The term “scope of practice” is defined as “. . . the services that a qualified health professional is deemed competent to perform, and permitted to undertake—in keeping with the terms of their professional license” (https://www.nursingworld.org/practice-policy/scope-of-practice/). Health care professionals, from radiologic technicians to physicians, are regulated by their respective state medical boards. These boards, and in many cases state legislatures, set the parameters for services, treatments, and procedures that a health care professional can perform without stepping outside the bounds of his or her license. These same boards establish both the basic education required to obtain a license and the continuing education (CE or CME) requirements to maintain licensure.
Scope of practice issues are important in the area of medical professional liability. In the context of a medical malpractice claim, both plaintiff and defense attorneys utilize scope of practice to define whether a health care professional was legally permitted to perform a procedure or treatment. For the medical professional liability insurer, scope of practice is utilized to establish insurance rates (i.e., a surgeon will pay a higher premium than a nurse due to the difference in licensure parameters). When the scope of practice changes for a profession, insurers reevaluate the risk presented and decide whether to change the premium charged or decline to underwrite the risk.
Scope of practice issues also provide a battleground between professions. For the past several years, the battle has been fought in legislatures across the country between physicians and advanced nurse practitioners (APN)/physician assistants (PA). While physicians frame scope of practice as a patient safety issue because of differences in education and skill, APNs and PAs argue that expanding the scope of their licensure allows better access to care, especially in underserved and rural areas. The battle has now shifted to another front: ophthalmologists versus optometrists.
On March 27, Arkansas Governor Asa Hutchinson signed into law Act 579, which expands the scope of practice of optometrists. Optometrists in Arkansas are now authorized to perform the following procedures: intravenous and intraocular injections; incision and curettage of chalazions; removal and biopsy of skin lesions thought to have a low risk of malignancy (exceptions: those lesions on the lid margin or lesions in the nasal to puncta); laser capsulotomy; and laser trabeculoplasty. The Board of Optometry was scheduled to meet in June, ostensibly to discuss additional continuing education requirements.
With this new law, Arkansas becomes the fourth state to expand the optometric scope of practice to include surgery. Kentucky, Louisiana, and Oklahoma also allow optometrists to perform surgery, although each of the states differs slightly as to which procedures are allowed under the law. The continuing education requirements also differ by state.
Kentucky: Optometrists are permitted to perform laser surgery, excluding retinal, Lasik, and photorefractive keratectomy (PRK). The CE requirement is five additional hours in “expanded therapeutic procedures” for those optometrists credentialed by the Board to perform such services. 201 KAR 5:030. For a complete list of permitted practices, see https://optometry.ky.gov/Documents/KRS%20STATUTES%20%20REGULATIONS%20PDF%209-19-18.pdf.
Louisiana: Optometrists are permitted to perform laser surgery except for “Retina laser procedures, Laser-Assisted In Situ Keratomileusis (LASIK), Photorefractive Keratectomy (PRK), laser epithelial keratomileusis (LASEK), and any form of refractive surgery.” The CE requirement is 12 hours annually; this requirement is waived after an optometrist reaches age 60. For a complete list of permitted practices, see http://weoassociation.com/documents/7/LSBOE-Optometry-Act-06122015.pdf.
Oklahoma: Optometrists are permitted to perform laser procedures, except LASIK, retina surgery, and cosmetic procedures. Twenty-five CE hours per year are required to maintain licensure. For a complete list of permitted practices, see http://optometry.ok.gov/law581_598.htm#definition.
In 2019, several state legislatures (Maryland, Minnesota, Vermont, and Wyoming among them) considered bills expanding the optometric scope of practice. Both the American Academy of Ophthalmology (AAO) and the American Society of Plastic Surgeons (ASPS) lobbied against these bills, framing the argument in terms of patient safety because of differences in education and training. While both ophthalmologists and optometrists attend four years of undergraduate school, an optometrist attends four years of optometry school and, in some cases, one year of residency before receiving the O.D. designation. Ophthalmologists are medical doctors and attend four years of medical school, one year of internship, residency, and then (in many cases) a three-year fellowship. Both professions are required to earn CME to maintain licensure, with this requirement varying by state.
Due to the difference in education, ophthalmologists argue that allowing optometrists to perform surgery is not in the best interest of patient safety. The AAO has a grassroots lobbying effort entitled the Safe Surgery Coalition (https://www.safesurgerycoalition.org) that provides education to the public on the dangers (as they see them) inherent in allowing optometrists to perform surgery. The ASPS supports this educational and lobbying effort, most likely to limit optometrists from performing cosmetic procedures around the eyes.
Optometrists frame the expansion of scope of practice as an access to care issue. As stated on the American Optometric Association’s website:
Despite the fact that optometry delivers 85 percent of the primary eye health care in America with doctors of optometry practicing in counties that span 99 percent of the U.S. population, restrictive state laws based on archaic assumptions of the profession’s prowess continue to create self-imposed barriers to patient care. These access loopholes and outdated state laws are what AOA and state affiliates strive to eliminate with a concerted focus on optometric scope of practice.
The AOA, through its Future Practice Initiative, plans to continue the fight to expand the scope of practice in all states so that optometrists can practice “to the fullest extent of their education and training.” (AOA website.)
As with the expansion of scope of practice for APNs and PAs, the expansion of scope of practice for optometrists will present new issues of liability for attorneys, and new areas of risk for insurers, to consider. Medical liability insurers are taking different approaches to this new area of risk, from declining to underwrite surgical procedures to requiring a higher premium for coverage. Further, as more optometrists are allowed to perform surgical procedures, it is almost a certainty that lawsuits in this area will increase. The AOA vows to continue the legislative battle in 2020. To stay up-to-date with changes, monitor both the AAO and AOA websites for developments.