DAN MORALES

ATTORNEY GENERAL 

## QlXfice

of t@ Elttornep 63eneral &ate of ‘Qexae November 22, 1996
Patti J. Patterson, M.D., MPH Acting Commissioner Texas Department of Health 1100West 49th Street Austin, Texas 78756-3 199 Opinion No. DM-425 Re: Whether a therapeutic optometrist may perform certain procedures (RQ-884)
Dear Dr. Patterson: The Texas Optometry Act expressly forbids a therapeutic optometrist to perform surgery. The Texas Supreme Court has defined surgery to encompass only cutting operations, where the term was not defined otherwise by statute. You provide a list of eleven procedures and ask, in effect, ifthey constitute surgery and are therefore forbidden to a therapeutic optometrist. We conclude that a therapeutic optometrist may perform the listed procedures unless they involve cutting. For purposes of the Texas Optometry Act,’ the practice of therapeutic optometry involves using “objective or subjective means” to ascertain and measure the human eye’s power of vision;2 to examine and diagnose visual defects, abnormal conditions, and diseases of the human eye and adnexa; to prescribe or fix lenses or prisms3 to correct or remedy a defect of abnormal condition of vision; to administer or prescribe a drug or physical treatment in accordance with the act; and to treat the eye and adnexa in accordance with the act.4 The “adnexa,,” a term used in delimiting the scope of the practice of therapeutic optometry, means the lids and draining system of the eye.5 Significantly, a therapeutic optometrist may not use surgery or laser surgery.6 On the other hand, a therapeutic optometrist “may remove superficial foreign matter and

‘V.T.C.S. arts.4552-1.01 -7.02, 2See id. an. 4552-1.02(2) (defining “ascertaining and measuring powers of vision of the human O$‘).

‘Srr id. an. 4552-1.02(3) (defining “fininglenses orprisms”). 41d.an. 4552-1.02(7). 51d. an. 4552-1.02(8); see also STEDMAN’S MEDICAL

DICTIONARY

26 (5th unabr. lawyers’ ed. 1982) (defining “adnexa” generally as “appendages; parts accessory to main organ or stmchm” and “adnexaoculi” as “theeyelids, lacrimalglands, etc., associatedwith the eyeball”). 6V.T.C.S. an. 4552-1.02(7).Patti J. Patterson M.D., M.P.H. - Page 2 (DM-425)

eyelashes from the external eye or adnexa”7 (so long as the removal does not involve wm9. You list eleven procedures that you indicate the Texas Optometry Board has approved for atherapeutic optometrist to perform:

Removal of foreign body, external eye; conjunctival embedded (includes concretions), subconjunctival, or scleral nonperforating Removal of foreign body, external, comeal, without slit lamp Removal of foreign body, external eye; comeal, with slit lamp Repair of laceration, application of tissue glue, wounds or cornea and/or sclera Scraping of cornea, diagnostic, for smear and/or culture Removal of embedded foreign body, eyelid Closure of lacrimal punctum; by thermocauterization [or] ligation Closure ofthe lacrimal punctum; by plug each Dilation of lacrimal punctum, with or without irrigation, unilateral or bilateral Probing of nasolacrimal duct, with or without irrigation, unilateral or bilateral Probing of lacrimal calculi, with or without irrigation* You suggest that the Texas Ophthalmologist Association believes each of these procedures is forbidden to therapeutic optometrists. The Ophthalmologist Association apparently contends that each procedure is within the “practice of medicine” and
“surgery” for purposes of the Medical Practice Act9 But that act does not apply to a licensed optometrist who contines his or her practice strictly to optometry as defined under the Texas Optometry ActtO Thus, so long as a therapeutic optometrist performs only therapeutic optometry, asthe Texas Optometry Act circumscribes that practice, he or she is beyond the reach ofthe Medical Practice Act.

‘Id. art 4552-1.03(b). We understand thatyou have takenyour descriptions from the American Medical Asscciation’s Physicians *Current Procedural Terminology (1995). gV.T.C.S. art 4495b loId. at. 44954 8 3.06(b)(2).

