obligated t o take
appropriate action i f and when a violation of its laws
is discovered regardless of any settlement of the
matter between the p a r t i e s . " (~ mphasis added)
Board Action
No record of the Board's disposition of t h i s case was available.
Comment
According to available records, the Board attempted t o resolve t h i s
complaint through mutual agreement, but did not conduct an investigation.
* The Attorney General forwarded the complaint to the Board of Optometry
which, i n turn, forwarded it t o the Board of Dispensing Opticians. ** See page 78 regarding record- keeping inadequacies.
CASE I1
On November17, 1976, the Board received a complaint regarding
unsatisfactory eyeglasses, possible damage to an eye and extensive time
lapse to replace the u n s a t i s f a c t o r y g l a s s e s :
" on April 23, 1976, I.. . paid a deposit and ordered a
p a i r of glasses. A s of the above f i l i n g date, I have
not received the glasses. I have the receipt... which
v e r i f i e s t h e g l a s s e s were ordered i n April. I f e e l
t h e i r negligence is unexcusable, and of possible damage
t o my eyes.
"... They presented me with t h e g l a s s e s i n June, but as
my eye doctor v e r i f i e d it as the wrong prescription,
they were t o re- do i t . " ( ~ m ~ h a saidsd ed)
Board Action
On November 18, 1976, the Board sent a l e t t e r t o the person i n charge of
t h e o p t i c a l establishment requesting t h a t he " try t o arrange a settlement
which w i l l be mutual4y satisfactory."
A week l a t e r the store manager advised the complainant by mail t h a t a
refund would be sent t o him. On December 1, 1976, the complainant wrote
the following to the Board:
". ... I had sent a complaint to you regarding the f a c t
t h a t t h e o p t i c a l establishment had taken over seven
months not to get my glasses t o me. You asked me t o
i n f o m you of t h e d i s p o s i t i o n of the matter. Enclosed
is a copy of the establishment's only reply.
" For the followimz reasons. the r e ~ l v of the s t o r e
manager is t o t a l l y unsatisfactory t o me:
1) There is no apology f o r the long delay.
2) There is no explanation for the long delay.
3) The language ' pleased be advised' is
demeaning.
" 4) There is inadequate monetary compensation.
5) Their refund offer seems t o t a l l y prompted by
- - - - pp - - the f a c t t h a t I contacted you.
6) I f they could not prepare my glasses, why
wasn't I told so s i x months ago?
" Last and l e a s t , t h e i r inadequate service is
demonstrated by the f a c t they did not have the proper
address on the envelop. I hope you pursue whatever
regulatory measures necessary t o insure t h a t t h e i r
-' service1 is not replicated f o r other customers.
Naturally, I would be receptive to attend a hearing on
t h i s matter. And, i f it i s your function to do so,
please advise on whatever means of legal redress I may
have. " ( ~ m ~ h a saidsd ed)
Board Action
The Board replied on January 8, 1977:
" In reply t o your inquiry a s t o what other action you
may take against the o p t i c a l establishment, ycu have
the same recourse you had o r i g i n a l l y - the court system.
" The refund to you was a voluntary a c t on the part of
the o p t i c a l establishment. a s t h i s Board does not have
authority t o force anv o p t i c a l comDanv to do t h i s . "
( Emphasis added)
No additional Board action was taken.
Comment
The Board attempted to resolve the complaint by obtaining reparation and
subsequently referred the complainant t o the court system. According to
available records, no i n v e s t i g a t i o n was conducted.
CASE I11
Board records include a l e t t e r dated April 24, 1978, from a consumer
regarding redress f o r a p a i r of unsatisfactory glasses:
" When I continued t o be very uncomfortable with my new
glasses, I had them checked by my doctor. I learned
that something was not q u i t e r i g h t and could cause the
discomfort.
" The glasses were... primarily ordered to wear on a
forthcoming vacation c r u i s e . Since I had t o leave
before they could make up a new p a i r , and they refused
t o refund my $ 147.53 - I f i n a l l y had to find outside
help to recover my money.
".. . ( ~ ) h i l e it has been resolved. I c e r t a i n l v would not
have gotten any money back without t h a t outside help.
" I f e e l t h a t your Office should be aware of t h i s . "
( ~ m ~ h a saidsd ed)
The o p t i c a l establishment apparently had refused t o refund the
complainant's money, and the complainant was compelled t o seek outside
assistance t o recover the money.
Board Action
The Board sent a l e t t e r t o the complainant dated May 9, 1978, indicating
the o p t i c a l establishment was under investigation. A Board i n v e s t i g a t i v e
report dated the same day indicated a dispensing o p t i c i a n l i c e n s e was
displayed i n the s t o r e and i d e n t i f i e d the licensee indicated on the
license by name and license number.
