A Performance audit of the Arizona Board of Optometry

              PERFORMANCE AUDIT
ARIZONA BOARD OF OPTOMETRY
A Report to the Arizona Legislature
By the Auditor General
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
March 26, 1984
Members of the Arizona Legi sl ature
The Honorable Bruce Babbitt, Governor
Dr. George M. Sanchez, President
Arizona Board of Optometry
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Arizona Board of Optometry. T h i s report i s i n response to an
April 27, 1983 resolution of the Joint Legislative Oversight Commi ttee.
The performance audit was conducted as a part of the Sunset Review set
forth i n A. R. S. § § 41- 2351 through 41 - 2379.
This performance audit report on the Arizona Board of Optometry i s
submitted to the Arizona Legislature for use i n determining whether to
continue the Board beyond i t s scheduled termination date of July 1, 1985.
The report eval uates the Board's effectiveness i n regulating key aspects
of optometry practice i n Arizona.
My staff and I will be pleased to discuss or clarify items i n the repor" t.
Respectfully submitted,
@ 3 L*
ou as R. Norton
~ u dtio r General
Staff: Will iarn Thomson
Mark Fleming
Gl ori a Gl over
Cheryl Fruchter
Stuart Go1 dstei n
1 1 1 WEST MONROE SUITE 600 PHOENIX. ARIZONA 85003 ( 602) 255- 4385
-
The Office of the Auditor General has conducted a performance audit o f the
Arizona Board o f Optometry i n response t o an A p r i l 27, 1983, resolution o f
tile J o i n t Legislative Oversight Committee. This performance audit was
conducted as part o f the Sunset Review set f o r t h i n Arizona Revised
Statutes ( A. R. S. ) SS41- 2351 through 41 - 2379.
The Arizona Board o f Optometry has the primary r e s p o n s i b i l i t y f o r
protecting the visual health o f the public by regulating the practice o f
optometry. The Board has s i x members, consisting o f four practicing
optometrists, one 1 icensed physician and one layperson, each serving
four- year terms. The duties o f the Board include evaluating appl ications
f o r examination and 1 icensure, administering examinations, issuing
1 icenses t o qua1 i f i e d appl icants, issuing c e r t i f i c a t e s authorizing the use
o f diagnostic pharmaceutical agents, enacting rules and regulations and
resol ving complaints against 1 icensed optometrists.
Deficiencies i n the Board o f Optometry Licensing
Examination Ray Prevent the Board from Adequately
Assessins Competency ( see paqes 13- 22 )
The Board o f Optometry's licensing examination does not comply with
national ly recognized examination standards. The overall content o f the
three- part exam i s inadequate and may not measure optonetric s k i l l . I n
addition, procedures f o r devel oping and administering the i n d i v i d u a l p a r t s
- w r i t t e n , pathology s l i d e and patient examination - have caused the Board
t o i n c o r r e c t l y judge appl i cant competence.
The optometry exam has not been developed i n accordance with national
standards. Overall exam content i s not d i r e c t l y related t o s k i l l levels
required f o r competent optometri c practice. The Board has not determined
the s k i l l s necessary f o r the practice o f optometry or standardized
examination d i f f i c u l t y from year t o year.
The Board has not correctly followed passlfail procedures for i t s written
exam because the Board misinterpreted the statutes. As a result, i t has
licensed 28 applicants incorrectly since 1980. The Board has also
unfairly weighted scores on the other two exam sections for applicants
submi tti ng passing scores on tkle national written exam. Correcting either
content or procedural problems on the Board's written examination is
unnecessary since use of the available national exam would correct the
probl ems.
Procedures for the practical examination sections are i nadequate. The
Board's pathology examination procedures do not ensure the qual ity of t e s t
items. As a result, i n 1983 fifteen applicants who i n i t i a l l y failed kvere
given licenses when the Board discovered that some slides were of poor
qual i ty. Inadequate grading and administrative procedures may a1 so bias
results of the Board's patient examination. In 1983, 30 percent of
patient examination scores were calculated incorrectly, resulting i n the
1 icensure of one applicant who should have failed.
The Board shoul d revise examination content, weighting and di ff icul ty w i t h
assistance from an examining expert. Further, the Legislature shoul d
consider amending the optometry statutes to require a71 applicants to take
the national exam rather than a Board written examination. The Board
needs to improve the selection of pathology slides and improve the review
and administration of the pathology sl ide examination. The Board should
a1 so improve the admini stration and grading of patient examinations to
reduce errors and bias.
Improvements Have Been Made i n the Hand1 ing of
Consumer Compl ai nts. However, Probl ems Exist i n
the Processins of Lesal Kotices ( see Dases 23- 28)
The Arizona Board of Optometry has made improvements i n the processing of
compl a i n t s , b u t adai tional improvements are necessary. Probl ens
identified ir: a previous performance audit report, such as inadequate
investigations and improper cl osi ng of compl aints have been corrected.
However, excessive time i s spent drafting and approving Board orders and
hearing notices. These delays have caused challenges to the legality of
Board orders. Finally, statutory requirements mandating informal
interviews delay the resolution of cases because the Board cannot proceed
directly to formal hearing i n cases w i t h overwhelming evidence of
violation.
The Eoard should monitor the preparation and approval of Board legal
orders and take steps to expedite the delivery of orders when necessary.
The Legislature shoul d consider amending A. R. S. § 32- 1744.6 to a1 low the
Board to bypass the informal interview and proceed directly to formal
hearing when warranted by avai 7 able evidence.
The Board of Optometry Lacks Adequate
Rules and Regulations ( see pages 29- 33)
The Board's rules and regulations do not adequately reflect i t s current
statutes. The Board has not promulgated needed regulations because it has
not prepared the required fiscal impact statements. As a. result, the
Board cannot monitor the use of diagnostic pharmaceutical agents, has
inefficient procedures for approving continuing education credits and i s
subject to legal challenge if i t attempts to enforce rules not consistent
w i t h federal and state law. The Board should seek clarification of
inforniation needed for preparing the fiscal impact statement.
The - Statute Requiring Insurance Companies to
Report Ma1 practice Cl aicis Ayai nst Optometri s t s
i s not Enforceable ( see page 35- 31)
Although the optometry statutes require insurance companies to report any
ma1 practice claim filed or settlements paid for any 1 icensed optometrist
i n Arizona, the statutes do riot clearly assign enforcement responsi bil i ty
or direct the Eoard i n using the information. A similar malpractice
reporting requi rement i n ttre Board of Nedical Examiner ' s ( BOMEX) statutes
was changed by the Legislature i n 1982 to give the Department of Insurance
cl ear authority to penal ize insurance companies f a i l ing to report. The
statutory changes also require BOMEX to review these reports to determine
if licensees have violated statutes or rules. The Legislature should make
similar statutory changes i n optometry law to ensure that the Board of
Optometry receives and processes this information i n regulating
optometrists.
TABLE OF CONTENTS
Page
INTRODUCTION AND BACKGROUND. . . . . . . . . . . . . . . . . . . . . 1
SUNSETFACTORS..... . . . . . . . . . . . . . . . . . . . . . .
FINDING I: DEFICIENCIES IN THE BOARD OF OPTOMETRY LICENSING
EXWINATION MAY PREVENT THE BOARD FROM ADEQUATELY ASSESSING
COMPETENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Exam Content May Not Relate to Ski1 1 Levels Required For
Competent Optometric Practice, . . . . . . . . . . . . . . . . 13
Additional Written Examination Deficiencies Coul d be
Corrected by an NBEO Examination Requirement . . . . . . . . . 15
Path01 ogy Examination Uses Poor Qua1 i ty Sl ides . . . . . . . . . 18
Patient Exam Procedures Were Inadequate. . . . . . . . . . . . . 19
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . 21
FINDING 11: IMPROVEkIENTS HAVE BEEN MADE IN THE HAFJDLIE! G OF CONSUMER
CNOOPTIIILCAEISN.. T S.. H. OW. E. VE. R, . PR. OB. LE. MS. E. X. IST. I. N . TH. E . PR. OC. ES. SIN. G. O. F . LE. GA. L . 23
The Board Has Improved I t s Hand1 ing of Complaints. . . . . . . . 23
Problems In Processing Legal Orders. . . . . . . . . . . . . . . 24
Informal Interview Requirement Del ays Compl aint Resol uti on . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . 28
FINDING 111: THE BOARD OF OPTOMETRY LACKS ADEQUATE RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
New Rules and Regulations are Necessary. . . . . . . . . . . . . 29
The Board has not Prepared the Required Fiscal
Impact Statements. . . . . . . . . . . . . . . . . . . . . . . 32
Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . 33
Page
FINDING I V : THE STATUTE REQUIRING INSURANCE COMPANIES TO REPCRT
MALPRACTICE CLAIMS AGAINST OPTOMETRISTS IS NOT ENFORCEABLE . . . 35
Malpractice Reporting Statutes Are Not Clear. . . . . . . . . . 35
The Legi s l ature Addressed Simi 1 ar Probl em i n
B O M E X S t a t u t e s . . . . . . . . . . . . . . . . . . . . . . . 36
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . 37
OTHER PERTINENT INFORMATION. . . . a . . . . . . . . . . . . . . . . 39
AGENCY RESPONSE. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
APPEIJDIX
L e g i s l a t i v e Council Opinion on Optometry Examinations. . . . . . A- 1
LIST OF TABLES
Page
TABLE 1 - Examination And Licensing Activity of Board of
Optometry for Fiscal Years 1979- 60 Through 1984- 85. . . 2
TAGLE 2 - Current Fees Charged by the Board of Optomtery. . . . . 3
TABLE 3 - Actual and Estimated Fee Receipts, Appropriations
and Expenditures by the Board of Optometry during
Fiscal Years 1981 - 82 and 1983- 84. . . . . . . . . . 5
TABLE 4 - Licensing Examination S t a t i s t i c s for 1980- 83. . . . . . 16
INTRODUCTION ANC BACKGROUND
The Office of the Auditor General has conducted a performance audit of the
Arizona Board of Optometry in response t o an April 27, 1983, resolution of
the Joint Legisl ati ve Oversi ght Commi ttee. This performance audit was
conducted as part of the Sunset Review set forth in Arizona Revised
Statutes ( A. R. S. ) $ 541 - 2351 through 41 - 2379.
Hi story of Optometry
Spectacl e makers, or opticians, began grinding lenses and fitting and
selling spectacles, often in small shops or jewelry stores, in America as
early as the 1700s. In the late 1800s " refracting opticians" began to
conduct eye examinations to assist customers in the selection of
appropriate spectacles. The f i r s t proposed 1 egis1 ation to define
optometry in the United States was considered i n New York. In 1901
hlichigan enacteci the f i r s t optometry law and by 1925 every state had
passed laws defining and regulating the profession of optometry.
Today optometrists provide primary eye care for the majority of Americans
and occupy the middle t i e r of the eye care hierarchy as shown below:
0 Ophthalmologists - physicians who specialize in the medical
and surgical diagnosis and treatment of defects and diseases
of the eye.
0 Optometrists - people who scientifically examine the eye to
detect diseases or defects and prescribe correctional 1 enses
or exerc i ses.
0 Opticians - individuals who f i t , supply and adjust eye
glasses and contact 1 enses prescribed by ophthalmologists and
optometrists.
Regulation of Optometry i n Arizona
The f i r s t optometry law adopted i n Arizona i n 1907 has undergone several
changes, The l a s t major revision was passed by the Legislature i n 1980.
T h i s law changed the Board from five members to six members and, effective
January 1 , 1982, a1 1 owed the use of diagnostic pharmaceutical agents
( BPAs ) by qual i f ied practi Qioners. These changes came after compl etion of
a performance audit conducted by the Office of the Auditor General i n
September 1979 ( Report 79- 1 0).
The Arizona Board of Optometry has the primary responsibility for
protecting the visual health of the public by regulating the practice of
optometry i n the state. The Board has six members, consisting of four
practicing optometrists, one 1 icensed physician and one 1 ayperson , each
serving four- year terns. The duties of the Board include evaluating
applications for examination and licensure, administering examinations,
issuing 1 icenses to qual i fied appl icants, issuing c e r t i f i c a t e s authorizing
the use of DPAs, enacting rules and regulations and resol ving complaints
lodged against licensed optometrists. Table 1 shows a summary of
examinations and licenses issued by the Board for the l a s t four years and
expected 1 icensing activity for 1983- 84 and 1984- 85.
TABLE 1
EXAMINATION ARD LICENSING ACTIVITY OF
BOARD OF OPTCblETRY
FISCAL YEARS 1979- 80 THROUGH 1984- 85
Fiscal
Year
1979- 80
1980- 81
1981- ~ 2 () l
1582- 83
1 983- 84 ( 2 )
1 984- 85 ( 2 )
Appl icants
for
Examinations
J5
44
42
66
7 0
7 5
I n i t i a l
Licenses
Issued
T
4 2
3 7
42
GO
70
Renewal
Licenses
Issued
267
196
404
2
51 0
0
Total
Licenses
Issued
71 5 i
238
44 1
4 4.
570
70
( 1 ) Biennial renewal of 1 icenses became effective i n 1981- 82.
( 2 ) Estimated
Total
Licensed
In- S- t ate
Source: Board of Optometry Budget Requests for fiscal year 1983- 84 and
1 984- 85. 2
Budget and Personnel
The Board's a c t i v i t i e s are currently funded through general fund
appropriations. P r i o r t o July 1980 the Board received 90 percent o f i t s
revenues f o r operations and the remainder went to the general fund as a
90- 10 agency. The Board was changed to a general fund agency wken the
Legislature revised the optometry laws i n 1980. Table 2 shows the current
fees charged by the Board, which were increased i n the 1983 l e g i s l a t i v e
session.