D. 2372Patti J. Patterson M.D., M.P.H. - Page 3 (nn-425)

Accordingly, the issue we must determine is whether the procedures you have listed are surgery, and therefore outside the scope of therapeutic optometry. While the Optometry Act does not define the term “surgery,” the Medical Practice Act defines
“surgery” to include any procedure “described in the surgery section of the Common Procedure Coding System as adopted by the Health Care Financing Administration of the United States Department of Health and Human Services.“11 Ah of the procedures you list are described in the surgery section of the P&sjcians’ Current Procedud Terminology ‘96,12which the Health Care Financing Administration has adopted as the Common Procedure Coding System. 13 Thus, if the Medical Practice Act’s definition of
“surgery” applies to the Texas Optometry Act, we must conclude that all of the procedures about which you ask are surgery and that a therapeutic optometrist may not perform them. Jn our opinion, however, the Medical Practice Act’s definition of “surgery” does not apply to the Texas Optometry Act. Initially, section 1.03 of the Medical Practice Act limits the applicability of the definitions provided in that section, which includes the definition of “surgery,” only to the Medical Practice Act.I4 Moreover, when the legislature excluded surgery from the practice of therapeutic optometry in 1991,‘s the Medical Practice Act did not define the term. gather, the legislature added the detlnition of “surgery” to the Medical Practice Act in 1993.16We may import a statutory definition into only a later-enacted statute;” here, where the Optometry Act was enacted prior to the Medical Practice Act’s definition of “surgery,” we may not import the definition.

“Id. 5 l.O3(a)(l5). lZSee AMERICAN MEDICAL A&N, PHYSICIANS’ CURRENTPROCEDURALTERMINOLOQY ‘% at 231-32,240,242 (1995). 13TheHealth CareFinancing Administration’s Common Procedure Coding System (“HCPCS”) baa three levels of codes. GARY M. KNAUS. CF’T& HCF’CSCODINGFOR OPTIMAL

FU~~JRSEMENT4 (1987). The first level, which classities physician procedures and services, see id. at 7, is the American Medical Association’s CurrentF’rocedoralTerminology (“CPT”). Id. at 4. The second and third levels classify supplies, services, and procedurea,id.; they are not at issue here.

14See V.T.C.S. art.4495b. 5 1.03(a) 15See Act ofMay 21,1991,72d Leg., RS., ch. 588.5 I,1991 Tex. Gen. Laws2106,2108. Wee Act of May 30, 1993, 73d Leg., R.S.. ch. 862, 5 1, 1993 Tex. Gen. Laws 3374, 3375. Indeed, the legislative history of the amendment adding the definition of “surgery” indicates that the amendment was directedparticularlyat physicians. See Debate on S.B. 1062 on the Floor of the House, 73d Leg., R.S. @4ay 17, 1993) (testimony of Rep. Alexander) (tap? available from House Video/Audio Services Oftice).

“See Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 677-78 (Tax. Civ. App.- Houston [14th Dist.] 1974, no writ) (citing Brmvn v. Darden, 50 S.W.2d 261 flex. 1932)).

n. 2773Patti J. Patterson M.D., M.P.H. - Page 4 W-425)

Instead, we must define the term “surgery” to comport with its ordinary meaning.** The Texas Supreme Court has indicated that the word “surgery” embraces
“only cutting operations, “19where the statute at issue has not defined the word otherwise. Accordingly, we conclude that, for purposes of the Texas Optometry Act, the term “surgery” refers only to cutting operations. Whether the procedures you have listed involve cutting is a question of fact that cannot be answered in the opinion processzo To the extent that the procedures involve cutting and therefore constitute surgery, a therapeutic optometrist may not perform them. The Optometry Board has the authority to determine whether the procedures constitute surgery, but the board’s determination is subject tojudicial review. SUMMARY

For purposes of the Texas Optometry Act, V.T.C.S. articles 4552-1.01 through 4552-7.02, the term “surgery” refers only to cutting operations. Whether a particular procedure is a cutting operation, which atherapeutic optometrist is forbidden to perform, is a question of fact.

DAN MORALES Attorney General of Texas JORGE VEGA Fist Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

‘*See Gov? Code 5 312.002(a).

‘gTruck Ins. Erch. v. Seelbach, 339 S.W.Zd 521, 526 flex. 1960); cf: XVIl THEOXFORD ENGLISH DICTIONARY

293-94 (1989). YYCX, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (l%S) at3, O-2911 (1940) at2.

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