Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORNEY
GENERAL November 22, 1996
Patti J. Patterson, M.D., MPH Opinion No. DM-425
Acting Commissioner
Texas Department of Health Re: Whether a therapeutic optometrist
1100 West 49th Street may perform certain procedures (RQ-884)
Austin, Texas 78756-3 199
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, if they 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 “fining lensesor prisms”).
41d. an. 4552-1.02(7).
51d. an. 4552-1.02(8); see also STEDMAN’MEDICAL S DICTIONARY 26 (5th unabr. lawyers’ ed.
1982) (defining “adnexa” generally as “appendages; parts accessory to main organ or stmchm” and
“adnexa oculi” as “the eyelids, lacrimal glands, etc., associated with 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 a therapeutic 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 of the 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, as the Texas Optometry Act circumscribes that practice, he or
she is beyond the reach of the Medical Practice Act.
‘Id. art 4552-1.03(b).
We understand that you have taken your 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. 2372
Patti 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 ‘96,12 which 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. 16 We 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’ CURRENT PROCEDURAL TERMINOLOQY ‘% at
231-32,240,242 (1995).
13The Health Care Financing Administration’s Common Procedure Coding System (“HCPCS”)
baa three levels of codes. GARY M. KNAUS. CF’T& HCF’CS CODINGFOROPTIMALFU``JRSEMENT4
(1987). The first level, which classities physician procedures and services, see id. at 7, is the American
Medical Association’s Current F’rocedoralTerminology (“CPT”). Id. at 4. The second and third levels
classify supplies, services, and procedurea, id.; they are not at issue here.
14SeeV.T.C.S. art. 4495b. 5 1.03(a)
15SeeAct of May 21,1991,72d Leg., RS., ch. 588.5 I,1991 Tex. Gen. Laws 2106,2108.
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 directed particularly at 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. 2773
Patti 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, “19 where 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 to judicial 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 a therapeutic 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 THE OXFORD
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) at 3,
O-2911 (1940) at 2.
p. 2374