MARK WHITE Attorney General

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# The Attorney General ofTexas

July 30, 1982
Honorable Bill Clayton Speaker of the Rouse of Representatives CapitolBuilding Austin, Texas 78711 opinionNo. w-499

Re: Use of topical ocular pharmaceutical agents by optometrists, and related matters

Dear SpeakerClayton:

You have posed several questions concerning the authority of the Texas State Board of Medical Examiners to promulgate and enforce administrative rules ~implementing section 3.06(d)(5) of the new Medicalt;;actice Act, article 4495b. V.T.C.S. That subsection deals with administration by optometrists of topical ocular pharmaceutical agents, which are medicinal drugs applied to surface areas of the eye thatproduce effectswhich aid in the examinationor treatmentof eye diseasesor conditions. Your letter to us states:

On Sunday, Pebmary 21. 1982, the Medical Board met and tentatively adopted rules to implement Section 3.06(d)(5).... These proposed rules appear to violate both the letter and the intent of the law, and appear to exceed the Medical Board's rulemakingauthority....
Section 3.06(d)(5) reads in part:

(d) ThisAct shallbe so construed that:

.... (5) (A) A duly licensed and qualified optometrist may administer topical ocular pharmaceuticalagents in thepractice of optometry as provided by this subdivision. These pharmaceutical agents may not be used for therapeuticpurposes.

(B) To be entitled to use topical ocular pharmaceutical agents in the practice of optometry, an optometrist must possess a valid standingdelegationorder that:

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(0 is issued to the optometrist by an area physician licensed to practice medicine in this state;and (ii) authorizes theuse of thepharmaceutical agents authorized by this subdivision.
(C) On request, an optometrist will be Issued a standing delegation order described by Paragraph (B) of this subdivision unless the physician acting as a reasonable and prudent physician determines that denial is within the scope of soundmedical judgment as it pertains to optometry, or that it is not in the public interest, and the basis for denial shall be given to the requesting optometrist in writing if requested. It is necessary that the physician have knowledge of the requesting optometrist, and if not, then same shallbe good cause for denial.

(G) tr;zician who has issueda standing delegation in compliance with this subdivisionis immune from liability in connection with acts performed pursuant to the standing delegation order so long as he has used prudent judgment in the issuanceor the continuanceof the standingdelegationorder.

(8) Nothing herein is intended to limit or expand the practice of optometry as definedby

_ (Emphasisadded). law.
Among other things, the tentativelyadopted administrativerules thatyou question purport to specify restrictive terms and conditions for standingdelegationorders issuedby physicians and toprescribea model form for such orders. The portion of section 3.06(d)(5) that speaks to the role of the Board of Medical Examiners in this process reads:
(D) A standing delegation order issued under

this subdivision or a representationof the order will be prominentlydisplayed in the office of the optometrist. The boardwill prescribe the form of the standing delegation order and the certificate or representation of the order. The standing delegation order, as aminimum.will: p.1789HonorableBill Clayton - Page 3 ww-499)



### (0 be in,writing. dated and signed by the physician;
(ii) specify the available topical ocular pharmaceutical agents, including but not limited to topical anesthetics and dilating agents, tobe administered in the office;and (iii) specify that said agents shall not be used for therapeuticpurposes. (E) On the complaint of any person or on its own initiative,theboard ofmedical examinersmay cancel a standing delegation order issued under this~section if

### it determines that the optometrist possessing the order has violated the standing delegationorder or this section.
(PI Except as provided by Paragraph (E) of this subdivision, a. standing delegation order issued under this subdivision remains valid as long as: (i) the physicianwho issued the order is a resident of this state and is licensed to practicemedicine in this state; (ii) no irregularities are found on annual review; and (iii) the order isnot canceled forgood cause by either party.
Several of your questions concern the application of specific rules to specific situations,but all of them deal with the power of the Board of PledicalExaminers to limit or control the discretionary authority of physicians to invest optometrists with privileges respecting the use of such pharmaceutical agents. Before addressing your specific questions, it is necessary to notice the relationship the drugshave to thepractice of optometry.