TABLE 2
CURRENT FEES CHARGED BY THE
BOARD OF OPTOMETRY
Exami nation $ 1 25
New License 200 ($ 100 i n even- numbered years)
Biennial Renewal 150
Reci procal L i cense 255
Dupl icate License 3 0
Penalty 2 5
Amounts charged are maximum established by law.
Source: Board o f Optometry Budget Request f o r f i s c a l year 1984- 85.
The Board o f Optometry has no f u l l - t i m e c l e r i c a l support s t a f f . A l l
support functions are provided by the Department of Aciministration through
the Arizona State Boards Administrative Office ( ASBAO). The ASBAO,
created i n 1976, provi des general support functions and o f f i c e f a c i l i t i e s
t o ten small state boards and commissions, including the Board of
Optometry. ASBAO duties include preparation o f meeting minutes and Board
correspondence, c l e r i c a l assistance f o r 1 icensi ng and r e g i s t r a t i o n and
r e c e i p t o f consumer complaints. ASBAO personnel a1 so 1 ) provide support
t o the Boards i n promulgating rules and regulations, 2) prepare annual
budgets, 3) advise the Boards about state government operations, 4) appear
a t 1 egis1 a t i v e hearings, and 5) supervise complaint investigations.
Since ASBAO does not receive appropriations, each Board pays a portion of
the overall costs of the office. The payment reflects ASBAO employee time
spent on each board's business and allocation of other expenses such as
rent, equipment and supplies. These payments are placed in the Special
Services Revolving Funds to reimburse the Department of Administration
( DOA) for all ASBAO expenses. From 1979 through 1983 the Board of
Optometry has paid an average of 45 percent of i t s total expenditures to
ASBAO. Payments to ASEAO during fiscal year 1983- 84 will account for an
estimated 56 percent of the Board's budget. The remainder of the budget
pays Board member travel and per diem costs, costs for resolving
complaints and costs for licensing examinations.
In 1981 the Board of Optometry hired a half- time investigator to help with
compl aint cases. The investigator conducts complaint investigatons,
writes up investigative reports and prepares legal orders when sanctions
are imposed against a 1 icensee.
Table 3 provides budget information for the l a s t two years and estimated
figures for fiscal year 1383- 84.
TABLE 3
ACTUAL AND ESTIbiATED FEE RECEIPTS, APPROPRIATICNS AND
EXPENDITURES BY THE BOARD OF CPTOFlETRY DlJRIhIG
FISCAL YEARS 1981 - 82 AND 1983- 84
Actual Actual Estimated
1 981 - 82 1 982 - 83 1983- 84
Total Receipts -$ 49,779 -$ - 8 ,194 $ 101,400
Total Appropriations 51,900 42,800 --- 43 ,700
Expenditures
Personal Servi ces 12,200 14,200 10,900
Empl oyee Re1 ated 2,500 3,100 2,700
Professional and Outside Services 22,000 19,900 25,000
Travel In- State 4,600 2,400 1,800
Travel Gu t- of- State 1,100 - 0 - - 0 -
Equi prnen t 600 - 0 - - 0 -
Other Operating Expenditures 4,300 3,200 3,300
Total Expenditures 4-- 7 3 -$ 4- 2,8 00 -$ 4- 3-- .700
NOTE: Since the Board of Optometry is a general fund agency, a l l funds
available a t year- end revert back to the general fund.
Source: Board of Optometry Budget Requests f o r f i s c a l year 1983- 84 and fiscal
year 1 984- 85.
Audit Scope and Purpose
The purpose of the audit was to evaluate the need for and adequacy of the
Board of Optometry's regulation of optometric practice. Specifically, we
examined:
The extent to which licensing examinations are an adequate measure
of optometric competency.
The extent to which the Board has been timely i n i t s investigation
and resol ution of consumer complaints.
0 The extent to which rules and regulations are adequate and
consistent w i t h statutes.
The extent to which the Board of Optometry i s able to enforce the
statutory requirement of reporting by ma1 practice insurance
companies.
The Auditor General and staff express appreciation to the members of the
Arizona State Board of Optometry and ASBAO for their cooperation and
assistance during the course of our audit.
SUNSET FACTORS
I n accordance with A. R. S. $ 41 - 2354, the Legislature shoul d consider the
following 11 factors i n determining whether the Arizona Board o f Optometry
shoul d be continued or terminated.
1. Objective and purpose i n establishing the Agency
The objective and purpose i n establishing the Arizona Board o f
Optometry i s t o protect publ i c heal th. The 1 egis1 ature c l e a r l y stated
t h i s i n t e n t i n the laws o f 1980:
" The practice o f optometry, being a profession which
i nvol ves the examination, determination and care o f
conditions o f the human vision system, i s hereby
declared t o have a d i r e c t r e l a t i o n s h i p t o the health o f
the human body. Being invol ved with the public heal t h y
it i s declared essential t h a t the l e g i s l a t u r e regulate
the practice o f the profession of optometry t o
safeguard the publ i c heal t h y safety and we1 fare. It i s
further declared to be a matter of public i n t e r e s t and
concert1 t h a t the practice o f the profession of
o~ tomet" r v merit and receive the confidence of the
public and t h a t only q u a l i f i e d persons be permitted t o
engage in the practice of the profession o f optometry
Tin t h i s state." ( emphasis added)
To p r o t e c t p u b l i c health, the statutes d i r e c t the Board t o determine
qua1 i f i c a t i o n s and procedures f o r admitting people t o the practice o f
optometry.
2. The effectiveness with which the Agency has net i t s objective and
purpose and the e f f i c i e n c y with which it has operated
The agency has generally been e f f e c t i v e i n meeting i t s objective and
purpose. However, improvements are needed. Licensing examinations do
not meet current standards for examinations and may not ensure t h a t
only competent appl icants are 1 icensed ( see page 13). C0mpl a i n t
hand1 ing has improved since 1979, b u t the time taken to deliver legal
orders has been excessive. During these del ays , the sanctioned doctor
i s allowed to practice w i t h o u t restrictions ( see page 23).
3. The extent to which the Agency has operated i n the publ ic interest
The Board of Optometry serves the public interest by regulating
optometrists, who provide primary eye care for most people. Access to
competent eye care i s i n the public interest and is important to
publ ic health. To ensure the competency of optometrists in Arizona,
however, the Board of Optometry must have rules and regulations based
on its current statutes. The Board has not promulgated rules based on
i t s current statutes.
4. The extent to which rules and regulations promulgated by the Agency
are consistent w i t h 1 egi sl ati ve mandate
The Board of Optometry does not have rules and regulations that are
consistent with current statutes. The Board prepared extensive
revisions of its rules to conform to statutory changes of 1980.
However, these revisions are currently awaiting preparation of a
fiscal impact statement as required by the Governor's Regul atory
Review Counci 1 . This delay has 1 e f t the Board without rules needed to
ensure that doctors are using diagnostic pharmaceutical agents
responsibly. The Board also lacks rules that require fee and
treatment information t o be given to patients prior to actual
treatment. Furthermore, existing rules on minimum eye examination and
false advertising may violate federal and state anti- trust laws and
should be removed ( see page 29).
5. The extent to which the agency has encouraged i n p u t from the public
before promulgating its rules and regulations and the extent to which
i t has informed the public as to i t s actions and their expected impact
on the public
The Board has fulfilled requirements for public notice on Board
actions and changes in rules and regulations. When rules were changed
i n 1980 a public hearing on the proposed rule changes was held and
notices sent to the Arizona Cptometric Association. The Board has
posted public notice of Board meetings w i t h agendas as required.
6. The extent to which the Agency has been able to investigate and
resolve complaints that are w i t h i n i t s jurisdiction
The Board of Optometry has adequately investigated and resol ved most
compl aints. However, delays i n preparing censure and probation orders
for delivery to the 1 icensees has hindered Board resolution of some
complaints. Delays i n issuing orders a1 101~ s 1 icensees to continue to
practice without restriction, and i n one case the Board had to rescind
i t s order because of the excessive delay ( see page 23).
7. The extent to which the Attorney General or any other applicable
agency of state government has the authority to prosecute actions
under enabl i ng 1 egi sl ation
All sections of the optometry statute are enforceable by the Attorney
General, Board of Optometry or County Attorney, except the reporting
of malpractice claims and settlements by insurance companies.
Enforcement of ma1 practice reporting i s difficul t because there are no
penalties for noncompliance and the Board of Optometry has no
authority over insurance companies ( see page 35).
8. The extent t o which the Agency has addressed deficiencies i n the
enabling statutes which prevent it from f u l f i l l i n g i t s statutory
mandate
The Board has attempted t o make several statutory changes t o increase
i t s effectiveness. During the 1983 l e g i s l a t i v e session the Board of
Optometry requested 1 egi s l ation t o raise 1 icense fees. One- ha1 f of
the requested fee increase was granted. The Board plans t o introduce
l e g i s l a t i o n i n 1984 to make several changes including 1 ) funding the
Board with 90 percent o f license fees with the remainder going t o the
general fund, 2) making the use o f informal interviews discretionary,
and 3) allowing the charging o f i n v e s t i g a t i v e fees t o licensees who
have violated statutory provisions or rules.
9. The extent t o which changes are necessary i n the laws o f the agency t o
adequately comply with the factors l i s t e d i n the Sunset laws
Based on our audit work, we recommend the l e g i s l a t u r e consider the
f o l l owing changes:
Amend A. R. S. $ 32- 1 724 t o omit a1 1 references t o the Board w r i t t e n
examination and require a l l applicants f o r i n i t i a l 1 icenslare to
submit proof of passing the exam o f the National Board of
Examiners i n Optometry ( see page 21 ) .
e Amend A. R. S. § 32- 1744. B t o a1 low the Board of Optometry t o bypass
the informal interview and proceed d i r e c t l y to formal hearing
when warranted by available evidence ( see page 28).
Amend A. R. S. $ 20- 1742 t o a ) r e q u i r e insurance companies t o
report ma1 practice claims and settlements against optometrists to
the Department o f Insurance, and b) require the Department of
Insurance t o forward a l l such reports t o the Board of Optometry
( see page 37).
Amend A. R. S. $ 32- 1745 to direct the Board of Optometry to
investigate reports of malpractice claims and settlements against
optometrists i n a manner similar to that of the Board of Medical
Examiners. T h i s change would require the Board to determine if
viol ation of optometry statutes, rules and regulations have
occurred ( see page 37).
10. The extent to which the termination of the agency would significantly
harm the publ ic heal t h y safety or we1 fare
Termination of the Board of Optometry would harm the public. The
practice of optometry i s the examination of the human eye and fitting
of corrective devices to aid i n visual function. If performed
incorrectly, these practices could lead to permanent eye damage or
discomfort. Terminating this Board woul d unnecessarily expose the
publ ic to incompetent practitioners by el iminating assurances that
practitioners demonstrate specific skill.
11. The extent to which the level of regulation exercised by the agency i s
appropriate and whether less or more stringent levels of regulation
woul d be appropriate
The overall level of regulation by the Board of Optometry appears to
be appropriate b u t some changes i n rules and regulations are
necessary. The optometry statutes provi de sufficient basis for
regulating the profession. The Board, however, must define the
regulatory procedures and requirements through the ru1 es and
regulations to further ensure competent practitioners. See Factor 4
for more information.
FINCING I
DEFICIEE4CIES IN THE BOARD OF OPTCMETRY LICENSING EXAl4INATION P. NY PREVENT
THE BOARD FROM ADEQUATELY ASSESSING COMPETEKCY
All three parts of the Board of Optonetry licensing examination contain
deficiencies that 1 imi t the Board's abil i t y to make correct, defensible
licensing decisions. The Board's procedures for developing the content of
all three examinations are inadequate and limit the Board's a b i l i t y to
successfully defend examination val i d i ty. In addition to content
problems, each part of the examination - written, sl ides and patient exam
- has additional deficiencies that rnust be corrected to assure that only
competent appl icants are 1 icensed. In particular, the Board's written
examination has deficiencies that are d i f f i c u l t to correct and could be
el imi nated by using instead the national written exam.
The Arizona Board of Optoinetry 1 icensing examination i s offered annual ly
i n July. All applicants must pass the Board's two- part practical
examination, which consists of a pathology slides examination requiring
appl icants to identify various eye conditions i n writing while viewing
slides, and a patient examination requiring applicants t o perform an eye
examination i n the presence of a grading examiner. In addition,
appl icants for i n i t i a l 1 icense must pass either the Board's nine- part
written examination or the written examination offered semiannually a t
optometry schools by the National Board of Examiners i n Optometry ( NBEO).
Eighty- four percent of i n i t i a l appl icants have submitted NBEC scores since
1982 when national scores were f i r s t accepted.
Exam Content May Not Re1 ate to Skill Levels
Required For competent Gptometri c Practice
The examination's scope and weighting do not assure that only competent
appl icants receive optometric 1 icenses. Cl ear standards e x i s t t h a t
specify how 1 icensi ng exa~ ination content shoul d be developed. tiowever,
no aocumentation indicates that the content o f the Arizona examination
adequately represents the scope and depth o f knowledge required f o r
optometric practice.
