JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12549 Austin. TX. 78711. 2549 512147525Ql Telex 910/874-1367 Telecopier 5121475-0266

714 Jackson, Suite 700 Dallas, TX. 75202-4506 2141742-9944

4824 Alberta Ave.. Suite 160 El Paso. TX. 799052793 915/533.3464

p 1Texas. Suite 700 .,ust~“, TX. 77002-3111 713/2295886

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney’ General of Texas

Maxh 20. 1986

JohnW. Davis, O.D. Chairman Texas OptometryBoard 1300 E. AndersonLane Suite C-240 Austin, Texas 707,52
Dear Dr. Davis: OpinionNo. JM-454
Ret Clarificationof HW-499 (1982) Use of topicalocularpharmaceutical agentsby optometrists

You have requested reconsideration of Attorney General Opinion MW-499 (1982)which found unconstitutj~onal section 3.06(d)(5) of the Medical Practice Act. This provision authorizes a licensed optometrist to administer certain drugs to patients pursuant to a standing delegaticn order issued by a physician. On reconsideration of Attorney General OpinionMW-499, and on considerationof additional authorities, we hue concluded that section 3.06(d)(5) need not be held unconstitutional. Section 3.06(d)(5) of the Medical Practice Act, article 4495b, V.T.C.S., deals wLt.hthe administration by optometrists of topical ocular pharmaceutical agents, aid in examining it. which are drugs applied to the eye to

Section 3.06(3:)(S) reads inpart: (d) This Act shallbe so construed that:

. . . , (5) (A) A duly licensedand qualified optmetristmay administer topicalocularpharmaceutical agents il thepractice of optometry as providedby this sub,iivision.These pharmaceuticalagentsmay notbe u?!rdfor therapeuticpurposes. (B) 'Co be entitled to use topical ocular. pharnace>ltical agents in the practice of optometrr, an optometrist must possess a valid standingdelegationorder that: (i) :isissued to the optometrist by an area physi::ian

licensed to practicemedicine in this state;and

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(ii) authorizes the use of the pharmaceutical agents author!.z;ed by this subdivision. (C) On request, an optometristwill be issued a standingdelegation order describedby Paragraph (B) of this su~bdivisionunless the physician acting as a reasonable and prudent physician determines that (denialis within the scope of sound medical judgment as it pertains to optometry, or that it is not in the public interest, and the basis fxc denial shall be given to the requesting optometrist in writing if requested. It is necessary that the physician have knowledge of the request1r.goptometrist, and if not, then same shallbe good cause for denial. (D) A standing delegation order issued under this subdivision or a representationof the order will be prom1neni:l.y displayed in the office of the optometrist. The board will prescribe the form of the standing delegation order and the certificate or representaticln. of the order. The standing delegation order., as aminimum,will: (I) be in wc:lting,dated and signed by the physician; (ii) specify the available topical ocular pharmaceutics:. 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 therzlpeutic purposes. (E) On the complaint of any person or on its own initiative,xheboard ofmedical examinersmay cancel a standing delegation order issued under this section if :.t determines that the optometrist possessing the wcder has violated the standing delegation order or this section. (F) Except 8s provided by Paragraph (E) of this subdivision, a standing delegation order issued under thi;ssubdivision remains valid.as long as: (1) the physician who issued the order is a resident of this state and is liceilsedto practicemedicine in this state; (ii) no irrc~gularitiesare found on annual review; and

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P Dr. JohnW. Davis - Page 3 (JM-454)

