Untitled Texas Attorney General Opinion ( 1992 )

@ffice of the Elttornep @eneral
%btateof PCexae
DAN MORALES August 13,1992
ATTORNEY
GENERAL
Mr. Homer R. Goehrs, M.D., F.A.C.P. Opinion No. DM-152
Executive Director
Texas State Board of Medical Examiners Re: Whether title 22 of the Texas
P. 0. Box 13562 Administrative Code section 280.5(g),
Austin, Texas 78711-3562 (h) is consistent with section 1.03 of
the Texas Optometry Act, V.T.C.S.
arts. 4552-1.01 through 4552-5.20, and
related questions (RQ-304)
Dear Dr. Goehrs:
On behalf of the Texas State Board of Medical Examiners, you have
requested our opinion on whether Rule 280.5(g), (h) of the Texas Optometry Board
is consistent with the intent of section 1.03 of the Texas Optometry Act (the act),
V.T.C.S. article 4552-1.01 through article 4552-5.20. Tex. Optometry Bd., 16 Tex.
Reg. 5812, udoptedwith amendment,16 Tex. Reg. 7742 (1991). In addition, you ask
how article III, section 51-a of the Texas Constitution affects the application of
section 1.03 of the act.
During its regular session, the 72d Legislature passed Senate Bill 774, which
amended the act to create an additional category of optometry practition-
ers: therapeutic optometrists. See Acts 1991,72d Leg., ch. 588; V.T.C.S. art. 4552,
93 1.02(2)(C), (7), 1.03,3.01,5.20. According to the amended act, both categories of
optometry practitioners, optometrists and therapeutic optometrists, employ
objective or subjective means . . . for the purpose of ascertaining
and measuring the powers of vision of the human eye, examining
and diagnosing visual defects, abnormal conditions, and diseases
of the human eye and adnexa, and fitting lenses or prisms to
correct or remedy any defect or abnormal condition of vision.
Id 9 1.02(l); ~JI id 8 1.02(7) (defining “practice of therapeutic optometry”).
However, while the act expressly prohibits optometrists from treating, prescribing,
or administering any kind of drug @I. $!1.02(l)), the act expressly authorizes
therapeutic optometrists to administer or prescribe drugs or physical treatments in
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Mr.HomerR. Goehrs, M.D.,F.A.C.P. - Page 2 W-152)
the manner authorized by the act, and to treat the eye and adnexa’ as authorized by
the act without the use-of surgery or laser surgery. Id 0 l.O2(7k see id 0 1.03(b). In
particular, the act authorizes therapeutic optometrists to, among other w
perform in the foknving manner:
A therapeutic optometrist may administer and prescribe
ophthalmic devices, over-the-counter oral medications, and
topical ocular pharmaceutical agen&* other than antiviral
agents and antiglaucoma agents, for the purpose of diagnosing
and treating visual defects, abnormal conditions, and diseases of
the human eye and adnexa.. . . This subsection does not
authorize an optometrist to treat glaucoma in a manner that was
not permitted by law on August 31.1991.3
Id Q 1.03(b) (footnotes added). Section 1.03(d) of the act requires the Texas
Optometry Board (the board) to “adopt rules setting forth the SW
pharmaceutical agents therapeutic optometrists may use in the practice of
therapeutic optometry,” and section 1.03(e) of the act creates a five-member
technical advisory committee to assist the board in “determining the specjic
pharmaceutical agents” that therapeutic optometrists may use. (Emphases added.)
A therapeutic optometrist violates the act if he or she uses any pharmaceutical agent
that the board or any law does not authorize the therapeutic optometrist to use? Id
Q 1.03(d).
‘“Adaed m- the lids and draina& ryrtcmof Ihc cya.’V.T.C.S.arts45521IJ2(8).
