Mississippi ODs win fight against mandatory TPA rule

Issue: November 2006

ByJennifer Byrne

A group of optometrists in Mississippi filed a successful lawsuit against the Mississippi State Board of Optometry in response to a rule that would have required that all optometrists in the state acquire therapeutic prescribing privileges by the end of 2006.

Rule 12.5, which was ruled invalid by a judge in the Hinds County, Miss., First Judicial District Court, would have taken away the right of optometrists without therapeutic pharmaceutical agent (TPA) privileges to practice optometry independently, according to the Order and Opinion of the Court.

“It is unreasonable and unfair that after 12 years of TPA certification they are requiring all of us to be TPA certified,” Harold A. Jefcoat, OD, one of the optometrists involved in the lawsuit, told Primary Care Optometry News. “Yes, therapeutics has its place in optometry. But I am one who does not care to have that type of practice, and I should have that choice.”

Rule 12.5

According to the court transcript, Rule 12.5 states that “All optometrists with a current license and no TPA or DPA [diagnostic pharmaceutical agent] certification and those with a DPA certification only, must meet the educational requirements to obtain their TPA certification by Dec. 31, 2006.”

Dr. Jefcoat said Mississippi has had therapeutic legislation in place since 1993, but it had never been mandatory for all optometrists to have therapeutic privileges.

Rule 12.5, which was introduced in September 2001, states that it “does not preclude non-TPA certified optometrists from practicing after Dec. 31, 2006.” However, the rule goes on to state that a non-TPA certified optometrist would cease to have an active license to practice optometry independently. These optometrists would not be able to sign prescriptions, and “would need to work under a therapeutically licensed optometrist.”

Dr. Jefcoat appeared before the board of optometry to propose a change to the rule. “I asked them to change it so that it applies to licensees from 1993 (when the therapeutic legislation was passed) and later,” he said.

Dr. Jefcoat’s efforts, and subsequent efforts by other non-TPA certified optometrists, yielded no results. “That’s when we ended up going to court over it,” he said.

The board’s explanation

In a May 2, 2003, letter to the plaintiffs (Dr. Jefcoat and colleagues), the board of optometry explained its reasons for Rule 12.5.

“Standardization of licensure has been a nationwide trend in the profession of optometry,” according to an excerpt from the letter in the Order and Opinion of the Court. “The Medicare program pays for diabetic patients to have glaucoma testing annually. The present multilevel certifications for optometrists can result in patients receiving an eye exam from an optometrist who could not treat their condition, causing the patient to seek treatment from a second optometrist with therapeutic certification.”

The letter went on to state that such inconsistencies in certification are often inconvenient to patients.

“Not only does this process cause delay in treatment, it also causes additional, unnecessary expense to the patient,” the letter stated. “Standardization of licensure will provide better service to the public.”

According to the office of the Mississippi State Board of Optometry, 24 active optometrists in the state had no TPA certification before the rule was introduced in 2001. Since then, 13 of the 24 have obtained it. “The primary purpose for Rule 12.5 regarding standardization of licensure was to protect the public,” the board told PCON.

The court’s opinion

The court determined that rule 12.5 directly conflicts with Mississippi Code Ann. 73-19-155 (1).

“The plain reading of Mississippi Code Ann. 73-19-155 makes it clear that rules and regulations promulgated by the board regarding TPA educational requirements only apply to optometrists seeking to prescribe TPAs,” the court opinion stated, “while Rule 12.5 requires TPA certification of all optometrists.”

The court ruling went on to state that Mississippi legislature has not authorized the board to preclude licensed optometrists from practicing for “not meeting any additional, nonstatutory mandated educational requirements.”

The opinion stated that the board has the power make rules pertaining to TPA certification only for those optometrists who wish to prescribe TPAs.

“If Rule 12.5 is to be implemented, Miss. Code Ann. 73-19-155 must be repealed or the Mississippi legislature must broaden the scope of the board’s authority in mandating such a rule,” the opinion stated.

The board of optometry filed no appeal.

“Doing what we’ve always done”

Dr. Jefcoat said obtaining TPA certification, a privilege he does not want, could have cost him thousands of dollars and 2 weeks out of his practice.

He and the other non-TPA certified optometrists are pleased at the outcome of the court ruling. “From 1978 to 1993, we practiced without TPAs,” he said. “I’m doing the same thing I’ve always done. If something comes up that needs drugs, I refer the patient to the local ophthalmologist, or now, optometrist.”

For more information:

The Mississippi State Board of Optometry can be reached at PO Box 12370, Jackson, MS 39236; (601) 853-4338; Web site: www.msbo.ms.gov/msbo/opto.nsf.

Harold A. Jefcoat, OD, can be reached at 29 Seargent S. Prentiss Dr., Ste. 6, Natchez, MS 39120; (601) 442-4354; e-mail: hajefcoat@dixie-net.com.