No f u r t h e r record of action or of f u r t h e r correspondence with the
complainant regarding t h i s case was found i n the Board's f i l e s .
Comment
The Board i n v e s t i g a t i o n apparently was concerned only with the question of
whether the dispenser was licensed. There is no record of an
i n v e s t i g a t i o n i n t o the quality of service provided.
CASE I V
In November 1979 the Board received a complaint involving a n a l l e g a t i o n of
visual harm from contact lenses and questionable follow- up service.
Eleven months l a t e r , the case had not been resolved by the Board.
Situation
On November 1, 1979, the Board received the following complaint:
" I purchased a p a i r of s o f t contact lenses... for
$ 94.50.. . . I wore them f o r 3 day[ s] but could not see
out of them. [ I] [ rleturned them f o r an exchange but
a f t e r one day, my eye became very inflamed [ and]
i r r i t a t e d and still could not see out of them.
" The owner would only refund half of the $ 94.50 ( 47.25)
unless I bought another p a i r from him...." He would
then apply the f u l l cost of the [$] 94.50 t o the [ new
contact lenses].
" He became angry i n a phone conversation October 18,
[ 19] 79 and said t h a t he had exchanged the lenses 3
times. This is not t r u e . They were adjusted - one
time. The second time they were not exchanged nor
corrected.. . .
" I have 2 other p a i r s of contact lenses and do not need
nor want the [ new contact] lenses. The chemicals used
t o cleanse the s o f t lenses, according t o [ store owner]
cost $ 15. This I w i l l pay although t h a t is extremely
high or i f the lenses are adjusted to f i t
c ~ m f o r t a b l [ ~."]
Board Action
Board records are sparse regarding t h i s complaint. They i n d i c a t e ,
however, t h a t t h e l i c e n s e e was contacted by the Board regarding his
involvement i n the complaint. On December 12, 1979, the Board received a
l e t t e r from the licensee s t a t i n g he had " l e f t the company almost two
months ago" and since he had l e f t there had been " no license[ d] optician
working f o r t h a t firm."
On December 19, 1979, the Board sent a l e t t e r t o its Attorney General
representative requesting advice a s t o what action should be taken on t h i s
and other cases. On January 22, 1980, the Attorney General representative
replied a s follows:
" The Office of the Attorney General provides l e g a l
advice t o State agencies. Your December 19 l e t t e r asks
that t h i s o f f i c e advise the Board as t o what a c t i o n t h e
Board should take regarding the above- referenced
licensee. It is the Board and not t h i s o f f i c e t h a t
should decide whether or not any action is warranted."
( Emphasis added)
On February 22, 1980, almost four months a f t e r they received the
complaint, the Board sent l e t t e r s to:
- The s t o r e ' s currently employed licensee, requesting attendance a t
the March 1980 Board meeting,
- The formerly employed licensee ( who apparently had f i l l e d the
contact lens prescription involved i n the complaint), requesting
a written reply t o the complaint and i n v i t i n g him to attend the
meeting,
- The c o m p l a i n a n t , i n v i t i n g h e r t o attend themeeting, and
- The owner/ manager of the optical s t o r e , requesting a written
reply to the complaint and i n v i t i n g him t o attend.
The Board received a reply from the formerly employed licensee on
February 26, 1980, i n which he stated he had resigned before the
complainant picked up the lenses a t t h e s t o r e , thus claiming he had no
r e s p o n s i b i l i t y for the complainant's alleged mistreatment.
On April 14, 1980, the Board:
- Sent by c e r t i f i e d mail t o the formerly employed licensee a
" Complaint and Notice of Hearing" which alleged t h a t the licensee
was i n v i o l a t i o n of A. R. S. $ 32- 1696.9 and specified:
" The prescription f o r glasses presented by
[ complainant] did not contain an approval from the
prescribing ophthalmologist f o r the f i t t i n g of contact
lenses. I- Licensee - 1 did not c a l l the ~ r e s c r i b i n a 4. -
ophthalmologist f o r approval t o f i t contact lenses,
p r i o r t o f i t t i n g contact lenses to [ complainant].
" Said conduct and p r a c t i c e . . . c o n s t i t u t e s a violation of
A. R. S. $ 32- 1696.9 which reads a s follows: ' To
fraudulently , dishonestly, i l l e g a l l y or
unprofessionally conduct t h e p r a c t i c e of optical
dispensing or engage i n any conduct i n such practice
which would tend to do harm t o the v i s u a l h e a l t h of the
public. ' " ( ~ m ~ h a saidsd ed)
- Sent a l e t t e r t o the c i t y prosecutor requesting " the i n i t i a t i o n
of prosecutorial proceedings" against the s t o r e manager/ owner.
.
