Judges: Jim Smith, Attorney General Prepared by: Percy W. Mallison, Jr., Assistant Attorney General
Filed Date: 4/30/1980
Status: Precedential
Modified Date: 7/5/2016
Ralph D. Turlington Commissioner of Education Tallahassee
QUESTIONS:
1. When referring its visually impaired clients for initial eye examinations, is the Division of Blind Services required to refer them on an equal basis to optometrists and ophthalmologists?
2. If the answer to question 1 is in the negative, is the division permitted to use its discretion in determination to whom a client should be referred for an initial eye examination?
3. If, in his application for an initial eye examination, a client indicates his preference for either an optometrist or an ophthalmologist, may the division legally honor that request?
SUMMARY:
Since there is no provision of state law which clearly requires the Division of Blind Services of the Department of Education to refer its visually impaired clients to optometrists on an equal basis with other persons providing similar services, until legislatively or judicially construed otherwise, the division is not required to do so; those clients the division serves pursuant to the Federal Rehabilitation Act of 1973, as amended, have the right to choose whether they wish to be examined by an optometrist or an ophthalmologist but the division is otherwise free to exercise its reasonable discretion in referring other clients not served under the federal act for initial eye examinations; and the division may honor the request of a client not participating in the federally funded program to be examined by either an optometrist or ophthalmologist.
STATEMENT OF FACTS:
The Division of Blind Services of the Department of Education is charged by law with the responsibility of `provid[ing] for the examination and treatment of the blind, or those threatened with blindness . . . .' Section
The visual services provided by the division are both evaluative and remedial. In this way they meet the division's twofold obligation to provide both for the examination and the treatment of the blind or those threatened with blindness. A client is initially referred for a diagnostic evaluation to determine program eligibility and to provide a prognosis for future treatment. Those clients who are found to be eligible are then referred for treatment. You indicate that the division has adopted a policy of referring each of its visually impaired or deficient clients to an ophthalmologist for an initial eye examination regardless of whether medical treatment by such a physician is ultimately required. The justification for this referral policy, as I understand it, is that the division has determined that approximately 75 percent of its referral clients eventually are found to suffer from eye pathologies which can be treated only by a medical doctor specializing in ophthalmology. A client who is initially referred to an optometrist for examination would then have to be sent to an ophthalmologist for treatment. You indicate that an ophthalmologist would conduct his own examination before proceeding with treatment, thereby increasing program costs. At the present time, no initial referrals for visual examinations are being made to optometrists.
An ophthalmologist is a physician specializing in the study and treatment of defects and diseases of the eye. Webster's Third NewInternational Dictionary (1966 ed.). An optometrist, on the other hand, is a person licensed to practice optometry in this state. Section
. . . the diagnosis of the human eye and its appendages; the employment of any objective or subjective means of methods for the purpose of determining the refrative powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages.
AS TO QUESTION 1:
The first question you pose is a direct result of a recent demand made of the Division of Blind Services by the Florida Optometric Association. As I understand it, the association feels that the division, in refusing to refer clients to optometrists for initial eye examinations, is discriminating against members of its ranks in contradiction of the spirit, of not the letter, of s.
Any agency of the state . . . administering . . . health service under the laws of the state shall accept the services of optometrists licensed in this state for the purposes of diagnosing and correcting any and all visual, muscular, neurological, and anatomic anomalies of the human eyes and their appendages of any persons under the jurisdiction of said agency . . . on the same basis and on a parity with any other person authorized by law to render similar professional service, when such services are needed . . . .
Ordinarily, administrative agencies are afforded a great deal of discretion in the exercise of their powers. When, as here, a statute confers a general grant of power unaccompanied by definite direction as to how that power or authority is to exercised, the implication is that the agency has a right to employ the means and the methods necessary to comply with the statute. See s.
The question to be faced here, however, is whether s.
My research indicates that this language was first added to the optometry statute in 1939. See s. 12, ch. 19031, 1939, Laws of Florida. The title to that act described it as `making (optometrists') services available on a parity with those of any other profession performing similar services.' (Emphasis supplied.) In accordance with the provisions of the Regulatory Reform Act of 1976 (see s. 3, ch. 76-168, Laws of Florida, as amended by s. 1, ch. 77-457, Laws of Florida), the Florida optometry law was repealed effective July 1, 1979. The present optometry law was enacted during the 1979 session, and s.