Clear Standards Exist - Nationally recognized standards e x i s t for the
development o f licensure examinations.* An essential component o f the
standards i s the requirement t h a t examinations be v a l i d - t h a t they
actually measure what they are intended t o measure. ( I n the case of
optometry appl i cants, t h i s i nvol ves competency t o practice optometry. )
A1 though there are maKy ways t o demonstrate examination val i d i ty, content
val i dation i s the easiest and 1 east expensive method. Content validation
requires t h a t examination content be closely linked t o occupational
practice requirements. To acconipl i sh t h i s, job content i s deterni ned
during examination creation by describing the major occupational duties,
t h e i r r e l a t i v e importance and the amount of s k i l l needed t o perform these
tasks competently. Pass/ fail c u t o f f s are then set based on the
examination goal o f determining minimal optometric competence.
Content Not Substantiated - The Board's procedures used t o develop the
examinations do not conform t o the national standards for t e s t
development. The Board has not substantiated the reletionship between
exam content and optometric practice. Board members preparing the exams
have not received gui del ines f o r determining exam content. Rather, exam
content i s dependent on the t e s t items obtained from outside sources. I n
addition, exam sections and items have not been weighted based on t h e i r
importance and frequency o f use i n optometric practice. The Board's
f a i l u r e to define the type of a b i l i t y and knowledge needed f o r competent
optometric practice has allowed exam content and competency requirements
* National standards f o r 1 icensing examinations have been develcped by a
j o i n t committee o f the American Educational Research Association,
American Psychological Association and the National Council on
Measurement i n Education. These standards cover a wide range o f areas
including examination preparation, validation, administration and
scoring.
to change without cause from year to year. Finally, the Board has not
ensured that examination difficulty i s consistent from one year to the
next. As a result, the level of s k i l l required to demonstrate competency
niay vary each year.
Additional Hri tten Examination Deficiencies
Could be Corrected by an NBEO Examination Reauirement
In addition to deficiencies i n examination content, statutory
misinterpretation and inadequate procedures have further limited the
Boarci's abil i ty to rake sound 1 icensi ng decisions. However, correcting
the Board's written exam would be an inefficient use of i t s limited
resources because a superior national examination is avai 1 able. Requiring
all applicants to take the RBEO examination would save the Board money and
el iminate rnany problems w i t h the current examination.
Incorrect Grading - The Board has not followed the statutory provision for
computing app1 icants ' written examination grades. Since A. R. S: $ 32- 1 724 . C
went into effect i n 1960, 28 applicants who received licenses would have
f a i l ea i f the statutory grading formula were fol1 owed. Statutory
misinterpretation a1 so caused the Board to e r r i n weighting practical
exanination scores inequitably.
~ w e n t y - e i g h t I n c o r r e c t l y L i c e n s e d - Between 1980 and 1983, 18 percent of
the 157 applicants licensed should have failed. On the l a s t four exams
administered, the Board did not use the correct pass/ fail determination
formula specified by law. A. R. S. $ 32- 1724. C states that:
" To receive a passing grade on a nri tten examination
administered by the Board, an appl icant must make a
grade of not less than seventy- five per cent on the
whole examination. . . ." ( emphasis added)
According to Legisl a t i ve Counci 1, t h i s statute, which became effective i n
1982, requires the Board to compute appl icants ' cumulative written
examination scores independently of their practical exam scores ( see
Appendix). However, the Board averages the appl icants' nine written exam
section scores w i t h their two practical scores to arrive a t cumulative
grades. This procedure resulted from misinterpreting the statute.
The Board's grade computation e r r o r a f f e c t s only those appl icants taking
the Board ' s written examination. Since t h i s excl udes a1 1 reciprocal
candidates and applicants submitting NBEO scores, the Board's error had
much greater impact i n 1980 and 1981 when NBEO scores were not accepted.
In 1980 and 1981, 25 of the 55 appl icants receiving i n i t i a l 1 icense had
cumulative written examination grades below the 75 percent statutory
minimum ( see Table 4). In 19132 and 1983 only 18 applicants took the
Board's written examination. Three of the eight people receiving 1 icenses
d i d not meet the statutory standards for the state written examination.
TABLE 4
LICENSING EXAMINATION STATISTICS FOR 1980- 1983
- 1980 - 1981 - 1982 - 1983 - Total
Licensing Exac~ ination Appl icants 3 0 44 5 3 60 187
Applicants Receiving License 2 5 3 6 42 5 4 157
Appl icants Taking Board's
Written Examination
Applicants taking the Board's
Written Exam and Receiving License 2 2 3 3 3 5 63
Licenses issued to Board Written
Examination Appl icants scoring be1 ow
the 75% statutory minimum 11 14 2 1 28
( 1 ) Statutory changes in 1982 a1 lowed the Board of Optometry to accept
passing NBEO scores i n 1 ieu of the Board's written examination. As a
resul t, the number of appl icants taking the State written examination
decreased sharply.
Source: Board of Optometry Examination Score Summaries, 1980- 83.
16
D i s c r i m i n a t o r y Weighting - Differential weighting of practical
examination scores discriminates against applicants submitting NBEO
scores. kBEO applicants' slide and patient exam scores each account for
50 percent of their overall grade. As discussed previously, because of
the Board's misinterpretation of the statute, appl icants taking the
Board's written exam have a l l nine written exam section scores averaged
w i t h t h e i r s l i d e and patient exam scores, so each practical exam accounts
for only nine percent of their overall grade. This discriminates against
NBEO applicants since their passing written exam scores are ignored when
computing a grade. As a result, a Board written exam applicant may
qualify for a 1 icense even i f his exam scores are lower than a NBEO exam
applicant who may not have qua1 ified for 1 icense. Tke Board acknowledged
this discrepancy when responding to a 1982 applicant who failed and f e l t
the path01 ogy sl ides exam was weighted too heavily:
" Every applicant i s given the choice of using qualified
NBEO scores or taking the entire written examination.
Taking the entire written examination raises the
1 ikel i hood of achieving an overall passing grade."
Use of National Examination - Correcting the Board's written examination
would be an inefficient use of i t s available resources because a superior
national examination is available. Due to i t s size and 1 i m i ted resources,
the Board is not capable of preparing a written examination comparable to
the NBEO examination. In addition, requiring all applicants to take the
NBEO examination would save Board resources and elininate many current
exarni nation problems.
The Arizona Board of Optometry currently lacks the a b i l i t y and resources
to prepare a written examination that i s comparable to the NBEO
examination. Board members 1 ack know1 edge in examination techniques and
technical assistance i s not available. In addition, the Board lacks the
techno1 ogy and expertise needed for performing increasi nsly compl ex
s t a t i s t i c a l operations. In cotitrzst, NEE0 has extensive resources for
developing examinations. NBEO empl oys a psychometrician ( examining
expert) who keeps abreast of advances i n exam science and constantly
reviews and revises its exam and analysis techniques to reflect most
recent advances i n testing.
Tile Board written examination does not make effective use of the Board's
limited resources. Since 1982, the number of applicants taking the
Board's written examination has dropped 75 percent. Preparing the written
examination that was taken by only eight of the 00 applicants i n 1983
consumed a great deal of the Board's time.
Relying solely on the NBEO examination would solve many of the Board's
written examination problems. The NBEO requirement woul d resol ve the
written examination content problems and reduce the possibility of
successful 1 egal chall enges. In addition t o freeing resources for
upgradi ng practical examinations, NBEC requirement woul d a1 so el imi ate
problems of statutory noncornpl iance and differential weighting of the
Board's written examinations. Finally, 20 states currently accept only
MBEO exam scores as a written examination. Adoption of an NBEO
requirement will increase the ease of reciprocity licensure between states.
fl
Poor Qua1 i ty Sl ides
Fifteen qua1 ified appl icants were initially refused a 1 icense because
poor- qua1 i ty sl ides i n the pathol ogy examination resul ted in incorrect
judgments of their optometric competence. This error occurred because
Board procedures were inadequate to discover the problem.
The Board initially failed 15 qua1 i fied appl icants because poor- qua1 i ty
sl ides caused appl icants' pathol ogy examination scores to be incorrectly
low. I n i t i a l l y , 21 of the 60 applicants i n 1983 failed the licensing
examination. One of these appl icants chal 1 enged his pathol ogy examination
score. A qua1 i t y review conducted a t the next Board meeting revealed that
20 percent of the pathology slides were unacceptable because an applicant
could reasonably reach a conclusion that differed from the Board's
" correct" answer. The Board adjusted the examination scores of all
failing applicants, allowing 15 of the 21 to receive licenses.
The error occurred because the Board did not adequately review the slides
prior to giving the examination or during i n i t i a l grading. Prior review
would have indicated that some of the slides, which were borrowed from the
University of Arizona, d i d not clearly represent the eye condition
identified as correct. In addition, the Board d i d not perform item
analyses on the path01 ogy examination resul t s before sending grades to
appl icants. Item analyses woul d indicate slides identified incorrectly by
a large percentage of examinees and indicate the necessity for quality
review. If the Boara performed item analyses, the poor quality slides
could be identified and eliminated before assigning final grades. If t h i s
error had not been discovered, 15 applicants would have been unfairly
restricted from entry into the profession.
Patient Exam Procedures
Mere Inadequate
The Board's patient exam i s an inadequate indicator of applicant
competency because the Board lacks written procedures for exam creation,
administration and grading. In 1983 the Board granted an optonetric
license to an applicant who was incompetent according to Board standards,
because its grading procedures were inadequate. Furthermore, the Board's
administration of the patient exam i s not well standardized and does not
control exani ner bias.
The Board licensed an unqualified applicant i n 1983 because the Board's
grading procedures for the patient examination were inadequate. Each
examiner i s responsible for grading and computing the total scores of all
applicants assigned him. The Board does not check the accuracy of these
grading sheets. In 1383, an error i n addition caused an applicant's
patient examination score to be incorrectly high, qualifying him for
licensure. Although this was the only grading e r r o r t h a t resulted i n
improper licensure, 30 percent of a l l 1983 licensing examination scores
were incorrect due to undetected mathematical errors. Some grading sheets
were also incomplete or not signed by the examiner, making accuracy checks
d i f f i c u l t to perform.
The Board's patient exam administration procedures are not standardized
and do not prevent examiner bias. Rather than having each examiner grade
specific questions for a1 l appl i cants, each examiner grades the entire
examination for different appl icants. A1 so, examiners are given no
training that instructs them to uniformly assign points. One examiner may
feel an applicant's performance merits a five while another examiner may
feel the same performance deserves a three. The 11- point spread between
the average grades assigned by different examiners indicates that the
Board could not defend the exam against claims of biased exam
administration. Optometric competency must be defined and measured
equitably for all applicants. The Board's use of one examiner and a
subjective rating scal e may precl ude unbiased exam resul ts. *
CONCLUSION
The Board of Optometry's licensing examination does not comply w i t h
examination standards. Overall exam content i s not directly re1 ated to
s k i l l levels required for competent optometric practice. The Board has
not determined the s k i l l s necessary to practice optometry or ensured that
examination difficulty i s consistent from year to year. The Board has not
s t r i c t l y followed pass/ fail procedures outlined i n Arizona statutes,
causing inequitable weighting of practical exam scores for applicants
* The Optometry Board may be able to correct problems in both of its
practical examinations by using national examinations currently being
devel oped. The IAB ( International Association of Boards of Examiners
i n Optometry) i s developing a regional cl inical examination that tests
clinical s k i l l s as does the Board's patient examination. The NBEO i s
planning to add a section to i t s written exam that can take the place
of the Board's path01 ogy sl i des examination.
submitting passing NBEO scores. The Board's written examination is
unnecessary since the NBEO exam i s available and is superior to the
Board ' s ~ rttien examination. Also, the Board's pathology examination
procedures do not ensure the qual ity of test items. Furthermore,
inadequate grading and faul ty administrative procedures may bias results
on the Board's patient examination.
RECObICiEE4DATIO IilS
1. The Board shoul d revise practical examination content, weighting and
difficulty, with the assistance of an examining expert, to properly
measure appl icants ' abi 1 i ty t o perform re1 event optometri c ski1 1 s.
2. The Legislature shobl d consider amending A. R. S. $ 32- 1724 to omit all
references to the Board written examination and require a1 1 appl icants
for initial licensure to submit proof of passing the NBEO examination.
3. The Board shoul d improve the pathology examination by:
a. Creating a sl ide bank that meets qual ity and content requirements.
b. Including more sl ides in each exam so the removal of any sl i de has
less overall impact on final grades.
c. Assuring accuracy and quality through mu1 tiple gradings and the
use of item analyses.
d. Clarifying slides by using case histories or ~ u l t i p l e choice
formats when necessary.
e. Developing wri tten procedures for examination preparation,
administration and grading, incl udi ng instructions for a1 1
involved in the exam process.
f . Evaluating the f e a s i b i l i t y of using the NBEO exam's pathology
diagnosis section when i t is instituted i n 1985 or 1986 as a
substitute for the Board's sl ides examination.
4. The Board should improve the patient exam by:
a. Providing a1 1 examiners w i t h training and written instructions.
b. Rating a l l examination procedures on the same numeric scale
correlated w i t h specific skill levels ( e. g, 1- unsatisfactory;
2- inferior; 3- sati sfactory; 4- excel lent; 5- superior). Points can
then be nu1 tip1 ied by the procedures weight during the grading
phase.
c. Controlling examiner bias by
having mu1 ti pl e examiners evaluate each appl icant, or;
0 comparing patient examination resul t s prepared by appl icants
to results previously recorded by mu1 t i p l e examiners, or;
m using examination stations so every applicant is rated on the
same procedures by the same examiner.
d. Performing multiple accuracy checks on a l l grade computations.
e. Considering participation i n the development of regionzl cl inical
examinations and evaluating the f e a s i b i l i t y of their use when
available.