Au optometrist who administers topical ocular pharmaceutical agents does not practice optometrywhen he does SO,whether or not he acts under a standing delegation order issued by a physician. The "practiceof optometry" is legallydefinedby theTexas OptometryAct. article 4552-1.02.V.T.C.S.. aa:

the employment of objective or subjective means, without the use of drugs, for the purpose of ascertaining andmeasuring the powers of vision of the human eye, and fitting lenses or prisms to

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corrector remedyany defector abnormalcondition of vision. Nothing herein shall be construed to permit optometrists to treat the eyes for any defectwhatsoever in anymanner nor to administer nor to prescribe any drug or physical treatment whatsoever,unless suchoptometrist isa regularly licensed physician or surgeon under the laws of this state. (Emphasisadded). Although subsections (A) and (B) of section 3.06(d)(5) of the Medical Practice Act speakof theuse of topical ocularpharmaceutical agents "in thepracticeof optometry,"section 3.06(d)(S)(R)specifies that nothing in the act is intended to "limit or expand the practice of optometry as defined by law." (Emphasis added). Words may be supplied to a statute in order to give effect to the clear legislative intent. SweenyHospitalDistrictv. Carr, 378 S.W.Zd 40 (Tex. 1964). We believe the words, "in the practice of optometry." as used in subsections (A)and (B)must mean "in connectionwith-the practiceof optometry." (Emphasis added). Otherwise, the section would be internally inconsistent. One subsection would nullify others. The legislative intent is made clear, in our opinion, by section 3.06(b)(2).which states that theact doesnot apply to "duly licensed optometrists who confine their practice strictly to optometry as defined by law." (Emphasis added). The disputed provisions of the act do not allow optometriststo use drugs as an integralpart of the practiceof optometry.
The legislaturehas clearly indicated its intent that the use of such pharmaceutical agents be regulated when administered by optometrists in connectionwith the practice of optometry. Under its policepower, the legislaturemay place such regulatorypowerwhere it chooses so long as no provision of the constitution is contravened. See Franciscov. Board of Dental Examiners. 149 S.W.2d 619 (Tex.Civ. G. - Austin 1941, writ ref'd). See also Trimble v. Texas State Board of Registration forProfessionalEngineers,483 S.W.2d 275 (Tex. Civ.App. - El Paso 1972,writ ref'dn.r.e.).

Your first twoquestionsareas follows:

1. With regard to the implementation of section 3.06(d)(S)of thePiedicalPracticeAct, is the authority of theMedical Board limited to the roles z6(d)(5) specifically stated in section

,&, (1) toprescribe the form of the I e standing delegation order and the certificate or representationof the order, and (2) on complaint of anyperson or on its own initiative to cancel a standing delegation order if it determines that the optometristpossessing the order has violated the standingdelegationorder?

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2. (a) In performing its function of prescribing the form of the 3.06(d)(5) standing delegation order and its representation, is the authority of the Medical Board limited to prescribing matters of form rather than substantivecontent?

(b) Beyond the substantive requirements expressly stated in the statute, is the substantive content of a 3.06(d)(5) standing delegation order to be determined solely by the delegatingphysician and the optometrist?

(c) If the Medical Board may impose requirements on the substantive content of a 3.06(d)(5) delegation, to what extentmay they do so? Particularly, may the Medical Board make medical or optometric judgments and impose them upon the delegatingphysician and the optometrist?
Section 3.06(d)(S) assigns no role in the issuance or' cancellation of a standing delegation order to anyone other than the board and individual physicians. To ascertain the authority of the board, we must first consider the extent of authority conferred upon physicians.
Subsection (d)(5)(B)(i)requires that a standingdelegation order be issued to an optometrist "by an area physician licensed to practice medicine in this state." Subsection (d)(S)(C) seemingly requires an areaphysician to issue such an order unless thephysician, "acting as a reasonable and prudent physician" determines (1) that denial is within the scope of sound medical judgment as it pertains to optometry, or (2) that it is not in the public interest. Lack of "knowledge"by the physician of the optometrist is also specified as good cause for denial.
Subsection (d)(S)(F) provides that a standing delegation order may be invalidated by the issuing physician only if he moves his residence from the state, surrenders his license, discovers irregularities on annual review, or cancels the order "for good cause." The order canbe cancelledby theboard only if it determines that the optometrist "has violated the standing delegation order" or section 3.06 of the act. V.T.C.S. art. 4495b. 13.06(d)(S)(E). Also, subsection (d)(S)(G) specifies that an issuing physician is immune from liability for acts performedpursuant to the standinn delenation - - order so long as he has used prudent judgment in its issuance or continuance. -

Given itswidest scope, the language of section 3.06(d)(5)would empower a physician to authorize an optometrist to administer (for nontherapeutic purposes) any topical ocular pharmeceutical agent to

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any person in his office at any time. Moreover, only the issuing physician could effect a cancellationof the order unless a violation of the order as issued by the physician (or a violation of the statutorysection)were proved.