On May 8, 1980, the Board held a formal hearing. Board minutes of t h a t
hearing s t a t e that:
- " A motion was made, seconded and carried t h a t the Board find
[ licensee] not i n v i o l a t i o n of the S t a t e s t a t u t e s , s i n c e t h e rule
requiring the approval [ i . e . , of the prescribing ophthalmologist
for the f i t t i n g of contact lenses] was adopted a f t e r the action
occurred. " ( ~ m ~ h a saidsd ed)
- The c i t y prosecutor had informed the Board t h a t he needed
additional information.
The Board apparently d i d n o t respond t o the c i t y prosecutor's request f o r
additional information.
On September 26, 1980, the c i t y prosecutor s e n t t h e following memorandum
t o the Board:
" This is t o advise t h a t on September 26, 1980, the
complaints i n the named cases were dismissed upon
motion of the defendants. The substance of the defense
motion was t h a t the s i x month s t a t u t e of l i m i t a t i o n s
applicable to petty offenses had expired p r i o r t o the
June 25, 1980, f i l i n g of the complaints.
" In our conversation of September 22, 1980, you related
t o me t h a t the o p t i c a l establishment may still be i n
violation of t h e l i c e n s i n g provisions. I f t h i s is the
case, please f e e l f r e e t o submit the matter t o t h i s
o f f i c e f o r consideration of the f i l i n g of new criminal
complaints. " ( ~ m ~ h a saidsd ed)
The Board took no f u r t h e r a c t i o n regarding the l i c e n s u r e i s s u e .
Comment
The o r i g i n a l consumer complaint contained two issues: 1) unacceptable
contact lenses resulting i n possible visual harm, and 2) the p o s s i b i l i t y
of fraudulent action on the part of the store manager/ owner. The f i n a l
r e s u l t was t h a t no d i s c i p l i n a r y action was taken by the Board i n that:
- the Board did not investigate adequately allegations against the
formerly employed licensee and did not impose any d i s c i p l i n e , and
- The Board did not follow up on possible violations of the
licensing law.
Ultimately, the consumer complaint was ignored.
Lack of Substantial Disciplinary
Action on Board- initiated Complaints
A s of December 31, 1980, the most severe penalty imposed by the Board
regarding Board- initiated complaints was a f i n e of $ 56 f o r unlicensed
a c t i v i t y . The remainder of d i s c i p l i n a r y a c t i o n s on Board- initiated
complaints consisted of cease and d e s i s t l e t t e r s regarding advertising and
unlicensed a c t i v i t y . Furthermore, our review revealed t h a t a potential
for f i n e s existed i n a t l e a s t three* additional s i t u a t i o n s , but f i n e s were
not imposed by the Board.
A. R. S. $ 32- 1697 s t a t e s t h a t practicing o p t i c a l dispensing without a
license is a petty offense. According t o State law, conviction of a petty
offense incurs a f i n e of not more than $ 300.
In our review of 29 complaints** regarding unlicensed a c t i v i t y i n which
the p o t e n t i a l f o r f i n e apparently was present under A. R. S. $ 32- 1697, four
such cases appear to have been substantiated. However, i n only one case
was a f i n e imposed.
* A fourth p o t e n t i a l f o r f i n e e x i s t s , but as of June 30, 1981, action
by the Board was pending.
** This figure includes complaints originated through a consumer
regarding q u a l i t y of services, but disposed of as a Board- initiated
complaint regarding unlicensed a c t i v i t y .
The Board Has Not Investigated
Numerous Com~ laints S u f f i c i e n t l y
Our review revealed t h a t the Board has f a i l e d t o investigate adequately
t h e v a s t majority of complaints received from 1976 through 1980. Of 51
consumer complaints, the Board did not conduct any prehearing
investigations regarding t h e q u a l i t y of service received by a consumer.
Furthermore, hearing procedures were used 45 percent of the time f o r
Board- initiated complaints but only 24 percent of the time f o r consumer
complaints.
Infrequent Investigations Are Inadequate
The Board has used a process f o r i n v e s t i g a t i n g consumer complaints t h a t is
inadequate to determine i f incompetency or unprofessional conduct was
involved .
The Legislative Council, i n a memorandum dated July 20, 1979, outlined a
" proper investigation" a s follows:*
. . a proper i n v e s t i g a t i o n would seem t o include, a s a
. nimum, the following procedures :
Interviewing the complainant, the [ licensee] 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 of
the complaint.
b. Verifying any previous complaint against the
[ licensee] and t h e d i s p o s i t i o n of the complaint.
c. Checking f o r any previous complaints by the
complainant.
d. I d e n t i f y i n g t h e generally accepted practice i n the
profession f o r the a c t which is the subject of the
complaint.
" Finally, the Arizona Revised S t a t u t e s $ 41- 1010,
r e l a t i n g to evidence a t hearings i n a contested case,
o f f e r s some i n s i g h t i n t o the kind of evidence which
should be gathered i n an investigation: it must be
' s u b s t a n t i a l , r e l i a b l e and probative'."