IIIPROVEMENTS HAVE BEEN MADE IN THE HANDLING OF CONSU14ER COPIPLAIIITS.
tiOCIEVER. FROBLEI.! S EXIST IN THE PROCESSIMG CF LEGAL NOTICES
The Arizona Board of Optometry has improved i t s handling of complaints i n
recent years, b u t additional improvements are needed. The Board no longer
f a i l s to conduct proper investigations or routinely dismisses complaints
as documented in a previous performance audit. The Board has also made
other improvements i n resol vi ng compl aints. However, there are excessive
delays in the drafting and approval of leg21 orders and other legal
documents. In addition, the requirement for informal interview may hinder
the Board i n resol vi ng complaints.
The Board of Opton~ etry received approximately 110 compl aints between
January 1 , 1981 and October 31 , 1983. Complaints may come from consucers,
other optometri sts, Board members and other medical professional s.
Complaints cover a range of problems incl ~ tdnig standards of practice,
unprofessional conduct, unl icensed activities and fees. To process
complaints the Board receives clerical assistance from the Arizona State
Board's Administrative Office ( ASBAO). The Board a1 so empl oys a ha1 f- time
investigator who prepares investigative reports and handles other Board
business, such as drafting legal orders, when directed to do so.
The Board Has Improved I t s
Hand1 i ng of Complaints
The Board of Optometry has ircproved i t s hand1 ing of compl aints against
licensed optometrists since 1979. A t that time the Acditor General found
that the Board was i nappropri ately dismissing many compl ai nts. The Eoard
has corrected this problem and has also improved i t s procedures to reduce
delays in deciding ccmpl aint cases. The Optometry Board now routinely
investigates and processes a11 co~ plaints. Our copplaint review showed
that the staff investigator conducts adequate investigations and prepares
reports for the Board on serious cases. The Board disniisses few complaints
as fee disputes and no longer closes cases simply because a 1 icensee makes
restitution to a compl ai nant.
The Board has also recognized the need to prioritize complaints since the
1979 Auditor General report was issued. In response to this, the Board
has adopted new procedures to a1 locate part- time investigative resources
and deal w i t h chronic violators. The new Board policy i s to conduct field
investigations on minor complaints* only i f four or more similar
compl aints are received. Because these procedures are re1 ati vely new, the
Board may need to make additional changes based on i t s experience with
tliem .
Problems In Processing
Legal Orders
The preparation and review of legal riotices of censure and probation has
delayed the resolution of compl aints. Excessive tine i s spent drafting
and approving Board orders and hearing notices. These delays have caused
challenges to the legality of Board orders. In addition, one other Board
order was not sufficiently specific. A1 though the cause for the delays i s
not certain, the Board of Optometry has final responsibility t o enforce
the optometry statutes and rules.
Legal Orders Delay - The time taken to prepare 1 egal orders stating Board
sanctions i s excessive. A review of six complaints** resulting i n legal
orders showed that the Board took between one and seven months to draft
the orders and that i n five of these complaints another eight to 14 months
were required for the Attorney General's Office to review them and the
Board to take final action.*** During this review period, however, the
* Minor complaints are those that pose the fewest health risks and
therefore receive tke 1 owest investigative priority. Exampl es of
these broul d i ncl ude fail ure to provide eyeglass prescriptions on
request, a1 1 egations of unsatisfactory goods and services and fee
compl aints.
** A1 1 1 egal orders issued during 1983 were reviewed. Of tlie eleven
orders issued, complete information could be obtained on only six
cases.
*** The Attorney General ' s Office regularly reviews the legal orders of
Boards to 1 ) see i f there i s sufficient evidence to support the
findings of fact and conclusions of law, and 2 ) to determine i f the
proper statutes were cited for the violations charged.
2 4
1 icensee i s n o t 1 egally required to practice under Board ordered
stipulations.
Tlie reason for these delays i s not certain. Clear documentation is not
available. According to the Board's Executive Director, extensive delays
occurred during the Attorney General ' s review and the Board regularly
asked the Attorney General representative about the orders that were being
del ayed. The Attorney General representative said that she usual ly
advised the Board on n~ ost cases w i t h i n a month of receiving i t s decision,
b u t the Board delayed taking final action. The Attorney General
representative also noted that the orders were received long after the
Board decisions. Consequently, to refresh her memory regarding the cases,
she needed to make extensive reviews of the investigative reports and case
f il es before approving tiie orders.
Delays i n issuing orders have resulted i n challenges to Board legal
orders. Licensees have chal 1 enged ttie 1 egal i ty of unreasonabl e delays i n
receiving Board orders. Due to a legal challenge, the Eoard rescinded an
order approved i n February 1983 because of " excessive administrative
delays. " Board minutes stated:
" The Board reviewed ( the doctor's) appeal of Censure.
This Censure had been submitted to the Attorney
General's office for approval i n 1981. Approval was
received i n 1983 and the Censure was subsequently sent
to ( the doctor). [ I t was moved and1 . . . seconded
that the censure be rescinded due to administrative
1 egal delays. Motion carried. "
Another 1 icensee complained that the Board deprived him of a fair hearing,
in part because the Board issued an order two and one- half years after the
initial eye examination. Although the doctor took eight months to respond
to the Board's request for information, the Board requested a legal order
w i t h i n four months of receiving the needed records b u t d i d not receive the
final order for an additional 14 months.
Hearing Notice Delay - Simil ar delays occurred i n preparing one hearing
notice.* The drafting of the hearing notice has caused more than a
* The Board of Optometry has held only three formal hearings since July
1980.
one- year delay i n the resolution of one case involving 17 complaints. In
this case, a law clerk worked on the notice under supervision of the
Board ' s Attorney General representative and the Board subsequently
directed i t s investigator to complete the notice. As of January 1984,
this notice has not been completed.
The reason for the delay i n preparing the hearing notice is not clear.
According to the Attorney General representative, hearing notice
preparation was awai t i ng the compl eti on of Board del i berati ons. However,
the Executive Director said that all deliberations had been completed.
Further facts are difficult to determine because Board minutes do n o t
state when the Board moved to go to formal hearing or requested that a
notice be prepared. Board records stlow that the Eoard found cause to
consider charges i n 17 complaints against the optometrist in February
1982. Three of the complaints i n the case were discussed a t the Flay 1982
meeting and the matter was continued to June 1982. However, the matter
did n o t appear i n the minutes again until June 23, 1983, when the Board
discussed the completion of the notice of hearing.
Crder Wot Specific - The Eoard encountered a problem with one other , legal
order. A recent Board order prohibited an optometrist from performing a
procedure until he demonstrated competence to the Board. The optometrist
failed to correctly diagnose glaucoma during a visual fie1 d examination.
Arizona 1 aw requires optometrists to refer glaucoma cases to physicians.
Because the optometrist failed to diagnose glaucoma, the patient d i d not
seek medical care and 1 ost vision. The Board f e l t that the optometrist
needed to improve his skill in using field examinations. I t s order,
however, did not state how the licensee was to show competence and he
requested clarification.
Board Responsibility - Regardless of the specific cause for the delays,
the Board of Optometry has final responsibility to enforce the optometry
statutes and rules. Therefore, the Board needs to nonitor the progress of
i t s legal orders i n the future and expedite them when necessary. The
Board recently cleared a backlog of five complaints that had been pending
between 12 and 22 months. Earlier monitoring of the progress of these
reports may have accelerated their del i very to sanctioned doctors.
Informal Interview Requirement
Del ays Compl ai n t Resol u ti on
The i nforrnal interview requirement delays the resolution of some cases.
By law, the Bcard of Optonetry must complete an informal interview prior
to formal hearings i n a l l cases, even cases i n wtrich overwhelming evidence
exists for revocation of 1 icense. A case that highlights this problem
concerns a doctor who was convicted of a felony and i s now serving time i n
prison. Statutes require that convicted felons no longer be allowed to
practice optometry. To remove this optometrist's 1 icense, however, the
Board must hold both an informal interview and a formal hearing, an
unriecessary and costly procedure i n 1 ight of the evidence. As a result,
the Board i s seeking statutory revisions to make the informal interview
discretionary to avoid such delays.
Other regulatory boards are not required to hold an informal interview i n
every complaint case. In a review of seven regulatory boards, we found
only two that must hold informal interviews. Five others may bypass the
informal interview a t their discretion.
CONCLUSION
The Arizona Board of Optometry has made improvements i n the processing of
coritpl aints , but additional improvements are necessary. Problems
identified previously, such as inadequate investigations and improper
closing of complaints, have been corrected. However, the Board and the
Attorney General's Office need to reduce the excessive amount of time
taken to draft and review legal notices. Also, the informal interview
requirement i s costly and delays complaint resolution i n cases w i t h
overwhelming evidence of violations.
RECCt/ lt'iENDATIOtlS
1. Tire Board shoul d monitor the preparation and approval of Board 1 egal
orders and should take steps to expedite the delivery of orders when
del ays are apparent.
2. The Legisl ature shoul d consider amending A. R. S. $ 32- 1744. B to a1 low
the Board of Optometry to bypass the informal interview and proceed
directly to formal hearing when warranted by avail abl e evidence.
TtlE BOARD OF OPTOMETRY LACKS ADEQUATE RULES AtlD REGULATTCMS
The current optometry rules and regulations are inadequate. The rules do
not allow the Board of Optometry to effectively monitor the use of
diagnostic pharmace~ tical agents ( DPAs) and efficiently approve conti n u i ns
education courses. In addition, some rules conflict w i t h state and
federal anti- trust laws. Although the Board has drafted new rules that
correct these problems, the new rules have not been promulgated because
the Board has not prepared the required fiscal impact statements.
The 1980 Legislature terninated the Board of Optometry and created a new
Board w i t h new statutes. The new law permitted optometrists to use DPAs
for the f i r s t time. Because i t s enabling legislation had changed, the
Board attempted to re- prcmul gate a1 1 rules and regulations. The Attorney
General, however, woul d not a1 1 ow the Board to simply re- promul gate i t s
existing rules since they were inconsistent w i t h the new law. The Board
completed the final draft of i t s proposed rules and regulations in ?\: arch
1983.
New Rules and Reaulations are Necessary
The Board needs to promulgate rules and regulations that broul d allow i t to
effectively carry out i t s statutory responsibil i ties. The Board's current
rules do not address two important areas i n i t s statutes. Sore current
rules on continuing education are inconsistent ~ i t h revised statutory
provisions and reduce the Board's operating efficiency. Some current
regulations also conflict with federal and state anti- trust laws.
Lack of Rules - The Board has no rules covering two important areas of
optometric practice. Current rules do not regulate use of DPAs by
optometrists. In addition, the current rules 1 ack practice requirements
that ensure that consumers have access to fee and treatment information
and that optometrists nai ntai n adequate records.
Current rules do not provide effective control over the use of DPAs by
qual ifieci optometrists. DPA use was statutorily permitted on January 1 ,
1982, when the Legislature expanded the scope of optometric practice by
a1 1 owing qual ified optometrists to use certain pharmaceutical s for
diagnostic purposes only. Rules that require doctors to record
information on DPA use i n patient files ( i . e . , type of @ PA, dosage) and to
publicly display the certificate authorizing use of these agents, are
necessary for the Board to adequately monitor DPA use.
The proposed rules a1 so contain optometric practice requi rements that are
absent i n the Board's current rules. These rules are designed to further
protect p ~ b l i c welfare and may be difficult t o enforce prior to the
promulgation of the new rules. Among these are provisions that require
optometrists t o disclose fee and treatment information to patients so that
they are aware of costs and treatments before they are performed. Also,
the proposed rules require optometrists to maintain certain records and
patient information on examinations given, DPAs used and prescriptions
written for the patient.
Continuing Education - Optometry Board rules on continuing education are
inefficient and tine ccnsuming. The Board must review each continuing
education course submitted for credit prior t o 1 icensure. In addition,
continuing education rules are based on annual renewal when statutes
specify biennial renewal.
The Board must review all continuing education classes submitted by
1 icensees to meet statutory requirements for re1 icensing. Currently, the
Board must approve each continuing education course individual ly and
licensees must submit evidence of approved hours for all continuing
education credit claimed for re1 icensure. Approving the individual
courses consumes valuable time a t Board meetings. The proposed rules
would save the Board time by providing blanket approval to certain
organizations ' conti nui ng education courses. For exampl e , approved
organizations might incl ude accredited optometry school s and American and
Arizona Optometric Associations. The proposed rules waul d a1 so reduce
paperwork by allowing optometrists to submit biennially a notarized
affirmation of continuing education attendance.
The Boara's rules on continuing education are inconsistent w i t h i t s
statutes. The rules are based on annual relicensing b u t statutes now
allow a two- year licensing period. In 1980, legislation was enacted to
provide two- year 1 icensi ng periods for the board to reduce costs. A t this
tioe, the rules require 16 hours of continuing education each licensing
year. However, the Board s t r i c t l y requires 32 hours over a two- year
period. lJhile this pol icy i s appropriate, the proposed rule would clarify
current Board operation.
Conflicts w i t h State arid Federal Law - Some of the Cptometry Board's
current rules and regulations confl i c t w i t h federal and state anti- trust
1 aws. In 1979, Legislative Council and Attorney General opinions stated
that two optometry rules did not conform w i t h state and federal laws.