We agreewith your contention that itwas themanifest intent of the legislature to invest individual physicians with broad power of the sort described above. But, in our opinion, such a reading of section3.06(d)(5)renders itunconstitutional.
By act of an issuing physician, an optometrist may, under the provisions of subsection (d)(S), obtain official permission and a personal right to perform acts on his own account,f.e.. without any form of supervision by the physician. The issuing physician is, moreover, statutorilyauthorized to base his decision to issue or to decline to issue thepermittingorderon his perceptionof "thepublic interest." Thus, the statute in effect authorizes the myriad private physicians in this state to act as licensing agents for the state, granting or withholding such licenses as each deems best for "the public interest."
The scheme of the statute raises serious questions about the constitutionality of delegating such public powers to private individuals who are neither members of the executive branch of government.nor answerableto thepublic. SeeTex. Const. qt. I, $2, art. II, il.art. III, $1; Gerstv. Nixon.%i S.W.Zd 350 (Tex. 1966) (granting of permits is administrative function); Attorney General Opinion H-41 (1973) (control of dentistry by private organization). See also Tex. Const. art. I. 117 (legislativecontrol of privileges). We need not address those questions here, however; because in our opinionthevirtually unlimitednature of the discretionplaced in the physicians is sufficientto invalidatethe statute.

In Bloomv. Texas State Board of Examiners of Psychologists,492 S.W.2d 460. 462 (Tex. 1973). the Supreme Court of Texas characterized the questionbefore it as:

whether the Legislature could constitutionally empower an administrativeagency todowhatever it 'may'consider in thebest interest of the public without regard to statutory standardsor published agency rules.

In concluding that the legislature could not do SO, the court relied on this quotation from Railroad Commissionv. Shell Oil Company. 161 S.W.Zd 1022, 1025 (Tex. 1942):

It is a well-established principle of constitutional law that any statute or ordinance regulating the conduct of a lawful business or industry and authorizing the granting or

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withholding of licenses or permits as the designated officials arbitrarily choose, without setting forthany guide or standardto govern such officials in distinguishing between individuals entitled to suchpermits or licensesand thoeenot so entitled, is unconstitutionalandvoid.
Subsection 3.06(d)(5)(C) requires an area physician to issue a standing delegation order unless he determines. "as a reasonable and prudent physician," that denial is either "within the scope of sound medical judgment as it pertains to optometry." or "in the public interest." A requirement that a licensuredecision% based on "sound medical judgment" might establish a sufficient statutory standard to avoid invalidity. And the phrase "in the public interest" might furnish an adequate statutory standard in somesituations, i.e., as 8 guide for some adminietrative agencies. But in our *ion a statutorydeclaration -- without more -- that licensure decisions are to be made by individual physicians on the basis of their varied personal concepts of "the public interest" clearly doee not donso. See Tex. Const. art. III, Sl; Bloom v. Texas State Board of Examiners ofPsychologists. s; Railroad Coteniesionv. Shell Oil Company, supra.

In Sx parte Leslie, 223 S.W. 227, 229 (Tex.Grim.App. 1920).the court considered a Live Stock Sanitary Commission rule, proclaimed pursuant to a penal statute, requiring cattle owners to have their cattle dipped unless an agent of the commission deemed it "safe or expedient" to excuse them from doing so. In finding the measure unconstitutional, the court observed that the power of the agents to discriminatebetween individualsunder sucha proclamation:

is required to rest upon no distinction, but permits those executing it to select, without giving reason therefor. those who shall obey it and thosewho shall be exempted from its penalty. No condition is named to which a citizen complaining of discrimination can point as condemning the action of those executing the law. No fact is named in the law or in theproclamation which he may establish and urge as a matter of right as exemptinghimfrom thepenalty.

In the eituation before us, the legislature has made the administrationof topicalocular pharmaceuticalagentsby optometrists unlawful and fixed a penalty therefor, but provided that individual physiciansmay use their own discretion in selecting optometrists to be exempted from the penalty. As with the selections made by live stock sanitary commission agents, the power of physicians to discriminate among individuals rests on no distinction. No condition is named to which an optometrist complaining of discrimination can point as condemning the action of those executing the law, nor is any

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fact named which an optometristmay establish and urge as 

### exempting him from thepenalty as amatter of right.

It would be difficult enough for an administrative agency to apply the "in the public interest" standard with any degree of precision. The thousands of physicians in this state can hardly be expected to do so, however, inasmuch as each will inevitably have a separate and probably different concept of what is "in the public interest." Uniformity in the application of the "public interest" standardis, therefore,an impossibilityhere.

