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Court bars N.Y. optometrists from performing ‘invasive’ procedures
A judge in New York has removed several procedures from the optometric expansion of practice, saying they go beyond the scope of practice.
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ALBANY, N.Y. — Optometrists in New York are barred from performing three procedures on the grounds that the procedures are invasive, following a decision by a state Supreme Court judge.
In a ruling on Kennedy vs. Novello, Justice Joseph R. Cannizzaro of the Third District stated that closure of lacrimal punctum by plug, probing of the nasolacrimal duct with or without irrigation and probing of the lacrimal canaliculi are outside of the optometric scope of practice.
“The statute does specify that optometrists are not to perform invasive surgery,” said James Lytle, JD, who serves as legal counsel for the New York Optometric Association. “The question is, are these three procedures invasive? Obviously, the state health department and the education department had presumed they weren’t.”
The expansion of optometric scope
Mr. Lytle said that in 1995 the New York State Legislature began broadening optometrists’ scope of practice. Their expanded powers allowed the prescription of certain drugs and the diagnosis and treatment of eye disease.
As a consequence of these legal changes, policy changes were also implemented, Mr. Lytle said.
“Over the next several years, conversations took place with the relevant state agencies to update the state policies in order to reflect the change of law and broadened scope of practice,” Mr. Lytle said.
On April 1, 2000, as part of this policy update, the New York state health department informed optometrists that Medicaid would reimburse them for performing an additional 13 procedures.
Dr. Kennedy’s objection
Among these 13 procedures were the three that were subsequently called into question by Robert J. Kennedy, MD, an ophthalmologist from Schenectady, N.Y., and former president of the New York Ophthalmological Society.
Because of the state of New York and organized optometry’s recent appeal of the case, on advice of his attorney, Dr. Kennedy chose not to speak to Ocular Surgery News.
Dr. Kennedy brought a legal complaint against the New York state health and education departments, challenging non-physicians’ legal authority to perform those three procedures.
“Dr. Kennedy felt that these procedures were, in fact, invasive,” Mr. Lytle said. “The ophthalmological society agreed.”
The defendants then called on Jeff Cooper, OD, to intervene in the case and to support the original ruling by the state health and education departments.
“He stepped in and took the same side as the state,” Mr. Lytle said. “The case went forward — it took forever.”
On Sept. 12, in a 22-page opinion, Judge Canninzaro agreed with Dr. Kennedy that the three procedures were invasive and thus outside the scope of practice of optometry. This determination was based on the guidelines of state education law No. 7101, which defines the optometric scope of practice. The ruling forbids the state from using Medicaid funds to reimburse optometrists for performing the procedures.
Additionally, the court denied the attorney general’s and the plaintiff’s requests to dismiss the case for lack of standing.
An ongoing struggle
Mr. Lytle maintained that Dr. Kennedy’s case was without merit.
“It is interesting — he brought the case as a ‘citizen taxpayer,’” Mr. Lytle said. “He did that because that is the only way the ophthalmologists thought they could actually bring the case.”
Mr. Lytle added that ophthalmology’s stated objection — the spending of state funds through Medicaid on these procedures – was also questionable.
“The reality is, we estimated that about $50 a month had been spent on these particular procedures, in a Medicaid program that spends billions and billions of dollars every month,” he said. “So the notion that it is a financial issue from the standpoint of state funding is, on its face, ludicrous.”
Mr. Lytle also argued that to date there have not been adverse consequences from the performance of these procedures by optometrists.
“Ironically, the punctal plug procedure, for example, is not only a part of every optometric school’s curriculum these days, but is in fact a required component on the National Optometric Examination. So the suggestion that optometry is somehow unqualified to perform this procedure is also ridiculous.”
For Your Information:
- James Lytle, JD can be reached at 121 State Street, 3rd Floor, Albany, NY 12207; (518) 432-5990; fax: (518) 432-5996; e-mail: jlytle1675@aol.com.