Patient exam requirements in R4- 21- 04. B. were deemed i n violation of
a n t i - t r u s t law because they required o p t o ~ e t r i s t st o provide services that
might be unnecessary, thus increasing consumer costs. A1 so, according to
Legislative Council , a fa1 se advertising provision i n R4- 21- 03. A may be
more r e s t r i c t i v e than the Federal Trade Commission ( FTC) rule that does
not allow a s t a t e to enforce a 1 imi t on the dissemination of information
concerning ophthalmic goods and services. These rul es have remained
unchanged since receiving negative 1 egal opinions. The proposed rul es
attempt to conforlii w i t h federal and state law, b u t this has not been
legally confirmed yet.
The Board Has Not Prepared the
Required Fiscal Impact Statements
During the period of March through November 1983 the Board d i d not contact
the Governor's Regul atory Review Council or Executive Budget Office to
determine what needed to be done to meet fiscal impact statement ( FIS)
requirements for the promul gation of rules and regulations. The Board
completed new rules and regulations i n March 1983, b u t took no formal
action to gain information on preparing the FIS necessary for their
promulgation until November 1983.
A1 though the Board of Optometry received FIS guidelines i n August 1982, i t
was uncertain about i t s a b i l i t y to prepare the required statement when it
completed the draft rules and regulations i n Flarch 1983. However, the
Board cli d not formally contact either the Governor ' s Regul atory Review
Council or the Executive Budget Office ( EBO) before November 1983 to seek
c l a r i f i c a t i o n of the guidelines or assistance i n preparing the FIS. The
Board informal ly attempted to obtain clarification on FIS requirements
from the Governor's office and counci 1 chairman. However, neither attempt
was successful . According to the Board president, FIS preparation is time
consuming and difficul t so the Board is delaying promulgation of new rules
until a person can be found to prepare the FIS.
In November 1983 the Board formally requested assistance i n f u l f i l l i n g the
FIS requirement. The Board's Executive Director submitted a $ 10,000
supplemental appropriation request, which i ncl uded $ 2,000 for h i r i n g
outside professional s t a f f to prepare the FIS. The Board also sent a
l e t t e r to the Council explaining their problems and requesting assistance,
b u t had not received a response as of February 10, 1 x 4 .
CONCLUSION
The Board of Optometry lacks adequate rules and regulations. The Board
has delayed promulgation of needed rules and regulations because i t has
not prepared the required fiscal impact statements. The delay limits the
Board's ability to monitor DPA use by optometrists, maintains inefficient
and tine- consuming Board procedures for relicensing and creates the
possibility for legal challenge i f the Board attempts to enforce rules not
consistent w i t h federal and state law.
RECOMPlENDATION
The Eoard of Optometry should use guidelines issued by the Governor's
Regulatory Review Counci 1 and seek clarification to deterni ne the
information necessary to prepare an adequate FIS for promulgating new and
revised regulations.
THE STATUTE REQUIRING INSUPANCE COWANIES TO EEPCRT MALPRACTICE CLAIMS
AGAINST OPTOMETRISTS IS NOT ENFORCEABLE
Enforcing the statute requiring insurance companies to report malpractice
claims and settlements against optonetrists i s difficult. The current
statute is not clear and does not ensure that the Optometry Board will
receive malpractice reports. Recent changes in the Board of Medical
Exami ner ' s ( Ei0f~ iEX) statutes addressed identical probl ems. The changes
transferred enforcement responsibility for reporting to the Department of
Insurance and clarified the Medical Board's use of the malpractice reports.
Hal practice Reporting
Statutes Are Not Clear
Although current statutes require insurance companies to report
ma1 practice cl aims and settlements against optometrists, the 1 aw i s not
clear. Neither the Department of Insurance nor the Board of Optometry has
specific responsibil i ty for enforcement. The law provides no penalty for
companies failing to report. Furthermore, the statutes do n o t direct the
Optometry Board t o review reports i n any specific manner.
Arizona law does not designate an agency to enforce optometric malpractice
reporting and does not provide sancti~ ns against insurance companies that
fai 1 to report. Arizona Revised Statutes ( A. R. S. ) SS2- 1745. A states only
that:
" An insurer providing professional 1 iabil i ty insurance
t o a doctor of optometry licensed by the Board pursuant
t o this chapter shall report t o the Board, within
thirty days of i t s receipt, any written or oral claim
or action for damages for personal injuries claimed to
have been caused by an error, omission or negl igence i n
the performance of such insured's professional services
or based on a claimed performance of professional
services without consent or based upon breach of
contract for professional services by a doctor of
optometry. "
Even though this provision i s part of the optometry statutes, neither i t
nor any other law gives the Board any enforcement authority over insurance
companies operating i n Arizona. On the other hand, the Department of
Insurance has sole authority over insurance companies b u t lacks specific
authority to enforce the reporting requirement. Moreover, statutes do not
provide penal ties against insurance companies that fail to report,
reducing the potenti a1 effectiveness of the reporting requirement.
The effectiveness of malpractice reporting is also limited because the law
does not direct the Board of Optometry to use this information i n any
specific way. Unlike BOKEX laws, the optometry statutes provide for only
a general review and do not specify whether the report is to be handled as
a complaint or only as information for re1 icensure.
The Legi sl ature Addressed
Sinii 1 ar Probl em in BOliiEX Statutes
Recent changes in BOFEX enabling statutes provide a means for clarifying
the ma1 practice reporting require~ ent i n the optometry statutes.
Previously, BOKEX had a malpractice reporting requirement similar to the
Board of Optometry. In 1982 the insurance code was amended to require the
Department of Insurance to obtain reports of malpractice claims and
settlements from insurers and forward the information on to BCMEX. This
allows the Department of Insurance clear authority t o penal ize companies
who do not report. Furthermore, the law requires EOFlEX t o review
malpractice reports and determine if licensees violated any statutes or
/
rul es.
CONCLUSION
A1 though the optometry statutes require insurance companies to report any
malpractice claim filed or settlements paid for any licensed optometrist
i n Arizona, the statutes do not clearly assign enforcement responsibil i ty
or direct the Board i n using the inforration. Clearly designating the
Department of Insurance as the agency r. esponsible for obtaining
malpractice reports and clarifying the Board's use of the reports would
improve the Board's abil i ty to obtain essential information about the
competence of optometrists practicing i n Arizona.
1. The Legislature should consider amending A. R. S. S20- 1742 to a)
require insurance companies to report ma1 practice cl aims and
settlements against opton~ etrists to the Department of Insurance,
and b ) require the Department of Insurance to forward a1 1 such
reports to the Board of Optometry.
2. The Legislature shoul d consider amending A. R. S. $ 32- 1 745 to
d i r e c t t h e Board of Optometry to investigate reports of
ma1 practice clainrs and settlements against optometrists i n a
manner similar to that of the Board of Medical Examiners. This
change would require the Eoard to determine i f violations of
optometry statutes, rules and regulations have occurred.
OTHER PERTINENT INFORFATION
The Board of Optometry has not prepared an annual report for the Governor
since 1981. By statute, the Board i s required to submit an annual report
on the Board's accomplishments and finances for the year. This has not
been done recently and, as of January 31 , 1964, there were no plans to
compl ete one.
AUDITOR GENERAL COMt4ENT
The following response from the Arizona Board o f Optometry contains
statments about weighting and grading the Board's examination t h a t require
additional comment.
Weighting - On page two o f i t s response the Board equates weighting
questions with curving examination scores. Weighting refers t o the
procedure of ranking questions or groups o f questions according t o t h e i r
re1 a t i ve importance t o competent practice. Weighting takes pl ace before
an examination i s given and does not change the passing grade. Curving,
on the other hand, adjusts examination scores t o a normal d i s t r i b u t i o n
curve after grading. As a r e s u l t , curving, which i s prohibited by law,
does change the level o f competency necessary t o achieve a passing grade.
Grading - On page three o f i t s response the Board refers to a 1979
Legi s l a t i ve Counci 1 Memorandum supporting i t s i n t e r p r e t a t i o n o f A. R. S.
$ 32- 1724. This section was revised by the Legislature, e f f e c t i v e i n
1980. The meniorandum used by the Auditor General i s based on the current
1 aw.
Arizona State Board of Optometry
1645 W. Jefferson
Phoenix, AZ 85007
March 22, 1984
Mr. Douglas Norton
A u d i t o r General
111 W. Monroe, S u i t e 600
Phoeni x AZ 85003
Re: Optometry Board - Sunset Audit
Dear M r . Norton:
Following i s the Board's response t o the recent Sunset a u d i t o f the Board of
Optometry:
SUMMARY
1. The judgment t h a t t h e State Optometric examination i s inadequate i s
an assumption based on hypothesis and opinion, not f a c t .
2. Procedures used i n the examination are i n accordance w i t h the l e g a l
requirements and have caused no e r r o r i n judgment o f competency.
3. The Board has determined the s k i l l s it believes t o be necessary and has
used t h e p a s s l f a i l c u t o f f p o i n t s required by law.
4. The a u d i t i s i n e r r o r i n t h e i n t e r p r e t a t i o n o f A. R. S. 32- 1724. This
s t a t u t e and the procedures p e r t a i n i n g t h e r e t o were reviewed by L e g i s l a t i v e
Council d u r i n g the 1979 performance a u d i t and were not found wanting.
5. Some o f the s l i d e s used on - one examination were o f poor q u a l i t y and were
obtained from the U n i v e r s i t y of A r i z o n a C o l l e g e o f Pledici ne, Department of
Ophthalmology, upon which the Board f e l t it could r e l y . The Board adjusted t h e
scores o f the examination when it discovered t h i s f a c t so t h a t no a p p l i c a n t
f a i l e d on t h i s account.
6. Requiring a1 1 a p p l i c a n t s t o s u c c e s s f u l l y complete t h e NBEO examination
could present problems f o r those appl i c a n t s who completed the NBEO examination
p r i o r t o i t s meeting present n a t i o n a l standards.
7. The Board has no a u t h o r i t y over the o f f i c e o f the Attorney General i n
m o n i t o r i n g - the review o f l e g a l documents.
8. The Board has known since August 1982 the requirements f o r a f i s c a l impact
statement. However, it has not had the resources t o prepare such a statement
and t h e Rules apparently cannot be processed w i t h o u t one. The absence of
Rules has not 1 i m i t e d the Board's enforcement a c t i v i t i e s .
FINDING I: EXAMINATIONS
Exam Content
The Arizona examination adequately represents the scope and depth o f knowledge
required f o r competent optometric practice. The Board does not pretend t h a t it
i s composed o f psychometricians, those persons whose s c a r c i t y i s renowned; but,
assisted by the knowledge and experience o f about twenty- five h i g h l y competent
p r a c t i t i o n e r s some of whom are educators, teaching professionals from the
Colleges o f Medicine and the Colleges o f Optometry, the Board developed what it
believes t o be examinations designed t o t e s t competency i n the p r a c t i c e o f
optometry. The law requires an examination be given i n the Phoenix area. A
National examination i s unavailable t o be given i n the Phoenix area. The NBEO
examination i s given only i n the u n i v e r s i t i e s . I n order t o meet i t s mandate,
the Board has no choice except t o construct an examination which, t o the best
o f i t s a b i l i t y and knowledge, meets the requirements under the law.
I n f o l l o w i n g i t s r o l e o f p r o t e c t i n g the p u b l i c from incompetent p r a c t i t i o n e r s ,
one o f the r e s p o n s i b i l i t i e s o f the Board i s t o prepare and administer w r i t t e n
and p r a c t i c a l examinations which should be desi gned t o i d e n t i f y applicants who
have not demonstrated a l e v e l o f knowledge f o r entry i n t o the p r a c t i c e of
optometry. Graduation from an accredited program and successful performance on
the Board's examinations provides the needed confidence t o the Board t h a t it i s
meeting i t s l i c e n s i n g r e s p o n s i b i l i t i e s .
I n developing the examination contents, the Board has followed accepted
guide1 i nes used t o measure an appl i c a n t ' s fundamental knowledge o f the
s c i e n t i f i c p r i n c i p l e s upon which optometric p r a c t i c e i s based; i. e. t o measure
t h e a p p l i c a n t ' s a b i l i t y t o apply t h a t knowledge i n the prevention, detection,
diagnosis, management and treatment o f c l i n i c a l conditions w i t h i n the scope o f
optometri c p r a c t i c e ; and, through the Board's p r a c t i c a l examination, t o measure
t h e a p p l i c a n t ' s c l i n i c a l judgment and a b i l i t y t o i n t e g r a t e basic and c l i n i c a l
science knowledge through c l i n i c a l examination o f actual patients.
Weighting
The Board d i d not weight questions w i t h i n an examination p a r t because it f e l t
t h a t might be tantamount t o " curving" the examination which it i s expressly
forbidden t o do.
The issue of whether or not t o average NBEO scores i n t o the pathology s l i d e and
p r a c t i c a l exam was brought f o r t h under an appeal by an examinee a f t e r the 1982
examination. This matter was discussed at length w i t h Board counsel and the
Board was advised t h a t it was d i s c r e t i o n a r y w i t h the Board dnd t h a t e i t h e r
method would be appropriate. It was f e l t t h a t it was not d i s c r i m i n a t o r y t o
e l e c t not t o average the NBEO scores i n t o the Board administered sections
because every applicant had the equal opportunity t o take the e n t i r e Board
administered examination at no a d d i t i o n a l cost and the choice was up t o the
applicant i f he wished t o forego the board administered exam. Since the Board
grading i s not curved and the NBEO examination scoring i s curved, the Board
believed it i s i n e q u i t a b l e t o those t a k i n g the w r i t t e n p o r t i o n o f the
examinatton f o r the Board t o use curved scores i n i t s evaluation. I n the eyes
o f some o f the Board members it even appeared t o be i l l e g a l t o t r e a t curved
scores the same as non- curved. The Board f e e l s i t s decision was most
appropriate.