3Riorto~donAugust311991,optometristswbowueMdcrtbeeoDtroSmpuvkim,or
dir&ion of a physic&~could treat gtauoolnaaccordin to the pbyskiaa’r spuifk diwtkw See
V.T.C.S.art.4552-5.17.In our opinioq the uta&nent of cxtioa 1.03does not p&bit an optomctkst
or thcrapcoticoptomctrirtfrom cootiouiogto treat slpucoma ocadiogtooa~ph~a
apccitiedir~oos.
*Wcnot~thatthc~w~as``Dnrg~.Hcabh``~ctyCodt~,~
the passe&cm, delivery, and mamdachareof all prescriptiondrugs. See Health & Safety Code
f 483.001(3). Senate Bii 774 ameodccl the Da.ogerousDrug Act to add licenrccs of the Texas
OptomctyBoPrdtothe~ofpracti~authorLcdtowritc~ AcU1991,72dLcg,cb.
588,f a6; see Health & Safety C&e f 493.llOl(l2)(A). In addition, Senate Bill 774 mncadrd the
Dangerous Drug Act to rquirc pharmacists to determinethat a therapxtic optomctrirtis aWhorizcd
to prcsen’bc a particularmedicationbefore dispcnsiq the medication. AU6 1991,M Leg, fh. Sss,
f 27, at 2118;see Health & SafetyCc& 0 482X521;infm note 10;see also V.T.C!-S.
art. 4542a-1,f 17(w)
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Mr. Homer R. Goehrs. M.D., F.A.C.P. - Page 3 (EN-152)
In compliance with section 1.03(d) of the act, the board promulgated the rule
to be codified as title 22 of the Texas Administrative Code se&on 2805(g), (h) on
December 18, 1591.5 In subsection (g), the board stated that a therapeutic
optometrist may prescribe all ophthalmic devices, over-the-counter oral medica-
tions, and “topical ph armaceutical agents used for treating visual defects, abnormal
conditions, and diseases of the human eye and adnexa.” The rule then lists the
permitted topical pharmaceutical agents by classification or category, not ,by generic
or brand names.6 Section 280.5 expressly states that a therapeutic optometrist may
not use a drug falling within any of the listed categories to treat glaucoma in a
manner that the law did not permit on August 341991. 22 TAC 0 2805(g); see
supm note 3. The rule further expressly excludes any antiviral drugs falling within
the category of anti-infective classification of pharmaceutical agents that a
therapeutic optometrist permissibly may prescribe. 22 T.A.C. 0 280.5(g). Subject to
these two restrictions, however, the rule permits a therapeutic optometrist to
“possess and administer any topical ocular pharmaceutical agent which has a
legitimate diagnostic or therapeutic use”that falls within ‘one of the listed categories.
Id 3 2805(h).
You question the validity of the rule on two grounds. First, you claim that
the rule is inconsistent with section 1.03 of the act. Second, you appear to question
whether sections 1.02(7) and 1.03 of the act, which authorize therapeutic optome-
trists to prescribe certain pharmaceutical agents, violate article III, section 51-a of
the Texas Constitution. We consider your constitutional questionfirst.
You request our opinion as to whether article III, section 51-a of the Texas
Constitution “specifkally limits optometrists from treating Medicaid patients only,
or whether it is a broader prohibition.” Generally, article III, section 51-a excepts
assistance grants and medical care for needy aged, disabled and blind persons, and
for needy dependent children from section 51’s prohibition against legislative grants
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Mr. Homer R. Goehrs, M.D., F.A.C.P. - Page 4 (DES152)
of public moneys to private individuals or associations. See Tex. Const. art. III,
0951.51-a; 1 G. BRADEN,THE CONSITUTION OF THE =ATE OF TEXAS: AN
hINOTATED ANDCCm4PARATIvB hL4LY8Is at 236.46 (1977); R. WHITESIDE,THE
biFAt3 OF THE TEXAS CON8TlTUTION ON PUBUc WBLFARB 17.21 (1973).