* While t h i s memorandum d e a l t s p e c i f i c a l l y with the Board of Optometry,
Legislative Council s t a f f stated on May 25, 1981, t h a t t h e s e c t i o n
regarding elements of a proper i n v e s t i g a t i o n are so general a s t o
apply to a l l Arizona regulatory boards.
Our review of the 51 consumer complaints the Board received from
January 1, 1976, t o December 31, 1980, revealed t h a t no complaint was
s u f f i c i e n t l y investigated t o s a t i s f y Legislative Council c r i t e r i a . A l l 51
consumer complaints were resolved by a mere' review of written
correspondence from the complainant and the optician or p r a c t i t i o n e r
involved. There is no documentation of: 1) interviews of 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 licensee and
t h e i r d i s p o s i t i o n s , 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 on written correspondence provided by the
complainant and the licensee does not appear to s a t i s f y the requirement
t h a t evidence be " substantial, r e l i a b l e and probative."
Recently the Board was admonished by the Attorney General t o investigate
and dispose of complaints adequately and completely. A s previously noted
on page 43, i n a memorandum dated November 28, 1979, regarding Board
actions on three d i f f e r e n t complaints, the Assistant Attorney General
stated:
" The method used to resolve t h i s matter is
inappropriate and does not meet the obligation of the
Board of Dispensing Opticians to p r o t e c t t h e public
from unqualified p r a c t i t i o n e r s . The matter should not
be disposed of merely because the p a r t i e s have reached
a mutual agreement: it is necessarv t o investigate a l l
complaints i n order to determine i f a violation of the
Board.. . laws has occurred and the Board.. . is oblig- a ted
t o take appropriate action i f and when a v i o l a t i o n of
its laws is discovered regardless of any settlement of
the matter between the parties." (~ mphasis added)
CONCLUSION
The lack of d i s c i p l i n a r y a c t i o n imposed by the Board with regard to
consumer complaints and Board- initiated complaints r a i s e s serious
questions regarding the Board's a b i l i t y t o e f f e c t i v e l y regulate optical
dispensing. Our review of the Board's disposition of complaints received
during 1976 through 1980 revealed that the Board has not:
- Investigated numerous complaints s u f f i c i e n t l y , and
- Imposed s u f f i c i e n t l y severe penalties.
RECOMMENDATION
The performance of the Board of Dispensing Opticians with regard to
investigating and resolving complaints needs to be improved significantly
if the Board is to . continue performing its complaint- handling functions.
If regulation is continued, it is recommended that consideration be given
to the following:
1. Arizona Revised Statutes, Title 32, chapter 15.1, be amended as
recommended on page 66.
2. The Board of Dispensing Opticians establish specific procedures
for the investigation and resolution of complaints. These
procedures should meet the standards of a minimum investigation
cited by the Legislative Council.
FINDING I V
STATUTORY CHANGES ARE NEEDED IF THE BOARD OF DISPENSING OPTICIANS IS TO BE
CONTINUED.
The Board of Dispensing Opticians' a b i l i t y to regulate the dispensing of
optical goods and services is s i g n i f i c a n t l y impaired i n that:
- Taken singly or together, t h e l a c k of penalty provisions and the
presence of f i v e occupational categories does not allow for
effective regulation, and
- Since there is no provision f o r t h e r e g u l a t i o n of o p t i c a l
establishments, many complaints concerning service and product
quality cannot be resolved effectively.
I f the Board is t o be continued, s t a t u t o r y changes are needed to enhance
its a b i l i t y t o regulate the dispensing of o p t i c a l goods and services.
Few Penaltv Provisions and
Many Occupational Categories
Our review of the s t a t u t e s regulating dispensing opticians revealed
serious deficiencies i n that:
- Considerable overlap e x i s t s among the f i v e occupational
categories mentioned i n the s t a t u t e s ,
- Not a l l individuals i n three of the f i v e categories are subject
t o s t a t u t o r y regulation, and
- There are few penalty provisions f o r v i o l a t i o n s of applicable
State laws.
Arizona law regarding dispensing opticians s p e c i f i c a l l y i d e n t i f i e s three
groups of persons involved i n the occupational category: 1) licensed
dispensing o p t i c i a n s , 2 ) r e g i s t e r e d apprentice dispensing opticians and
3) persons who may dispense o p t i c a l goods but who work d i r e c t l y under the
supervision of a licensed physician, optometrist or dispensing optician.
In addition, Arizona law i n d i r e c t l y i d e n t i f i e s two other groups:
- 1) employers of the other groups, and 2) supervisors of apprentice
dispensing opticians and unlicensed persons.