P a s s l f a i l C u t o f f s
P a s s l f a i l c u t o f f scores are based on present law: 50% score on each p a r t , 75%
on the whole examination. The Board has s t r i c t l y adhered t o these c r i t e r i a .
Grading
The a u d i t quotes: " To receive a passing grade on a w r i t t e n examination
administered by t h e Board, an a p p l i c a n t must make a grade o f not less than
s e v e n t y - f i ve percent on the whole examination . . ." ( Board emphasis added)
Webster's d i c t i o n a r y defines the a d j e c t i v e " whole" t o mean:
" c o n t a i n i n g a l l the elements or p a r t s ; e n t i r e ; complete; not d i v i d e d
up; i n a s i n g l e u n i t , c o n s t i t u t i n g t h e e n t i r e amount, extent, number, etc."
The a u d i t i n t e r p r e t a t i o n o f A. R. S. Section 32- 1724. C t h e r e f o r e i s a r b i t r a r y and
erroneous and the twenty- eight o p t o m e t r i s t s d i d indeed pass t h e whole
examination w i t h a grade o f a t l e a s t 75%.
When, i n laws 1979, the word " w r i t t e n " was removed from Section 32- 1724,
Arizona L e g i s l a t i v e Counci 1, i n response t o the A u d i t o r General ' s i n q u i ry
stated:. . . " It appears then t h a t the optometry examination could c o n s i s t o f
an o r a l o r p r a c t i c a l examination as well as a w r i t t e n examination. However,
the requirement s t i l l remains t h a t , i n order t o pass the examination, an
a p p l i c a n t must r e c e i v e a grade o f not less than 75% i n each subject." ( 75% i n
each subject was t h e requirement a t t h a t time.)
This o p i n i o n t r e a t e d the p r a c t i c a l and o r a l , i f the Board e l e c t e d t o give one
o r both, as p a r t s o f the " whole" examination. This language appears i n the
present Section 32- 1724 and it would appear t h a t the c l i n i c a l exam and the
pathology s l i d e exam, which c o n s t i t u t e two p a r t s o f t h e p r a c t i c a l exam, must be
t r e a t e d as separate p a r t s o f the " whole examination", each p a r t r e q u i r i n g 50%
f o r passing w i t h an o v e r a l l score o f 75%. This i s e x a c t l y how t h e Board scored
these examinations and counsel f o r the Board r a i s e d no o b j e c t i o n s t o t h i s
procedure.
Use o f National Examination
The Board does not d i s p u t e the f a c t t h a t r e q u i r i n g t h e s a t i s f a c t o r y completion
o f the NBEO examination w i l l save it time and headaches. The money saved by
not g i v i n g t h e w r i t t e n exam amounts t o about $ 250. The cost o f the s l i d e exam
i s about $ 270 and, s i n c e p l a c e s are donated and p r o f e s s i o n a l time i s
volunteered, t h e r e a r e l i t t l e or no costs f o r the c l i n i c a l exam.
It must be p o i n t e d out t h a t t h e Board f e e l s NBEO examinations given
p r i o r t o them meeting present n a t i o n a l standards should not be accepted.
Therefore the Board has f e l t it incumbent t o accept NBEO scores which have been
a t t a i n e d a f t e r t h a t time but not before.
A change i n the law t o r e q u i r e the NBEO examination and t h e Board's r e f u s a l t o
accept i n f e r i o r NBEO examinations could r e s u l t i n some problems:
1. Optometrists who have graduated p r i o r t o the achievement o f NBEO exams
gaining n a t i o n a l acceptance may not have received adequate t e s t i n g f o r
competency.
2. Were the law t o be changed t o r e q u i r e the successful completion o f the
NBEO, it should be l i m i t e d t o those t a k i n g t h a t examination a f t e r t h e n a t i o n a l
acceptance o f the exam.
3. If it were l i m i t e d , and the Board could n o t g i v e w r i t t e n examinations,
t h e r e may be no means by which an o p t o m e t r i s t could receive l i c e n s u r e who d i d
not meet t h a t c r i t e r i a .
1. Reciprocal l i c e n s u r e i s l i m i t e d t o :
a. Optometrists who have been d u l y l i c e n s e d and have
p r a c t i c e d f o u r out o f t h e l a s t f i v e years i n t h e s t a t e from which t h e y a r e
applying.
b. Optometrists who apply from a s t a t e whose l i c e n s i n g
requirements are equal o r more s t r i n g e n t than those o f t h i s State.
c. Optometrists who apply from a s t a t e which r e c i p r o c a t e s
w i t h t h e S t a t e o f Arizona.
2. Arizona r e c i p r o c a t e s w i t h eighteen s t a t e s a t the present time.
3. Eighteen o t h e r s t a t e s would q u a l i f y f o r r e c i p r o c i t y except t h a t they do not
r e c i p r o c a t e w i t h Arizona.
4. Fourteen s t a t e s do not q u a l i f y f o r r e c i p r o c i t y because t h e i r l i c e n s i n g
standards are less s t r i n g e n t t h a n A r i z o n a ' s .
. The f o l l owing persons coul d n o t r e c e i ve r e c i p r o c i t y :
a. Dr. X who has graduated from a f o r e i g n u n i v e r s i t y .
b. Dr. Z who has p r a c t i c e d optometry f o r twenty years but d i d
not p r a c t i c e i n one r e c i p r o c a l s t a t e f o r four out o f the past f i v e years.
c. Dr. Y who i s from New York because t h a t s t a t e does not
r e c i p r o c a t e w i t h Arizona.
d. Dr. W who has p r a c t i c e d i n I l l i n o i s f o r the past f i f t e e n
years, because I l l i n o i s ' standards are less t h a n t h o s e o f Arizona.
e. Dr. V who i s d u l y l i c e n s e d i n another s t a t e but has p r a c t i c e d
i n A f r i c a f o r the past t h r e e years as a missionary.
Under c u r r e n t law, except f o r Dr. X, a1 1 o f the above o p t o m e t r i s t s would be
e l i g i b l e t o take a Board administered examination upon the successful
completion o f a course i n ocular pharmacology.
Dr. X would not q u a l i f y because he graduated from a f o r e i g n
u n i v e r s i t y and t h e r e i s no p r o v i s i o n f o r him t o be t e s t e d a t a l l . Except f o r
one uni v e r s i ty i n Canada, f o r e i gn u n i v e r s i t i e s a r e n o t accredited.
S l i d e Examination
The Board does not d i s p u t e t h a t some o f the s l i d e s used i n the 1983 Board
examination were o f poor q u a l i t y . The Board had s l i d e s a v a i l a b l e i n i t s f i l e s
which met a l l the necessary q u a l i f i c a t i o n s o f t e s t i n g s l i d e s , but which had
been used i n the previous three examinations. The problem w i t h the 1983 exam
s l i d e s turned out t o be t h a t they were teaching s l i d e s r a t h e r than t e s t i n g
s l i d e s . They were provided by the U n i v e r s i t y o f Arizona and i t s p o l i c y i s t o
lend them f o r t h r e e days only. The Board examination i s three days long;
hence, the Board had no way t o review t h e s l i d e s p r i o r t o use. This was an
unfortunate s i n g l e occurrence. When discovered, the poor q u a l i t y s l i d e s were
s t r i c k e n from the examination and the exam papers were regraded. The Board was
aware t h e r e might be a problem, and the request t o produce the s l i d e s was made
by the President o f the Board long before an appeal was received.
Concl usi on
The Board i s i n t o t a l disagreement w i t h the conclusions set f o r t h under t h i s
f i n d i n g .
COMMENTS ON AUDIT RECOMMENDATIONS:
1. The Board r e a l i z e s psychometric expertise e x i s t s but, because o f budget
r e s t r i c t i o n s has not been able t o adequately u t i l i z e these budget l i m i t a t i o n s .
2. Concerning the requi rement f o r NBEO examination, caution i s advised
concerning those optometrists who would not q u a l i f y f o r licensure under t h i s
1 egal requi rement.
3. Concerning the improvement o f the pathology s l i d e examination, the Board
f e e l s a l l the recommendations i n t h i s paragraph have merit and should be
considered.
4. Concerning the improvement of the c l i n i c a l examination upon a p a t i e n t , t h e
Board f e e l s a l l the recommendations i n t h i s paragraph have merit, should be
considered and makes special note o f section e.:
The I n t e r n a t i o n a l Boards o f Examiners i n Optometry ( IAB) i s the e n t i t y
engaged i n the development of a regional c l i n i c a l examination. The Board,
which belongs t o the IAB has f e l t the need f o r i t s expert advice. IAB
meetings are held once each year, generally out o f state. Each year, t h i s
Board has sought l e g i s l a t i v e appropriation t o attend these meetings.
However, the budget r e s t r a i n t s of the past several years have prevented the
Board from a c t i v e l y attending these most valuable sessions due t o the non-existence
o f out- of- state t r a v e l funds.
FINDING 11: CONSUMER COMPLAINTS/ LEGAL NOTICES
Probl ems i n Processi ng Legal Orders
There are a number o f problems t h a t the Board has encountered:
The Board has d e a l t w i t h 121 consumer complaints since January 1981. The Board
considers t h i s area i t s most important function, i . e. the p r o t e c t i o n of the
p u b l i c health and welfare. Since the inception o f the new law i n July 1980 it
has continued t o i n i t i a t e and revise i t s procedures t o b e t t e r resolve these
complaints. However, there are factors outside the control of t h i s Board
which have made it d i f f i c u l t and at times impossible t o resolve a l l complaints.
1. The State Boards' O f f i c e presently i s not s u f f i c i e n t l y funded t o provide
t h e h i g h l e v e l and q u a n t i t y o f a d m i n i s t r a t i v e services demanded by a l l the
Boards i n t h a t o f f i c e .
2. The Attorney General's o f f i c e , p a r t i c u l a r l y the C i v i l Division, i s not
s u f f i c i e n t l y funded t o provide t h e q u a n t i t y o f legal services which would meet
the Boards' needs.
3. The Board's income does not enable them t o pay f o r the l e v e l and quantity
of admi n i s t r a t i ve services it needs.
4. The s t a t u t o r y requirement f o r informal i n t e r v i e w i n every case before
proceeding t o formal hearing i s i n e f f i c i e n t and c o s t l y t o the State, the Board,
and the licensee.
Admini s t r a t i ve Services
The complaint procedure i s thus: A complaint i s received, logged and
i n v e s t i g a t e d . I f cause i s found, an informal i n t e r v i e w i s held. With r a r e
exception, immediately f o l l o w i n g an informal i n t e r v i e w , the Board makes
f i n d i n g s and e i t h e r moves t o ( a) dismiss, ( b) go t o formal hearing o r ( c ) take
remedial a c t i o n by way o f a l e t t e r o f concern, consent agreement o r censure
and/ or probation order. During t h a t sane time, the Board would c i t e the
v i o l a t i o n s , i f any, i n general and/ or t e c h n i c a l terms ( as opposed t o l e g a l
terms) and i n d i c a t e the laws it believed were v i o l a t e d and e s t a b l i s h i t s order
i n terms o f censure, probation o r both. 0
T h i s i n f o r m a t i o n i s recorded and, subsequently, the Board o f f i c e i s expected
t o d r a f t t h e l e g a l order f o r counsel's review.
The s t a f f o f the S t a t e Boards' O f f i c e ( SBO) serves t e n r e g u l a t o r y agencies.
This o f f i c e has s i x p o s i t i o n s assigned t o it. U n t i l very r e c e n t l y , t h a t o f f i c e
employed d manager, a d m i n i s t r a t i v e a s s i s t a n t , an a d m i n i s t r a t i v e secretary, an 0
accounting c l e r k and a t y p i s t . A s e c r e t a r y p o s i t i o n remained vacant f o r over a
year although it was f i l l e d by a temporary d u r i n g most o f t h i s time. This
o f f i c e i s expected t o handle a l l the a d m i n i s t r a t i v e and c l e r i c a l concerns o f
ten l i c e n s i n g agencies. I n a d d i t i o n t o s i x sunset a u d i t s and f i v e f i n a n c i a l
a u d i t s performed d u r i n g the year, a t which times the personnel a r e r e q u i r e d
t o p r o v i d e records and i n f o r m a t i o n t o the a u d i t o r s , nine o f the boards
submitted l e g i s l a t i o n . The SBO was d i r e c t l y involved i n four major pieces of
l e g i s l a t i o n stemming from the sunset a u d i t s because they included
a d m i n i s t r a t i v e procedures and/ or 1 i c e n s i n g which d i r e c t l y a f f e c t s t h e o f f i c e .
It was a l s o i n v o l v e d i n t h r e e o t h e r pieces o f l e g i s l a t i o n a t the request o f the
boards involved. F i v e o f the Boards are i n v o l v e d w i t h r u l e s promulgation. a
The r e o r g a n i z a t i o n o f the Department o f A d m i n i s t r a t i o n has r e s u l t e d i n some
upgrading o f t h i s o f f i c e since August 1983 and a review i s c u r r e n t l y i n
progress t o determine i f f u r t h e r adjustments are warranted. Present personnel
c o n s i s t o f the manager, t h r e e a d m i n i s t r a t i v e s e c r e t a r i e s and an accounting
c l e r k . One p o s i t i o n i s vacant. Two others were f i l l e d o n l y r e c e n t l y .