(iii) the order is not canceled for good cause by eitherpar:)'. (G) A physician who has issued a standing delegation order in compliance with this subdivision is 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. (H) Nothing herein is intended to limit or expand the practice of optometry as defined by law. (Emphasisadded). Attorney General Opini~on MW-499 (1982) concluded that subsection 3.06(d)(5)of article 44951,!, V.T.C.S.,was unconstitutionalbecause it authorized physicians to asctas licensing agents for the state but lacked sufficient statutlzy standards to govern the physician's discretion. On reexamination,we conclude that section 3.06(d)(5) is not a licensing provision. Instead, it is comparable to other provisions of law whereby physicians may authorize non-physicians to administer certain drugs. See V.T.C.S. art. 4476-14, 992(e), 4(2) (agents or employees o:iphysicians, dentists, podiatrists and veterinarians may possess dangerous drugs); V.T.C.S. art. 4476-15, §§1.02(9), (24)(A), 3.01(e)(l) (agent or employee of dispenser of controlled substances may''possess such substances); V.T.C.S. art. 4495b, 53.06(d)(4) (administrationof dangerousdrugs inDepartment of Health programs to prevent or treat certain communicablediseases).
Even prior to the enactmentof the presentversion of theMedical Practice Act, a physician could delegate medical acts to another person,without directly supervisinghis performance. Tatro v. State of Texas, 516 F. Supp. 968, 976 (N.D.Texas 1981).aff'd 703 F. 2d 823 (5thCir. 1983)modified cn other grounds, 104 S.Ct. 3371 (1984); set Thompson v. Texas State Biard of Medical Examiners, 570 S.W.2d 123, 129-30 (Tex. Civ. App. -' Tyler 1978, writ ref'd n.r.e.). The nhvsician had to ascertajn that the nerson urovidina treatment was adequatelyqualified to do iso. 516 F. Supp. at 976; &e alsoAttorney GeneralOpinionH-1295 (19713).
In our opinion, sectlon 3.06(d)(5)merely authorizes a physician to delegate certain medd.calacts. The statute does not give a physician absolute discretion to issue the order to an optometrist. The physicianmust deny a request for a standingorder if, "acting 8s a reasonableand prudent r,hysician" he determines that "sound medical judgment"or "the public interest"dictates.denial. Thus, a physician must exercise his judgment in granting or denying a standing order according to a standard r~~sembling the standard to which he would be held accountable in a mapractice suit. See Rood v. Phillips, 554 S.W.2d 160 (Tex. 1977) (r~laintiff must establish that physician has used treatmentwhich a re&onable and prudent physicianwould not use

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under similar circumstancc,s). The physician's failure to exercise prudent judgment in issuir,gor continuing a standing order subjects him to liability in conne:tion with acts performed pursuant to the standingorder. V.T.C.S. art. 4495b, 53.06(d)(5)(G). Finally,he may not issue a standing order ,unless he has knowledge of the requesting optometrist. Id. 13.06(d)(S)(C).

- If section 3.06(d)(5) is constitutionaland still in effect,you request an answer to the qc,estions submittedby Speaker Clayton in his request for an Attorney General Opinion dated March 5, 1982. EiS questions were directed at,determining whether the Board of Medical Examiners had authority t,>regulate delegations made under section 3.06(d)(S). We have summarized his questions and grouped closely related questions together.
He first inquired wh@:therthe Board of Medical Examiners might prescribe only the form ~>fthe standing delegation order or also substantiverequirementsof delegationsmade under section 3.06(d)(5). Section 2.09(a) of the! Medical PracticesAct authorizes theboard tomake rules, regulationsandbylaws not inconsistentwith theAct to regulate the practice ofmedicine. Section 3.06(d)(5),however, limits the otherwise broad autho:rityof the Board of Medical Examiners to regulate the practice ofmedicine. SeeV.T.C.S. art. 4495b, 52.09(a); Attorney General Opinion MW-318 (1981). Its role in implement~g section 3.06(d)(S) is 1imit:e:d to prescribing the form of the order and cancelling it if the optonetrists have violated either the order or the statutory provision. See 53.06(d)(5)(D), (E). See generally Statev. Jackson, 376 S.W.;,dm (Tex. 1964) (legislaturemay withdraw ‘fromadministrative agency a matter otherwise within its reaulatorv field); Railroad Comm&siba v. Fort Worth and D.C. Railway company; 161 S.W.2d 560 (Tex. Civ.-App. - Austin 1942, writ dism'd w.o.m.) (boardmay not enlarge its powersby its own orders). Section 3.06(d)(5)(D)authorizes theboard to "prescribe the form of the standingdelegationcsrder." (Emphasisadded). Although "fz is not defined in the act, section 1.03(11) provides that it should have a meaning consistent%'1,th common law.
"Form" is generally regarded as the antithesis of "substance." See, e.g., Wilson v. Wagney, 211 S.W.2d 241 (Tex. Civ. App. - San Antonio 1948,writ ref'd n.r.e.);Gevurtzv. Myers, 500 P.2d 730 (Ore. Ct. App. 1972). See also P,pplicationof Trico Electric Cooperative, *, 377 P.2d 309, 315 (Ariz. 1962) (form distinguished from content).
In our opinion, ltforwnin ~section3.06(d)(S)(D), denotes structure and is to byedistinguished from substance. We conclude that the board may prescribe only t.h.e form and not the substance of standing delegation orders. Authcrity over the substantive content of a standing delegation order rests with the individual physician. See V.T.C.S. art. 4495b. P1.0218); compare, e.g., 53.06(d)(l). Of cour6e,

