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Optometrists barred from performing certain procedures in New York
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ALBANY, N.Y. — A decision in the New York State Supreme Court, Albany County, has nullified the right of optometrists here to perform three procedures on the grounds that they are invasive.
In a ruling on Kennedy v. Novello, Justice Joseph R. Cannizzaro 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 specifies that optometrists are not to perform invasive surgery,” said James Lytle, JD, who serves as legal counsel for the New York State Optometric Association. “The question is, are these three procedures invasive? Obviously, the state health department and the education department had presumed they weren’t.”
Scope of practice expansion
Mr. Lytle said the New York State legislature began broadening optometrists’ scope of practice in 1995. This expanded range allowed for the prescription of certain drugs, as well as 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 Health Department informed optometrists that Medicaid would reimburse them for performing an additional 13 procedures.
An 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 state’s ophthalmological society.
Due to recent appeal of the case by the State of New York and Jeff Cooper, OD, on advice of his attorney Dr. Kennedy chose not to be interviewed. 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 ophthalmologic society agreed.”
Optometry then called on Dr. Cooper 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.
On Sept. 12, 2001, in a 22-page opinion, Judge Cannizzaro upheld Dr. Kennedy’s challenge, agreeing 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 7101, which defines the optometric scope of practice. The ruling forbade the state from using Medicaid funds to reimburse optometrists for performing the procedures.
Additionally, the court denied the attorney general’s and optometry’s requests to dismiss the case for lack of standing. The case has been appealed to the Appellate Division of New York State Supreme Court.
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 been no adverse consequences in cases where optometrists performed these procedures. “Ironically, punctal occlusion, for example, is not only a part of every optometric school’s curriculum these days, but is in fact a required component on the clinical skills section of the examination administered by the National Board of Examiners in Optometry. So, the suggestion that optometry is somehow unqualified to perform this procedure is ridiculous.”
For Your Information:
- James Lytle, JD, can be reached at 121 State St., 3rd Floor, Albany, NY 12207; (518) 432-5990; fax: (518) 432-5996; e-mail: jlytle1675@aol.com.