The title certainly conveys no notice of any such legislative intent or purpose, and I apprehend that, had the Legislature purposed any such mandatory requirement or the imposition of any
mandatory duty in that regard on the Division of Blind Services or any other state or local governmental agency, it would have done so clearly and unequivocally. Cf. State ex rel. Housing Auth. of Plant City v. Kirk,
Consequently, in view of the fact that the statutory language is not clear and since I am without benefit of any explicit enunciation of the legislative intent or judicial construction, I cannot say that the division is required by s.
AS TO QUESTION 2:
In view of the answer given to question 1, it is appropriate for me to answer your second question. As I explained in the answer to your first question, when not restrained by law, an administrative agency is ordinarily afforded a great deal of discretion to determine the best way to carry out its assigned responsibilities. However, that discretion must be exercised in a reasonable manner and may not be exercised arbitrarily or capriciously. In this regard, the Legislature has recognized that optometrists are capable of diagnosing the human eye and its appendages and that they may employ `any objective or subjective means or methods for the purpose of determining . . . any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages. . . .' (See s.
The division's discretion to determine to whom a client should be referred for an initial eye examination has also been displaced in those instances when the division is providing services pursuant to the Federal Rehabilitation Act of 1973. Those services which the division provides pursuant to the federal act must be delivered in accordance with the directions of that act. See State of Florida v. Mathews,
(a) Vocational rehabilitation services provided under this chapter are any goods or services necessary to render a handicapped individual employable, included but not limited to the following:
(4) physical and mental restoration services, including, but not limited to, . . . (D) eyeglasses and visual services as prescribed by a physician skilled in the diseases of the eye or by an optometrist, whichever the individual may select . . . . (Emphasis supplied.)
The federal regulations adopted pursuant to the rehabilitation act also recognize that the individual client has the right to choose whether he wishes to be seen by an opthalmologist or an optometrist. For example, in 45 C.F.R. s. 1361.35(c) (1977 ed.), it is provided that `[t]he State plan shall provide that in all cases of visual impairment, an evaluation of visual loss will be provided by a physician skilled in the diseases of the eye or by an optometrist, whichever the individual may select . . . .' (Emphasis supplied.) In addition, s. 1521.07 of the Vocational Rehabilitation Manual published by the U.S. Department of Education (formerly the Department of Health, Education, and Welfare) suggests that `agency policy provide for free choice bythe client of physicians skilled in diseases of the eye or optometrists . . . .' (Emphasis supplied.) Moreover, s. 1.1 of Florida's Plan for Vocational Rehabilitation Services expressly states:
As a condition to receipt of Federal funds under Title I of the Rehabilitation Act of 1973, as amended, for vocational rehabilitation services and for innovation and expansion grant projects, the Department of Education submits this State Plan for vocational rehabilitation services and agrees to administer the program in accordance with this State Plan, the [Federal] Act, and all applicable regulations, policies and procedures established by the Secretary. (Emphasis supplied.)
Finally, in s. 7.4 of the state plan, the State Department of Education agreed to provide a thorough diagnostic study to determine the nature and scope of services needed by the individuals participating in the program and specifically agreed that the diagnostic study would include the special examination and evaluations required by 45 C.F.R. s. 1361.35(c). That provision, set out above, grants the client the right to choose whether to be examined by an optometrist or an ophthalmologist.
The answer to your second question, then, is that, when it is providing visual services under the Federal Rehabilitation Act of 1973, as amended, the division must permit its clients to choose to whom they wish to be referred for an initial diagnostic eye examination; however, when it is providing for other types of visual services, the division may exercise a reasonable discretion in deciding to whom to refer its clients, but it should not arbitrarily refuse to refer them to optometrists for those services which the Legislature has recognized optometrists as capable of providing.
AS TO QUESTION 3:
As I indicated in the answer to question 2, the Federal Rehabilitation Act of 1973 grnats the client the right to choose to whom he wishes to be referred for visual services. When the division is providing visual services pursuant to this federal act, it must permit the client to choose whether he wishes to be examined by an optometrist or an ophthalmologist and then refer the client to whichever he prefers. I can see no reason why the division could not honor a similar request made by a client not participating in the federal program. So long as the individual for whom the client indicates a preference is capable of providing the services which the division deems essential to meet its statutory obligations, there is nothing in the law which in my opinion would prevent the honoring of such a request.
Prepared by: Percy W. Mallison, Jr., Assistant Attorney General