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whether a particular administrative regulation deals with "form" or "substance"would have toke determined on a case-by-casebasis.
He next asked whether the board might limit the types of topical optical pharmaceutical agc!c,ts that could be included in a section 3.06(d)(5)delegationor prevent their administrationto patients in a certainage group. Sections 3.06(d)(5)(A) and (D) are relevant to this inquiry. Subsection (A)reads as fol.l,ows:

A duly licensed and qualified optometrist may administer topical. ocularpharmaceuticalagents in the practice of optometry as provided by this subdivision. These pharmaceutical agents may not be used for therapeutic purposes. (Emphasis added). Subsection (D)reads inpart:

The board will prescribe the form of the standing delegation order iandthe certificate or representation of the o,rder. The standing delegation order, as amininum,will:

**. .**  **. .**  (ii) specify the available topical ocular pharmaceutical agents. including but not limited to topical anesthetics and dilating agents, to be xministered in l:he office; and (iii) specify that said agents shall not be used for therapeuticpurposes. (Emphasisadded). Section 3.06(d)(S)(D)(N) explicitly permits physicians to specify any of the available topical ocular pharmaceutical agents and the board may not narrow their authority. Of course, individual physicians may decide to ILimitthe pharmaceutical agents named in orders they issue, since their immunity from liability for acts performed pursuant to a standing delegation order depends upon their exercising prudent judgment in issuing or continuing the order. In addition, no pharmaceutkal agent **may** be used for "therapeutic purposes." See Webster's FlewInternationalDictionary (2d Ed. 1957) (therapeuticmeans "of or pertaining to the healing art;~concerned with remedies for disksell; curative."). Whether a particular agent can be used only for therzlpeutic purposes, or whether it is used for therapeutic purposes in a particular case, are fact questions which cannotbe answered in **the** ,>pinion process. The board may not impose requirements on standing delegation orders pertaining to the patient's age. Section 3.06(d)(S)(A) provides that a

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duly licensed and qualified optometrist may administer topicztl ocularpharmaceuticalagents in the practice of optometry as provided by this subdivision. (Erq~hasis added). The statute does not refer to the patient's age. The board may not substantively limit a physician's authority to issue a standing delegation orderby requir:.ng it to state that the optometristmay not use a topical ocular pharnlaceutical agent on a particular age group. Of course, the issuing physician may so limit the use of the pharmaceuticalagents he nllmesin the order.
He also asked whether the board could require as a prerequisite to issuing a standing orCer that a doctor have authority to admit patients to an area hospital.. Section 3.06(d)(5)(B)provides that:

To be entitled to use topical ocular pharmaceutical agent]!in the practice of optometry,an optometristmust possess a valid standing delegation order that: (I) is issued to the optometrist by an area physician licensed topracticemedicine in this state
. . . .-sphasis added). Section 3.06(d)(S)(B)(i) refers to "an area physician" but that term is not defined in tne statute. The board could, pursuant to section 2.09(a) of the act., promulgate valid rules defining an "area physician." Conceivably, the requirement in question could be among these criteria. For example, a physician practicing in a distant locale might be deemed an "area physician" if he is authorized to admitpatients to an "area"hospital: in this context, the use of this standard would appear to be permissible. On the other hand, if a physician would be deemed an "area physician" as a matter of law, i.e., because he lives antIpractices in the "area," he could not be zented from issuing a standing order on the ground that he is not authorized to admit patieni:s to an area hospital.
He next asked whether the board could adopt a rule requiring the optometrist to inform the delegating physician of pathological conditions discovered during the optometric **exam.** The rule in question is subsection (b)(13) of rules proposed by the Board of Medical Examiners:[The standing dcl.egationorder shall] set forth