O f the f i v e p o s i t i o n s p r e s e n t l y f i l l e d , two persons are handling t h r e e boards
each, one i s handling the accounting f o r a l l ten boards and administrates
another board. One i s handling the d r a f t i n g o f a l l l e g a l documents, some
r u l e s , fee impact statements and a d m i n i s t r a t i o n f o r one Board and the manager
i s t r y i n g t o make it a l l work i n a d d i t i o n t o preparing budgets, l e g i s l a t i o n ,
appearing before l e g i s l a t i v e committees, i n t e r v i e w i n g w i t h a u d i t o r s , t o t a l l y
admini s t r a t i n g one Board and p a r t i a l l y a d m i n i s t r a t i n g another.
Each Board as it has undergone sunset a u d i t has been mandated t o perform more
d e t a i l e d , more compl i c a t e d f u n c t i o n s than before and a1 1 the boards have
continued t o increase t h e i r 1 i c e n s i n g enrol lment each year. The Attorney
General's o f f i c e has repeatedly made it known t h a t it i s t h e i r f u n c t i o n t o
advise t h e Boards, not perform such functions as t h e i n i t i a l development o f
l e g a l orders, n o t i c e s , etc. Therefore, e i t h e r the Board members o r s t a f f are
charged w i t h l e g a l matters which they are not equipped t o handle e i t h e r through
lack o f l e g a l e x p e r t i s e or too severe time r e s t r i c t i o n s o r both.
U n t i l such time as the Boards can afford t o develop the s t a f f of the SBO t o
i ncl ude a d d i t i o n a l personnel w i t h speci a1 t r a i n i n g and know1 edge such as 1 egal
e x p e r t i s e , or h i r e o u t s i d e assistance f o r special p r o j e c t s , the SBO must
continue t o deal w i t h matters f o r each Board i n as f a i r and i m p a r t i a l manner as
p o s s i b l e so t h a t a1 1 are served as t h e i r p r i o r i t y needs r e q u i r e and as time
permits.
One o f the reasons f o r delay i n preparation o f legal orders i s lack o f guidance
i n the development o f what l e g a l l y c o n s t i t u t e s t h e i r makeup. There are no set
forms avai 1 able. There i s no standardization. Every attorney has a d i f f e r e n t
way o f s t a t i n g them. I f there were standardized legal forms such as informal
i n t e r v i e w notices, formal hearing notices, censure orders, suspension and
revocation orders, consent orders, etc., the SBO could b e t t e r a s s i s t t h e Boards
i n t h e i r preparation.
Recently, t h i s Board has recei ved guidance from counsel who has recommended
time saving complaint procedures and standardized forms which, i f adopted by
other Boards i n the o f f i c e , would go a l o n g way toward resolving t h i s problem,
i f the other Boards i n the o f f i c e could accept these innovations.
Confusion i n a d m i n i s t r a t i v e l e g a l procedures where m u l t i p l e agencies are served
by one o f f i c e i s the r e s u l t o f inconsistencies i n the statutes concerning
i n v e s t i g a t i v e and hearing procedures. There seems t o be no l o g i c a l reason why
many o f these l i c e n s i n g agencies could not operate under standardized
requi rements i f those statutes were addressed e i t h e r i n d i v i dual l y or i n an
omnibus type o f l e g i s l a t i o n .
Leaal Services
The C i v i 1 D i v i s i o n o f the Attorney General ' s O f f i c e which serves as advisor t o
a1 1 except a very few agencies i n the State i s expected t o provide such service
w i t h i n s u f f i c i e n t numbers o f Assistant Attorneys General . Some o f these
attorneys are i n d i v i d u a l l y providing services t o as many as seven l i c e n s i n g
agencies at one time. As agencies are reviewed and new statutes are enacted,
workload often doubles and those services are spread even thinner. I n
a d d i t i o n t o advising State agencies, these same attorneys are required t o
engage i n any c o u r t a c t i o n s which may be p r e c i p i t a t e d by the actions o f the
agencies such as appeals t o Superior or Appellate Court. Such s e r v i c e i n v o l v e s
much more than j u s t appearing i n court. Most o f the time i s spent i n the
creation and f i l i n g o f l e g a l b r i e f s , responding t o challenges, etc. An
increase o f funding t o the C i v i l D i v i s i o n of the Attorney General's O f f i c e t o
allow them t o h i r e a d d i t i o n a l attorneys t o serve State agencies would r e s u l t i n
more 1 egal services.
Board Funding
I n 1979/ 80, the Board of Optometry consisting o f three members spent $ 2900 on
personal services and $ 1500 on t r a v e l i n state. This represented about 25% of
i t s funding. About 50% more was spent on a d m i n i s t r a t i o n and only $ 100 on
invest i gat i ons.
The 83/ 84 budget provides $ 1500 for personal services f o r the six members of
the Board and a t o t a l of $ 1800 f o r t r a v e l i n c l u d i n g t r a v e l f o r the Board's
i nvesti gator.
Board a d m i n i s t r a t i v e costs have increased from $ 17,700 i n 1981182 t o $ 23,700
i n 1983184, an increase o f $ 6000. The appropriated budget f o r 198111982 was
$ 51,900. The number o f licensees has increased, the Board i s required t o
i n v e s t i g a t e a1 l complaints and a d m i n i s t r a t i v e costs have r i s e n greatly.
iiowever, - the Board budget f o r 83/ 84 i s $ 43,700.
The present budget only provides s u f f i c i e n t funds for the Board t o meet s i x
times, i t s s t a t u t o r y mandate. The examination alone takes three days. This
leaves funding f o r t h r e e a d d i t i o n a l meetings during the e n t i r e year. Yet, the
consumer complaints continue t o be recei ved.
The Board's a b i l i t y t o p r o p e r l y i n v e s t i g a t e consumer complaints i s s e r i o u s l y
impeded by lack o f funds f o r i n v e s t i g a t o r t r a v e l .
There i s no money a l l o c a t e d t o purchase services i n the event the Board wishes
t o hold i n f o r m a l i n t e r v i e w and p a r t i c u l a r l y formal hearing. Formal hearing
requires such services as expert witnesses, t r a v e l costs f o r witnesses, court
r e p o r t e r s and the purchase o f completed t r a n s c r i p t s .
Informal I n t e r v i e w Requi rement
The requi rement f o r i n f o r m a l i n t e r v i e w p r i o r t o conducting i n f o r m a l hearings i s
c o s t l y and delays the r e s o l u t i o n o f serious o r m u l t i p l e complaints.
The Board has the a u t h o r i t y t o take minor d i s c i p l i n a r y a c t i o n such as censure
o r probation a f t e r i n f o r m a l i n t e r v i e w without going t o a formal hearing.
However, t h e Board may not go d i r e c t l y t o formal hearing i n those cases i n
which t h e a l l e g a t i o n s , if proved, would r e s u l t i n more serious d i s c i p l i n a r y
a c t i o n such as r e v o c a t i o n or suspension. This i s more c o s t l y i n terms o f
r e q u i r i n g more meeting dates, more witness fees, more c o u r t r e p o r t i n g expenses,
etc. It delays the f i n a l r e s o l u t i o n o f the complaint. It i s not i n the best
i n t e r e s t o f t h e p u b l i c , the Board o r the licensee t o be required t o go through
both procedures. It a l s o impacts on the o f f i c e o f the Attorney General and i s
a major inconvenience and expense t o witnesses who are needed during both
phases o f t h i s d i s c i p l i nary process.
COMMENTS ON AUDIT RECOMMENDATIONS
1. The Board a1 ready does a1 1 w i t h i n i t s capacity t o expedite l e g a l orders.
2. The Board i s i n complete agreement w i t h t h i s recommendation f o r amendment
o f A. R. S. Section 32- 1744. B t o allow the Board t o bypass i n f o r m a l i n t e r v i e w
when appropriate.
FINDING I11 - RULES
Lack o f Rules i n C r i t i c a l Areas
Immediately a f t e r the new laws o f 1980 went i n t o e f f e c t , t h e Board o f Optometry
began the process o f r u l e s promulgation. It h i r e d a law c l e r k t o prepare a
d r a f t o f proposed r u l e s so the Board would have a s t a r t i n g p o i n t . The d r a f t i n g
and r e d r a f t i n g continued f o r well over a year and by t h a t time the new 1982
laws were i n e f f e c t . The scope o f optometric p r a c t i c e was expanded i n January
1982 t o i n c l u d e the use o f d i a g n o s t i c pharmaceutical agents. The law i s r a t h e r
e x p l i c i t as t o the type o f drugs and t h e i r l i m i t e d use. The Rules were t o
serve as g u i d e l i n e s t o enhance and define t h e i r use and the recording o f t h a t
use i n p r a c t i c e . Present optometry r u l e s already d e f i n e what types of records
s h a l l be kept. They do not however s p e c i f i c a l l y r e l a t e t o recordkeeping where
t h e drugs are concerned. 0
I n August 1982, the Governor's Regulatory Review Council expanded i t s
requirements f o r s u b m i t t a l of r u l e s f o r t h e i r review. They now r e q u i r e a
s p e c i f i c d e t a i l e d f i s c a l impact statement r e l a t i n g t o each r u l e and a s p e c i f i c
set o f questions r e l a t i v e t h e r e t o . Unfortunately, the Board had n e i t h e r the
e x p e r t i s e n o r t i m e t o prepare such a d e t a i l e d r e p o r t on i t s t h i r t y - f o u r d r a f t e d
r u l e s . The r e p o r t i t s e l f would r e q u i r e extensive research time and would have
t o be d r a f t e d i n language r e f l e c t i n g answers t o very s p e c i f i c a n a l y t i c a l
questions. Refer t o Addendum A attached hereto.
The r e p o r t would consume so much research and p r e p a r a t i o n time t h a t it was a
task t h a t the personnel i n t h e S t a t e Boards' O f f i c e c o u l d n o t accomplish and
s t i l l f a i r l y serve the o t h e r n i n e boards f o r which it had r e s p o n s i b i l i t y .
The o f f i c e did, however, research the r e l a t i v e scope o f what would be required
t o produce such a document. It used as a p a r a l l e l , a t h i r t y - f o u r page document
on seventeen r u l e s produced by another r e g u l a t o r y agency. I n speaking t o a
r e p r e s e n t a t i v e from t h a t Board f a m i l i a r w i t h i t s cost f o r a s i m i l a r p r o j e c t ,
t h a t person agreed it would take a t l e a s t $ 2000 i n research and p r e p a r a t i o n
time, not t o mention the t i m e r e q u i r e d t o type and copy t h i s document. ( Seven
copies a r e r e q u i r e d t o be submitted t o t h e Council) The Optometry Board
proposed r u l e s c o n s i s t o f t h i r t y - f o u r separate r u l e s , each o f which must be
submitted w i t h a separate impact statement r e l a t i n g t o it.
The Board o f f i c e contacted the Executive Budget O f f i c e w i t h reference t o
assistance i n c o n s t r u c t i n g an impact statement and were t o l d t h a t they would
a s s i s t a f t e r a d r a f t c o n s t r u c t i o n was complete but t h a t they d i d not have the
time or resources t o d r a f t it themselves. P r i o r t o November 1983, the Board
d i d n o t c o n t a c t the Counci 1 d i r e c t l y and f o r m a l l y as s t a t e d because it seemed a
f u t i l e e f f o r t . That body i s not funded and has no s t a f f o f i t s own. How then,
was the Board t o f e e l t h a t it could a s s i s t it i n the p r e p a r a t i o n o f a lengthy,
d e t a i l e d statement. I t s only manner o f assistance would be t o waive the
requirement f o r a f i s c a l impact statement t h u s c i r c u m v e n t i n g i t s own i n v e n t i o n
and procedures. Circumvention o f t h i s procedure could set a precedent which
might weaken i t s e n t i r e process. It i s suspected t h a t our request t o the
Chairman o f t h e Counci 1 which was p r e c i p i t a t e d by the p r e l i m i n a r y performance
a u d i t review, placed it i n j u s t such a dilemma t o which t h e r e may be no proper
response.
The Board has requested a supplemental a p p r o p r i a t i o n t o cover the cost o f
preparing t h i s f i s c a l impact statement.
COMMENTS ON AUDIT RECOMMENDATION
The Board agrees t h a t t h e Rules should be promulgated as soon as p o s s i b l e and,
i f i t s supplemental a p p r o p r i a t i o n i s approved, o u t s i d e h e l p w i l l be h i r e d t o
prepare the f i s c a l impact statement.
FINDING I V - MALPRACTICE CLAIMS
The Board i s i n agreement w i t h t h e f i n d i n g and recommendations i n t h i s section.
This Board adds i t s recommendation t h a t t h e l e g i s l a t u r e consider amending the
optometry s t a t u t e s t o r e q u i r e an o p t o m e t r i s t a g a i n s t whom a m a l p r a c t i c e c l a i m
has been made t o r e p o r t such i n f o r m a t i o n t o the Board o f Optometry.
OTHER PERTINENT INFORMATION
The Board's budget l i m i t s i t s enforcement and follow- up a c t i v i t i e s t o a l a r g e
degree except i n areas o f c r i t i c a l concern, i . e., the p r o t e c t i o n of the p u b l i c
h e a l t h and welfare. I t s l i m i t e d time and resources are devoted e n t i r e l y t o
t h i s end. The requirement i n the law f o r a r e p o r t t o t h e Governor
should be deleted i n t h a t a l l the i n f o r m a t i o n r e l a t i v e t o the actions and
l i c e n s i n g by t h i s Board i s r e a d i l y a v a i l a b l e a t t h e S t a t e Boards' Office
whereas the Governor's r e p o r t consists of l i t t l e more than a f i n a n c i a l
statement and a b r i e f recap o f events. It would be much more b e n e f i c i a l t o the
Arizona c i t i z e n i f the Board were funded so t h a t it could p r i n t a consumer
brochure i n f o r m i n g t h e p u b l i c o f i t s r i g h t s , options and r e s p o n s i b i l i t i e s as it
p e r t a i n s t o t h e optometric p r o f e s s i o n i n Arizona or a n e w s l e t t e r t o the
licensees i n the State r e p o r t i n g on the Board's d i s c i p l i n a r y actions and
p r o v i d i n g a v e h i c l e t o i n f o r m them of changes i n Board p o l i c y and procedure,
problems encountered through the complaint process, etc.