However, the last paragraph of section 51-a state-s as follows:
Nothing in this Section shall be construed to amend, mod@
or repeal Section 31 of Artick XVI of &is Constitution;
provided further, however, that such medical care, se-n&es or
assistance shall also include the employment of objective or
subjective means, w&out the lake of drugs, for the purpose of
ascertainiq and measuring the powers of vision of the human
eye, and fitting lenses or prisms to correct or remedy any defect
or abnormal condition of vision. Nothing hen& shall be
cwstmed to pennit optometrists to treat the eyes for any defect
whatsoever in any manner nor to admintkt~ nor to pmc&e any
dmg orphysicaltmtment nhztsoever,unlesssuch optometrist is a
regularly licensed physician or surgeon under the laws of this
state.’ Fnphases and footnote added.]
Tea. Const. art. III, 0 51-a.
The history of the 1964 amendment to the constitution that added this
paragraph indicates that the legislature, recognizing a great need previously
unprovided among the state’s senior citizens, wanted to clarify that medical services
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Mr.HomerR. Goehrs, M.D., F.A.C.P. - Page 5 (w152)
authorized under section 51-a include the fitting of lenses to correct or remedy
defective vision. See Legislative Council, THREE ~N8TITUTIONAL AMENDMENTS
ANALYZED TO BE VOTED ON NOVEMBER 3, 1964, at 15. The first sentence of
section 51-a’s final paragraph therefore ensures that the medical services the state
provides to needy persons includes proper vision testing and fitting for corrective
lenses or prisms. We note that nothing in the sentence limits its application to
optometrists.
We construe the language we have italic&d in the second sentence of
section 51-a’s final paragraph simply to affirm that section 51-a. in and of itself, does
not authorize optometrists to administer or preei drugs or physical treatments to
needy persons receiving medical assistance. In our opinion, section 51-a’s statement
that “[nlothing herein shall be construed to permh optometrists to.. . administer
nor to prescribe” drugs or physical treatments does not mean that optometrists
constitutionally are prohibited from administering and prescribing drugs or physical
treatments. Rather, section 51-a merely leaves the legislature with the discretion to
authorize, by statute, therapeutic optometrists to administer and prescribe drugs or
physical treatments. Because the legislature now has enacted a statute permitting
therapeutic optometrists to administer and prescrii ophthalmic devices, over-the-
counter oral medications, and topical ocular pharmaceutical agents, article III,
section 51-a does not preclude therapeutic optometrists from administering and
prescribing drugs to Medicaid patients.
Having resolved your constitutional question in the negative, we turn to your
questions about the rule the board recently enacted, title 22 of the Texas
Administrative Code section 280.5(g), (h), pursuant to the legislature’s mandate in
section 1.03(d) of the act. We understand you first to argue that, while article
4552-1.03(b) precludes therapeutic optometrists from administering and prescriii
antiviral and antiglaucoma agents, the board has included in its list of pharmaceu-
tical agents therapeutic optometrists may use some drugs that serve as antiviral and
antiglaucoma agents, but that therapeutic optometrists legitimately may prescribe
for other conditions of the eye as well. You state that the board rule “includes those
[antiviral and antiglaucoma] agents under the premise that they would not be used
for those conditions. This is an untenable position and is contrary to the specific
language in”article 4552, section 1.03.
In our opinion, section 1.03(b) unambiguously and absolutely prohibits
therapeutic optometrists from administering and prescribing antiviral and
antiglaucoma topical ocular pharmaceutical agents, regardless of the use for which
the therapeutic optometrist is legitimately using the agent. Indeed, the legislative
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Mr. Homer R. Goehrs, M.D., F-4.C.P. - Page 6 (&I%?)
history indicates that Senate Bill 774 originally authorized therapeutic optometrists
to prescribe all topical ocular medications, but the bill was amended in committee
to “[l]imir [] therapeutic optometrists’ prescription authority to topical ocular agents
other than antiviral and antiglaucoma medications.” House Comm. on Public
Health, Bill Analysis, S.B. 774,72d Leg., R.S. (1992) (comparing original S.B. 774 to
C.S.S.B. 774). Given this legislative history, we believe that the legislature, if it had
intended to authorize therapeutic optometrists to use antiviral and anriglaucoma
agents for purposes other than treating viral infections or glaucoma, would have said
so expressly. We note that the rule expressly prohibits the use of any of tbe listed
drugsfor the treatment of glaucoma in a manner not permitted by law on August 31.