any specializedI:Lrcumstances underwhich a person performing **same** :Ls to immediatelycommunicatewith the physician cc~ncerningthe patient's condition including the requirement of immediate notification of the detegating physician of signs and ?

?

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symptoms of ocular disease which are vision threatening or which can permanently affect the sight of the patient and which requiremedical or surgicaltreatment to include,but not necessarily be limited to signs and symptoms of the following diseases ormedC:al conditions

. . . . Under section 2.09(a) of the act, theboard:

-Y make rules, regulations, and bylaws not inconsistentwit:;thisAct as may be necessaryfos the governing of its own proceedings, the performance of its duties, the regulation of the Practice of med!tcine in this state, and the enforcementof &is Act. (Emphasisadded). The subsection (b)(13),requirement may reasonably be characterized as "necessary for
. . . the regulation of the practice of medicine in this state." We do not we believe the proposed regulation is inconsistentwith anyp~rovision of section 3.06(d)(5),or any other provision of the act. We therefore conclude that the regulation is not impermissible per se. Whether it is inconsistent with some specific statute or a regl:lation of the Texas Optometry Board would have to be determinedon a case-by-casebasis.
Our conclusion about the validity of subsection (b)(13) is not inconsistentwith our previous determination that the board may not impose substantivelimitar:tons upon a physician'sauthority to issue a standing delegation order. The proposed regulation does not **impose** such a limitation, but merely requires that an optometrist report certain information to the!physician under whose standing delegation orderhe is operating. Ris last question asserts that a physicianwho reasonably issues a section 3.06(d)(5)delegation is immune from liability for the acts of an optometrist actingwithin the scope of the delegation. It then asks whether a physician xsy delegate other tasks to an optometrist under a traditional standlog orderwhere the physician remains liable for the acts of the optomexist. Section 3.06(d)(S)(G)provides that:
A physician who has issued a standing delegation order in compliance with this subdivision is immune from lir.bilityin connection with acts performed pursuant to the standing delegation order so long asihe has used prudent judgment in the issuance or ,thecontinuance of the standing delegationorder, The answer to this qulzstion dependsupon the nature of the "other task" and other relevant facts, and thereforemust be determined on a

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case by case basis. See V.T.C.S. art. optometrist by physician); 4552-5.13(d) (employment of Attorney General Opinion W-318 (1081). however,made some general observationswhich might prove helpful:

The liabilityof at physician for the negligence of others is detersined bv examinina the urinciules of agency law. Jpargei v. Worley-Hospital, Inc., 547 S.W.2d 582 (Isex.1977). The master is liable for the torts cf his servant cosnnittedin the course of his tm~ployment. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964). The master's vicarious liabili'tvfor his emolovee's torts is based upon his right to control the-detailsof the work. Id. The supervisingphysician need not be the actual emplo:~er of the sewant in order to be vicariously liabte for his torts, so long as he has the.right to control the details of the work. Spargerv. Worley-Hospital,Inc.,supra.

SUMMARY Section 3.06(d)(5)of article 4495b,V.T.C.S., is constitutional. The Board of Medical Examiners may regulate.on17 the form and not the substance of a standing delegation order issued to an optometrist pursuant to section 3.06(d)(S) of article 4495b. V.T.C.S. The delegating physician has authority to determine the substance of the order. Very 

# J trulyyours

A JIM MATTOX Attorney General of Texas
JACK HIGHTOWER FirstAssistantAttorney Geneera
MARY KELLER ExecutiveAssistantAttorneyGeneral
ROBERT GRAY SpecialAssistantAttorney ;aneral
RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrisn~ AssistantAttorney General

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