A cornparision of the: 1) a c t i v i t i e s allowed and p a r t i c i p a t e d i n by each
group, 2) extent of Board j u r i s d i c t i o n concerning these groups, and
3) penalties t h a t can be imposed on each group reveals overlap of
a c t i v i t i e s , uneven j u r i s d i c t i o n and weak Board enforcement powers.
A c t i v i t i e s Allowed and Participated
i n by Persons Involved i n Opticianry
According t o Arizona law licensed dispensing opticians and registered
apprentices are d i r e c t l y within the purview of the Board. A. R. S. $ 32- 1681
subsection A s t a t e s , i n part:
" No person s h a l l practice as a dispensing optician i n
t h i s s t a t e without having a valid and subsisting
license..."
Further, A. R. S. 532- 1682 subsection E s t a t e s , i n part:
" The board s h a l l require t h a t any person desiring to
work as an apprentice dispensing o p t i c i a n o b t a i n a
c e r t i f i c a t e of registration."
The Board is empowered through A. R. S. $ 72- 1673 to enforce the law:
"... to h e l p a s s u r e the competency of dispensing
opticians and prevent conduct on t h e i r part which would
tend to do harm t o t h e v i s u a l health of the public."
Further, A. R. S. 932- 1696 delineates unlawful a c t s over which the Board has
j u r i s d i c t i o n .
Finally, the law s p e c i f i c a l l y exempts from Board j u r i s d i c t i o n a person
who: 1) works under the d i r e c t supervision of, and exclusively f o r , a
licensed physician, optometrist or dispensing optician, and 2) does not
represent himself to the public as a licensed or apprentice dispensing
optician.
A s demonstrated i n a March 1981 survey conducted by the Office of the
Auditor General, licensed dispensing opticians, apprentices and supervised
but unlicensed persons perform s u b s t a n t i a l l y the same functions. Table 11
compares the a c t i v i t i e s of t h e t h r e e groups.
TABLE 11
COMPARISON OF FUNCTIONS PERFORMED BY SURVEYED* LICENSED
DISPENSING OPTICIANS, APPRENTICE DISPENSING
OPTICIANS AND UNLICENSED DISPENSERS I N ARIZONA
Activity
F i t t i n g
eyeglasses
F i t t i n g
contact
lenses
F i t t i n g
a r t i f i c a l
eyes
Neut r a l i -
zation****
Lens grinding
Licensed Dispensing
O ~ t i c i a n s
Registered
A ~ ~ r e n t i c e s * "
Percentage
Number of Total***
Percentage
Number of Total***
Supervised but
Unlicensed
Optical Dispensers*"
Percentage
Number of Total***
5 9 89.4%
* A s reported by licensees.
** Percentage of licensees who responded t o question regarding duties
of those they supervise.
*** Totals exceed 100 percent because individuals i n each group perform
more than one function.
**** Neutralization: Determination of prescription readings from lenses
instead of from doctor's prescription.
A s demonstrated i n Table 11, functions performed by licensed and
registered apprentice dispensing opticians a l s o are performed by
supervised but unlicensed o p t i c a l dispensers who are not subject t o Board
regulation. It should be noted t h a t the two most common a c t i v i t i e s for
the unregulated group, f i t t i n g eyeglasses and n e u t r a l i z a t i o n , also are the
two most common a c t i v i t i e s f o r the two groups regulated by the Board.
Further, it is notable t h a t under existing S t a t e laws the employers of
licensed dispensing opticians, apprentice dispensing opticians and
unlicensed o p t i c a l dispensers are: 1) not subject to a l l statutory
provisions regarding dispensing o p t i c i a n r y u n l e s s also licensed a s a
dispensing optician and 2) defined only i n terms of what they cannot do
rather than what they may or must do.
For example, according to A. R. S. $ 32- 1696 paragraphs 3 and 9, it is
unlawful f o r an employer t o
"... hire, procure, or induce a person not licensed t o
r a c t i c e as a dispensing optician, except as provided f n 692- 1682, subsection E ( regarding apprentices) , I' or
"... fraudulently, dishonestly, i l l e g a l l y or
unprofessionally conduct the practice of o p t i c a l
dispensing or engage i n conduct i n such practice which
would tend to do harm to t h e v i s u a l health of the
public. " ( ~ m ~ h a saidsd ed)
Finally, S t a t e law does not s p e c i f y t h e r e s p o n s i b i l i t i e s of a person who
supervises dispensing opticians, apprentice opticians and optical
dispensers. Instead, it s p e c i f i e s only t h a t an apprentice dispensing
optician or unlicensed o p t i c a l dispenser must work under the i n s t r u c t i o n
and/ or d i r e c t supervision of a dispensing optician, physician or
optometrist.