In Railroad Commission v. Shell Oil Company. s. the Texas Supreme Court observed that an ostensible "prevention of waste" standardwas really no standardat all if the same facts could serve in one instance to exempta person from the generalprohibitionof the law and to deny exemption to a differentperson in another instance. Under the statute here, the application of one optometrist for a standing delegation order could be denied by a physician on facts deemed sufficientby that same physician, or another, to support the application of a different optometrist. Statutory delegations of power may not be constitutionallyaccomplished by language so broad and vague that persons of common intelligencemust necessarily guess at its meaning and differ as to its application. *e Texas

1921). See also United 7 578 P.2d38 368 P.2d 101. (Cal. 1962) 'm AntiquitiesCommitteev. Dallas CountyCommunityCollegeDissct, 554 S.W.Zd 924 (Tex. 1977); Spann v. City of Dallas, 235 S.W. 513 (Tex. :hiropractorsof Washington, Inc. v. State, (Wash. 1978): BlumenthalV. Board of Medical Examiners. Iated power must be accompanied by' suitable safeguards to guide its use and to protect against its misuse).
Inasmuch as we believe subsection 3.06(d)(S) of the Medical PracticeAct is unconstitutional,we conclude that it neither confers authority on the Board of Medical Braminers or individualphysicians, nor deprives them of any authority. Your questions are referable 

### to this subsection,and to the extent that theyare, they are answeredby the foregoing conclusion. But in the interest of clarity we will briefly discuss the remainder of the Medical Practice Act insofar as itrelates to the topicat hand.
The invalidity of subsection 3.06(d)(S) in no way diminishes the authority of the Board of Medical Examiners to promulgate rules respecting the practice of medicine and the enforcement of valid provisions of the act. V.T.C.S. art. 4495b. 111.02(8), 2.09(a). 3.06(d)(l). (2). (3). 5.02(a). See Acts 1981. 67th Leg., 1st C.S., ch. 1. 15 at 1, 36 (severabilityclause). Cf. Texas State Board of Examinersin Optometryv. Carp, 412 S.W.Zd 30mTex. 1967). Theboard has express authority to regulate the use of dangerous drugs by physicians and those acting under the supervision of a physician. V.T.C.S. art. 4495b, 13.08(4)(E). (F), (I); Dotson v. Texas State Boardof Medical Examiners. 612 S.W.2d 921 (Tex. 1981); Scottv. Texas

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State Board 

### of Medical Rxaxiners. 384 S.W.Zd 686 (Tex. 1964). See also V.T.C.S. art. 4495b. 13.06(d)(2). (31, 3.07(i). It is 

### tobe xd that under the delegations validly authorired by the Medical Practice **Act** (unlike those contemplatedby eubsectiox 3.06(d)(S)) the delegatingphysician isnot permitted to escape respoxsibilityfor the acts of his delegates. Thue.he does

### notact as a licensingagent for the state in such circuxstances inasmuch as he cannot empower his delegates to act on their own account. They are his agents. See **Attorney** General Opinion FM-275 (1980). Cf. 8parger v. WarHos ital Inc., 547 S.W.2d 582 (Tex. 1977); **Attorney** General Opinion .iGihfmr

It should also be noted that the Texas Optometry Act gives optoxetristsno license to use drugs for any purpose, therapeutic or not, and that optometrists are aot among those permitted by the dangerousdrug laws to deliverdangerousdrugs in theirpractice. See V.T.C.S. arts. 4476-14, 4476-15, 4552-1.01 et seq. SubsectiK 3.06(d)(l), (2) and (3) of 

### theMedical Practice Act. however, would permit physicians, “through physicians orders, standing wdical orders, standing delegation orders. or other orders

### whereapplicable, as the orders are defined by the board [of Medical Exaxinersl,” to authorizeoptometrists,

### asagentsof thephysician, to performmedical acts and to administer dangerous drugs under certain conditions. (Bxphasisadded).

SUMMARY

Subsection 3.06(d)(5) of article 4495b, the Medical PracticeAct of 1981. Is unconstitutional.
Very trulyyours,

,



### JOHLP W. 

### FAINTER.

JR. FirstAssistant **Attorney** General
RIClURD E. GRAY III ExecutiveAssistant **Attorney** General Preparedby BruceYoungblood Assistant **Attornsy** Genaral **Attorney** General of Texas

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APPROVED: OPINIONCOMMITTEE

SusanL. Garrison,Chairman Jon Bible RobertGauss RickGilpin JimMoellinger BruceYoungblood

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