It should be noted t h a t t h i s requirement f o r a report t o the Governor i s a
carryover from the days when State agencies were not accessible t o the p u b l i c
and the only source o f information was contained i n the Governor's o f f i c e .
Many of the Boards and Commissions i n t h e S t a t e do not have t h i s requirement
and many are d e l e t i n g it.
CLOSING STATEMENT
When appropriations were cut back i n recent years, a l l s t a t e agencies suffered
t o the extent t h a t o f t e n essential services were trimmed. It i s d i f f i c u l t f o r
any agency w i t h severe s t a f f shortages t o meet the increasing
demand placed upon them by t h e p u b l i c and the law. The Auditor
General's report obviously approaches t h e i r review from the standpoint of the
i d e a l . It i s v i r t u a l l y impossible t o achieve the i d e a l under the severe budget
r e s t r a i n t s prevalent today. It should be recognized by the pub1 i c and the
Auditor General t h a t t h e i d e a l costs a great deal of money. It i s the Board's
duty t o regulate i t s profession t o the best o f i t s a b i l i t y whenever possible
and t o use i t s resources i n the most economical manner possible. It i s
doubtful anyone could question i t s i n t e n t but they might cast t h e i r eyes on the
Board's pocketbook o r l a c k t h e r e o f .
Sincerely ,
George Sanchez, O. D.
President
GOVERNOR'S REGULATORY REVIEW COUNCIL
GUIDELINES
INSTRUCTIONS:
The information o u t l i n e d below should be submitted i n l e t t e r form and
addressed t o the Chairman o f the Regulatory Review Council. This
information must be c l e a r l y labeled ( e. g., Section l. a., Section II. b.,
etc.) and furnished for each proposed r u l e change or new r u l e .
I)
I. BRIEFLY DESCRIBE THE PURPOSE OF THE PROPOSED RULE:
( PLEASE COMPLETE BOTH " a" AND " b")
a. B r i e f l y explain why the proposed r u l e i s needed. I n p a r t i c u l a r ,
i d e n t i f y problem. If a new r u l e i s being proposed because a new law
was passed or an o l d law was changed, reference each applicable
section of each applicable s t a t e o r federal law.
. b. Summarize what tne proposed r u l e would accompli sh. What a l t e r n a t i v e s
were considered? Why i s t h i s the most e f f e c t i v e s o l u t i o n ?
11. IDENTIFY THE COSTS AND BENEFITS OF THE DIRECT CONSEQUENCES OF THE
PROPOSED ROLE AND ESTIMATE APPROXIMATE DOLLAR VALUE OF THE COSTS AND
BENEFITS FOR :*
a. Your agency ( be sure t o l i s t changes i n i n t e r n a l operating procedures
which would be required by the proposed r u l e ) .
b. Other p u b l i c agencies; e. g., s t a t e , county, c i t y o r town, community
college d i s t r i c t , o r school d i s t r i c t agencies.
c. P r i v a t e e n t i t i e s ( include l a r g e businesses, small businesses, and
n o n p r o f i t organizations).
d. Consumer o f the product or service.
* NOTE: D i r e c t consequences must i n v o l v e increased costs, decreased
costs, increased revenues o r decreased revenues. When completing
II. a., b., c., and d . , please use t h e f o l l o w i n g format:
D o l l a r Value o f Do1 1 a r Value o f
Description of Increased Cost/ Decreased Cost/
Consequences Decreased Revenue Increased Revenue
111. IDEMTIFY THE COSTS AND EENEFITS OF INDIRECT CONSEOUEF'CES OF THE PROPOSED
RULE :
a. L i s t the consequences f o r your agency. ( Be sure t o l i s t changes i n
i n t e r n a l operation procedures which would be r e q u i r e d by the proposed
r u l e . )
b. L i s t the consequences f o r other p u b l i c agencies; e. g., state, county,
c i t y o r town, communi t y col lege d i s t r i c t , o r school d i s t r i c t agencies.
c. L i s t the consequences f o r p r i v a t e agencies ( include botn p r o f i t and
n o n p r o f i t o r g a n i z a t i o n s ) .
d. L i s t t h e consequences for the public.
NOTE: When developing a 1 i s t o f i n d i r e c t consequsnces, the agency
should ask i t s e l f t n e f o l l o w i n g questions:
1. W i l l the r u l e increase o r decrease cost o f the product o r service?
2. W i l l it change a v a i l a b i l i t y t o consumer?
3. Who u l t i m a t e l y pays the increased cost of the r u l e ?
4. Who u l t i m a t e l y b e n e f i t s from the r u l e ?
5. What i ncenti ves j d i s i ncenti ves are created by t h e r u l e ? 0
The Council recognizes t h a t these questions can he d i f f i c u l t t o answer
. p r e c i s e l y . However, the agency should make a good f a i t h e f f o r t t o
i d e n t i f y i f increased costs w i l l be absorbed by the regulated e n t i t y , or
passed on t o customers i n Arizona, o r passed on t o customers outside o f
Arizona. I n a d d i t i o n , the agency should i d e n t i f y whether d o l l a r e f f e c t
should be minimal or s u b s t a n t i a l .
0
Further, tne Council recognizes t h a t it i s equally d i f f i c u l t t o p r e c i s e l y
i d e n t i f y t h e u l t i m a t e b e n e f i c i a r i e s o f a r u l e . Agencies should, however,
attempt t o analyze the impact o f a proposed r u l e i n those terms. For
example, improved water q u a l i t y may cause more people t o boat and f i s h ,
which may cause more boats and f i s h i n g equipment t o be manufactured,
which may increase the demand f o r s t e e l , and so f o r t h . I n a d d i t i o n , a
r u l e which increases the p r i c e of one product may cause increased sales
o f s u b s t i t u t e products which, i n t u r n , may increase employment i n tnose
i n d u s t r i e s .
F i n a l l y , r u l e s may c r e a t e i n c e n t i v e s t o r e s o r t t o d i sreputable/ i 11 egal
practices. For example, i f a product i s taxed h e a v i l y , bootlegging and
b a r t e r may r e s u l t . The Council does not expect agenies t o quantify the
consequences o f i l l e g a l p r a c t i c e s unless it i s very confident tDat such
practices w i l l r e s u l t and w i l l have s i g n i f i c a n t impacts i n terms o f
increased costs, decreased revenues, decreased costs, or increased
revenues.
I V . The f o l l o w i n g information i s required per ARS 38 41- 1001, 41- 1002,
and 41- 2001.02 r e l a t i n g t o the impact o f proposed r u l e s on small
businesses. For the purpose of t h i s section, a small business i s defined
as a concern, i n c l u d i n g i t s a f f i l i a t e s , which i s independently owned and
operated, not dominant i n i t s f i e l d and which employs fewer than one
hundred f u l l - time employees or which had gross annual r e c e i p t s o f less
than four m i l l i o n d o l l a r s i n i t s l a s t f i s c a l year. For purposes o f a
s p e c i f i c r u l e , an agency may define small business t o include more
persons i f it f i n d s t h a t sucn a d e f i n i t i o n i s necessary t o adapt the r u l e
t o the needs and problems of small businesses and organizations.
a. Describe the types o f small businesses subject t o the proposed rule.
B r i e f l y describe the proposed r e p o r t i n g , bookkeeping, and other
procedures required f o r compliance w i t h the proposed r u l e and
describe the types o f professional s k i l l s necessary f o r compliance.
b. I d e n t i f y which of the f o l l o w i n g methods w i l l be u t i l i z e d t o reduce
the impact o f the proposed r u l e on small businesses.
1. E s t a b l i s h l e s s s t r i n g e n t compliance o r r e p o r t i n g requirements i n
the r u l e f o r small businesses.
2. E s t a b l i s h l e s s s t r i n g e n t schedules or deadlines i n the r u l e f o r
compliance o r r e p o r t i n g requirements f o r small businesses.
3, Consolidate o r s i m p l i f y t f i e r u l e ' s compliance o r r e p o r t i n g
requi rements f o r small businesses.
4. E s t a b l i s h performance standards f o r small businesses t o replace
design o r operational standards i n the r u l e .
5. Exempt small businesses from any or a l l requirements o f t h e r u l e .
If none o f the above methods are l e g a l or f e a s i b l e i n meeting t h e
s t a t u t o r y o b j e c t i v e s which are the basis o f the proposed r u l e , t h e agency
should so state.
V. FILING OF RULES.
1. Rules s h a l l be i n sucn form as necessary f o r f i l i n g w i t h the
Secretary - o f State.
2. An o r i g i n a l and s i x ( 6) copies o f the proposed r u l e s and r e l a t e d
material must be f i l e d a t l e a s t twenty ( 20) days p r i o r t o the
Counci 1 ' s meeting.
3. Rules must be accompanied by a statement o f approval from the agency
head, date approved and a name and phone number o f a person t o
contact f o r questions or t o e s t a b l i s h a time f o r appearance before
the Counci 1. No r u l e proposed w i l l be approved by the Council which
does not s a t i s f y the above requirements o f f i l i n g .
0
4. Rules are t o be f i l e d w i t h the Chairman o f the Governor's Regulatory
Review Counci 1, O f f i c e o f t h e D i r e c t o r , Department o f Administration,
Capitol Executive Tower, Room # 804, Phoenix, Arizona 85007.
August 10, 1982
APPENDIX
LEGISLATIVE COUNCIL OPINION ON
OPTOMETRY EXAblI NATION
M E M O
March 16, 1984
TO: Douglas R. Norton, Auditor General
FROM: Arizona Legislative Council
RE: Request for Research and Statutory Interpretation ( 0- 84- 1)
This memo is sent in response to a request made on your behalf by William
Thomson in a memo dated March 14, 1984.
FACT SITUATION:
The Arizona board of optometry examination statute, Arizona Revised Statutes
( A. R. S.) section 32- 1724, was enacted in 1980 and states:
32- 1724. Examination of applicants; time of examination
A. Licensing examinations shall be conducted and graded according
to rules and regulations prescribed by the board.
B. Applicants shall be given an examination on the subject matter
currently being taught in universities or colleges of optometry.
C. To receive a passing grade on a written examination administered
by the board, an applicant must make a grade of not less than seventy- five
per cent on the whole examination and not less than fifty per cent in any
one subject. The examination shall not be graded on a curve.
D. The board may accept a certificate issued by the national board
of examiners in optometry in lieu of the written portion of the board's
examination for licensure.
E. Examinations shall be held at least once each year in Phoenix and
at such other times and places as the board designates. Notice of
examination shall be given not less than sixty days prior to t h e d a t e of
examination. If an applicant is unable to take the examination and notifies
the board prior to t h e d a t e fixed for examination, the board may refund to
the applicant the application fee and may allow the applicant to take the
examination within one year.
The Arizona board of optometry ( board) has two examinations: a written
examination consisting of nine sections and a practical examination consisting of a
pathology examination and a patient examination. The board has required candidates
taking the board's written examination to receive fifty percent on each of nine written
examination sections and both practical examination sections and an average of
seventy- five percent or greater on all eleven examination sections, written and practical,
to receive a license. The nine sections of the board's written examination have not been
independently averaged since the law was enacted in 1980.
QUESTIONS PRESENTED:
I. Does A. R. S. section 32- 1724, subsection C require the board to compute
applicants' written examination scores independently and pass only those applicants who
have scored an average of seventy- five percent or more on the written examination?
2. Does the board's method of averaging written and practical examination
scores together comply with A. R. S. section 32- 1724, subsection C?
ANSWERS:
1. A. R. S. section 32- 1724, subsection C only concerns written
examinations. It states in part that:
C. To receive a passing grade on a written examination
administered by the board, an applicant must make a grade of not less
than seventy- five per cent on the whole examination and not less than
fifty per cent in any one subject. ( Emphasis added.)
" It is a fundamental rule of statutory construction that plain, clear and
unambiguous language of a statute is given that meaning unless impossible or
absurd consequences may result." Balestrieri v. Hartford Accident and Idemnity
Insurance Co., 112 Ariz. 160, 163, 540 P. 2d 126 ( 1975). A. R. S. section 32- 1724,
subsection C is clear and unambiguous and impossible or absurd consequences do
not result from the plain meaning of the statute.
In order t o pass a written examination administered by the board an
applicant is required to make a grade of a t least seventy- five percent on the
whole written examination and not less than fifty percent in any one subject on
the written examination. Since A. R. S. section 32- 1724, subsection C deals
exclusively with written examinations, an applicant's written examination scores
must be computed independently from practical examinations and only those
applicants who achieve a score of seventy- five percent or more on the whole
written examination and not less than fifty percent on any one subject on the written
examination pass the written examination.
2. No. The board is not precluded from requiring a practical examination ( see
A. R. S. section 32- 1724, subsection A), but ir cannos average the resuits of a practicai
examination with those of the written examination because of the clear meaning of A. R. S.
section 32- 1724, subsection C.
cc: William Thomson, Manager
Performance Audit Division