Legislative Council, i n a memorandum dated November 24, 1980," stated t h a t
t h i s lack of a supervisor- responsibility d e f i n i t i o n is unique i n Arizona
law.
* Appendix V I contains t h i s memorandum.
5 8
"... In contrast with s t a t u t e s providing for
c e r t i f i c a t i o n of apprentices or i n t e r n s i n other
professions, the dispensing optician s t a t u t e s do not
expressly mandate any duties on the supervising
~ r a c t i t i o n e r . " ( ~ m ~ h a saidsd ed)
A s with employers, only supervisors who are licensed dispensing opticians
are subject to Board jurisdiction. Physicians or optometrists who
- supervise dispensing o p t i c i a n s , apprentice dispensing opticians and
o p t i c a l dispensers are s p e c i f i c a l l y exempted by A. R. S. $ 32- 1691
paragraph 1 from the dispensing opticianry law and regulation by the Board.
Board J u r i s d i c t i o n Is Uneven
among Optical P r a c t i t i o n e r s and
Enforcement Provisions Are Weak
The dispensing optician law is not clear regarding penalties t o be
imposed, even a g a i n s t l i c e n s e e s within its d i r e c t j u r i s d i c t i o n , for
unlawful acts.
Legislative Council, i n a memorandum dated November 24, 1980," stated:
" The l e g i s l a t i v e i n t e n t of A. R. S. section 32- 1696 is
ambiguous i n t h a t it declares c e r t a i n a c t s t o be
' unlawful' but does not c l a s s i f y the a c t s a s crimes or
prescribe a penalty. Since A. R. S. section 32- 1693
authorizes the board t o deny, suspend or revoke the
license of any person ' who v i o l a t e s any provision of
t h i s chapter' the board could deny, suspend or revoke
the license of e i t h e r an apprentice or a licensed
dispensing optician who committed such a c t s . You may
wish t o recommend t h a t A. R. S. section 32- 1696 be
amended to e i t h e r provide a criminal c l a s s i f i c a t i o n o r
be rewritten t o declare that the prohibited a c t s are
grounds for denial, suspension or revocation of a
license. " (~ mphasis added)
It should be noted t h a t A. R. S. $ 13- 602 subsection C prescribes unlawful
a c t s which are not designated a s to criminal s t a t u s as petty offenses.
* Appendix V I contains t h i s memorandum.
The s t a t u t e reads:
" Any offense defined outside t h i s t i t l e without e i t h e r
designation a s a felony or misdemeanor or s p e c i f i c a t i o n
of the c l a s s i f i c a t i o n or the penalty is a petty
offense."
According to a Legislative Council opinion dated May 21, 1981,"
he he criminal penalties prescribed by the l e g i s l a t u r e
for violations of A. R. S. T i t l e 32, Chapter 15.1
( dispensing opticians) a r e the l e a s t severe of those
found i n the remainder of T i t l e 32. A b r i e f survey of
enabling s t a t u t e s of o t h e r s e l e c t e d T i t l e 32 boards and
commissions indicates t h a t the great majority ( 22) have
misdemeanor c l a s s i f i c a t i o n s while 5 have a felony
c l a s s i f i c a t i o n o r a combination felony- misdemeanor
c l a s s i f i c a t i o n s . " (~ mphasis added)
Apprentice dispensing opticians also are within the d i r e c t purview of the
Board. However, the only requirements for such persons are:
1) r e g i s t r a t i o n with the Board, and 2) d i r e c t supervision of t h e i r
o p t i c a l dispensing a c t i v i t i e s by a physician, optometrist or licensed
dispensing optician.
S t a t e law does not specify whether obtaining the d i r e c t supervision is a
r e s p o n s i b i l i t y of the supervisor or of the apprentice dispensing
optician. Further, the Board cannot impose penalties d i r e c t l y against the
apprentice dispensing optician regarding quality of service provided, and
it is unclear what penalties could be imposed against a supervising
licensed dispensing optician f o r violations committed by an apprentice.
Similarly with unlicensed o p t i c a l dispensers, the Board cannot regulate
t h e i r a c t i v i t i e s or impose penalties i f required supervision is provided
and the unlicensed persons do not hold themselves out t o the public as
licensed or registered apprentice dispensing opticians. However, i f an
unlicensed person represented himself as a licensed person, A. R. S.
$ 32- 1697 would apply:
" The practice of o p t i c a l dispensing without a valid and
s u b s i s t i n g l i c e n s e is a petty offense."
* Appendix VII contains t h i s memorandum.
The Board has the a u t h o r i t y , i n such cases, t o r e f e r v i o l a t i o n s t o the
court system for t r i a l and imposition of a f i n e not t o exceed $ 300.