1991 (see supm note 3) and the use of any antiviral drugs that fall within the anti-
infective classification, but the rule does not otherwise limit the use of antiviral and
antiglauwma agents. 22 TAC. 0 2805(g)(3). Thus, to the extent that the rule
permits therapeutic optometrists to administer and prescrii drugs that are antiviral
or antiglaucoma agents - even if the therapeutic optometrist is using the drug for a
legitimate purpose unrelated to its antiviral or antiglaucoma properties- it is
invalid! See Attorney General Opinion JM-1149 (1990) at 2 (stating that courts will
not respect agency interpretation comrary to clear meaning of unambiguous
statute).
Next, you argue that subsection (9) of section 280.5, by listing pharmaceutical
agents therapeutic optometrists may use by classification or category, attempts “to
circumvent the specificity required by the language of’ section 1.03. We disagree.
We found no legislative history indicating what the legislature meant by its use of
the word “specific”in section 1.03(d). Thus, we attach the ordinary meaning to the
word. See Gov’t Code 0 312002(a). However, “specific,”as it is commonly used, has
a range of definitions, from “constituting or falling into a specific category” to
“definite or explicit.” Compare WEBSTER’SNORTHNEW COLLEGIATE DICITONARY
1132 (9th ed. 1990) wfttt Steed v. &ate, 180 S.W.2d 446, 447 (Tex. Civ. App.-
Texarkana), t&f on other grounds, 183 S.W.2d 458 (Tex. 1944). Considering the
absence of evidence as to the definition of “specifk” the legislature intended, the
board reasonably could construe the statute to authorize it to enact a rule listing
permitted topical ocular pharmace utical agents either by category or by generic or
brand name.
We note that the board in its rulemaking process considered whether listing
ph armaceutical agents by classification or category complied with statutory intent.
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Mr. Homer R. Goehrs, M.D., FAX-P. - Page 7 ct.!-152)
See Texas Optometry Board, 16 Tex. Reg. 7742 (comment to rule 280.5). The board
received several written comments on the issue. Ultimately, the board concluded
that “[i]t would be unreasonable to require a listing of every pharmaceutical agent
by brand or generic name, as the list would number into the several hundreds, and
would change on a regular basis.” Letter from Joe R. Greenhill, Jr., Counse.l, Texas
Optometry Bd. to C. J. Francisco, III, Texas Medical Assoc. (Dec. 18,199l). In our
opinion, the board reasonably concluded that listing by category the pharmaceutical
agents therapeutic optometrists are permitted to use. does not violate the legislative
intent underlying section 1.03 of the act.9 Thus, we conclude that section 280.5(g) of
title 22 of the Texas Administrative Code is not invalid for failing to meet some
statutorily required degree of spexificity.10 See Attorney General Opinion JM-1149
at 2 (stating that courts will give weight to agency’s interpretation of ambiguous
statute).
SUMMARY
Neither V.T.C.S. article 4552-1.03 nor title 22 of the Texas
Administrative Code section 280.5(g), (h) violates article III,
section 51-a of the Texas Constitution. To the extent that title
22 of the Texas Administrative Code section 280.5(g), (h)
permits therapeutic optometrists to administer and prescribe an
antiviral or antiglaucoma drugs even if for legitimate purposes
other than treating a virus or glaucoma, it represents an
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Mr. Homer R. Goehrs, M.D., F.A.C.P. - Page 8 W-152)
unreasonable construction of unambiguous language in V.T.C.S.
article 4552-1.03, and, to that extent, it is invalid. However, the
Board of Optometry reasonably construed section 1.03 to permit
the board to list by classification or category, rather than by
brand or generic name, those topical ocular pharmaceutical
agents a therapeutic optometrist may administer and prescribe.
‘DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RENEAHIcK!3
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
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