A s i n the case of an apprentice, it is unclear as to what penalties could
be imposed against a supervisory licensed dispensing optician f o r
s t a t u t o r y violations committed by an unlicensed person. Legislative
Council, i n a memorandum dated November 24, 1980," explained the statutory
deficiency:
" There is no express s t a t u t o r y a u t h o r i t y to suspend or
revoke t h e l i c e n s e of a supervisor of an unlicensed
person ...."
"... under paragraph 9 of A. R. S. $ 32- 1696 the board
could suspend or revoke the l i c e n s e of a person who
' fraudulently , dishonestly, i l l e g a l l y or
unprofessionally' conducts t h e p r a c t i c e of optical
dispensing or engages i n ' any conduct i n such practice
which would tend t o do harm t o t h e v i s u a l h e a l t h of the
public' ...
" We cannot say under what circumstances, if any, a
supervisor's conduct would f a l l within the prohibited
conduct described i n paragraph 9." ( Emphasis added)
Ramifications of Unclear
Enforcement Authority
Our review of complaints received by the Board revealed t h a t the problem
of j u r i s d i c t i o n over supervised persons has a r i s e n i n numerous cases,
constraining the Board's a b i l i t y t o act. Of a t o t a l 45 Board- initialed
complaints during the five- year period ended December 31, 1980, the lack
of supervision was a problem i n 14 cases ( 31 percent). Further, of these
14 cases, the only d e f i n i t i v e disposition was voluntary compliance e i t h e r
by the o p t i c a l establishment or by t h e l i c e n s e e f o r four of the complaints.
* Appendix V I contains t h i s memorandum.
61
It should be noted t h a t according t o a Legislative Council memorandum
dated August 10, 1981," no other s e t of Arizona s t a t u t e s regarding
occupational regulation provided an exemption for unlicensed persons when
it includes provisions f o r apprentices.
According to the memorandum, four other s t a t u t e s regarding occupational
regulation contain provisions f o r apprentices or i n t e r n s : barbers,
embalmers, pharmacists and polygraph examiners. I n each of these
s t a t u t e s , it is unlawful f o r anyone t o engage i n t h e s p e c i f i e d occupation
unless he is a licensee or a registered apprentice or intern.
Regarding employers of persons involved i n dispensing opticianry,
according to Legislative Council i n a November 24, 1980, memorandum*" the
Board could suspend or revoke the dispensing o p t i c i a n l i c e n s e of an
employer for c e r t a i n a c t i v i t i e s :
" Under A. R. S. section 32- 1696, paragraph 3, the board
may suspend or revoke the license of an employer who
h i r e s an unlicensed person t o practice as a dispensing
optician, except i f the unlicensed person is a
registered apprentice practicing outside the scope of
h i s authorized practice....
.... A s the negligent hiring of persons who are
incompetent would c l e a r l y be conduct which ' would tend
to do harm t o the v i s u a l h e a l t h of the public' the
board would have authority t o revoke t h a t employer's
license."
However, i f the employer is not a licensee it is doubtful t h a t the Board
would have j u r i s d i c t i o n a l authority.
* Appendix V I I I contains t h i s memorandum.
** Appendix V I contains t h i s memorandum.
Therefore, whether or not the Board could take d i r e c t action i n the matter
of a consumer complaint is dependent upon: 1) which group allowed to
practice i n the o p t i c a l dispensing f i e l d is involved, 2) whether or not a
person is subject to supervision by a Board licensee, and 3) whether the
a c t i v i t y represented fraud and misrepresentation or was a quality of
service complaint. Depending on the circumstances, the Board may or may
not be empowered to a c t . I n any case, Board powers are unclear and weaker
than f o r most of Arizona's occupational regulatory boards.
The following case i l l u s t r a t e s the problem of unclear regulatory authority:
Board records include a l e t t e r dated January 19, 1978, from a consumer
regarding redress f o r a p a i r of unsatisfactory glasses and quality of
service:
" In November 1977 I purchased a p a i r of glasses from
the... optical shop. Cost, $ 98.80.
F i r s t of a l l , . . . d i d n o t g i v e me the t i n t e d lenses which
I had ordered, but gave me c l e a r glass. Secondly, he
was e i t h e r unable or unwilling to properly adjust
them. But worst of a l l is t h a t he has been very rude
to me; and on January 17, 1978, he became very angry
and screamed and yelled a t me, and ordered me out of
h i s shop....
My husband and I together spent over $ 300.00 f o r
glasses ( i n 1977) i n h i s shop and I f e e l t h a t we
deserve sympathetic and courteous service...."
Board Action
Upon i n v e s t i g a t i o n , t h e Board discovered t h a t the individual who dispensed
the complainant's eyeglasses claimed t o be a licensed dispensing optician
when, i n f a c t , he was unlicensed. The Board pursued the matter through
the county prosecutor's o f f i c e , and on June 26, 1978, the unlicensed
individual was fined $ 56. The Board then dismissed the case.
On August 4, 1978, the Board received a l e t t e r from the complainant
expressing concern t h a t the unlicensed individual was " s t i l l working as a
dispensing optician." I n a l e t t e r dated August 21, 1978, the Board
replied:
" In response to your o r i g i n a l complaint of January 19,
1978, regarding M r . , the S t a t e Board of
Dispensing Opticians i n i t i a t e d an i n v e s t i g a t i o n t o
determine whether or not M r . was holding
himself out t o the general public as a dispensing
optician or whether he was c l e a r l y operating under the
d i r e c t supervision of a licensed physician,
ophthalmologist, optometrist or duly licensed
dispensing optician.
" The i n v e s t i g a t i o n showed t h a t he was indeed holding
himself out to be a licensed dispensing optician, for
which he was duly fined.
" Under the Arizona Dispensing Optician Act and Rules
and Regulations, A r t i c l e 3, S t a t u t e 32- 1691,
' Exemptions of persons, apprentices and sales
( r e : l i c e n s i n g ) ' paragraph 2, M r . is not
i l l e g a l l y employed and 1 quote: ' Any person working - -
under the - d i r e c t supervision of a physician,
optometrist of dispensing optician duly licensed to
practice under the laws of t h i s s t a t e , so long as the
apprentice is working exclusively f o r the licensed
physician, optometrist or dispensing optician and does
not hold himself out t o the public generally a s a
dispensing optician. "
Comment
The Board pursued the consumer complaint solely on the basis of whether or
n o t t h e i n d i v i d u a l dispensing the eyeglasses possessed a license. The
Board deemed the q u a l i t y of service complaint out of its j u r i s d i c t i o n
because t h e i n d i v i d u a l dispenser was unlicensed and, therefore, i f
appropriately supervised, exempt from the s t a t u t o r y provisions. This
i l l u s t r a t e s how the lack of s t a t u t o r y c l a r i t y and authority impairs the
Board's a b i l i t y to resolve consumer complaints.
No Provision for Regulation
of O ~ t i c a lE stablishments
Our review of the dispensing opticians law revealed t h a t , s i n c e t h e r e is
no provision f o r regulation of o p t i c a l establishments, many complaints
concerning product quality and service cannot be resolved e f f e c t i v e l y i n
that:
- Many f a c t o r s affecting product quality are beyond t h e c o n t r o l of
the licensed dispensing optician, especially i f the licensee is
an employee of a large organization, and
- P o l i c i e s regarding several aspects of service ( f o r example,
refunds or exchanges regarding defective products and t h e l e n g t h
of time to receive products from t h e l a b o r a t o r i e s which actually
grind the lenses) are controlled by the management of the o p t i c a l
establishment. Thus, these p o l i c i e s may be beyond the control of
the licensed dispensing optician and, therefore, beyond the scope
of Board regulation.
Our review of complaints submitted during the f ive- year period ended
December 31, 1980, revealed that:
1. Of a t o t a l of 95 complaints ( 50* consumer and 45 Board- initiated
complaints) f o r which appropriate records were available, 71
percent were i n i t i a t e d against o p t i c a l establishments while only
29 percent were i n i t i a t e d against individuals.
2. Of the 50" consumer complaints f o r which appropriate records were
a v a i l a b l e , 84 percent were i n i t i a t e d a g a i n s t o p t i c a l
establishments, while only 16 percent were i n i t i a t e d against
individuals.
Thus, it appears t h a t t h e o b j e c t of a complaint is more l i k e l y t o be an
optical establishment than an individual licensee.
* The Board did not maintain appropriate records f o r one consumer
complaint. Thus, information f o r t h i s analysis was not available.
It should be noted t h a t we i d e n t i f i e d three complaints against the same
o p t i c a l company t h a t alleged visual harm. ( see page 15) Each of the
complaints involved problems with the laboratory employed by t h e o p t i c a l
company. During the five- year period ended December 31, 1980, the same
o p t i c a l company accumulated 19 complaints, eleven of which involved
excessive time i n providing t h e o p t i c a l devices ordered. A t an informal
hearing held by the Board on March 13, 1981, a supervisory employee of the
optical company s t a t e d t h a t an out- of- State laboratory employed by the
optical company was the cause of the delays. Thus, the majority of
complaints d i r e c t e d a g a i n s t t h e o p t i c a l company i n question were beyond
the purview of the Board.
C ONCLUSI ON
The Board is s i g n i f i c a n t l y impaired i n its a b i l i t y to regulate the
dispensing of optical goods and services, i n that:
- Inadequate penalty provisions and the presence of many
occupational categories impede effective regulation, and
- There is no s t a t u t o r y provision f o r the regulation of o p t i c a l
establishments.
REC OMMENDATI OM
I f regulation is continued i n its present form and level, it is