The opinion
The Attorney General of Texas
MARK WHITE
Attorney General July 30, 1982
Honorable Bill Clayton opinion No. w-499
Supreme Court SuildinQ
Speaker of the Rouse of
P. 0. Box 1254S
Austin. TX. 78711.2548
Representatives Re: Use of topical ocular
512/475-2501 Capitol Building pharmaceutical agents by
Telex 910(874~1367 Austin, Texas 78711 optometrists, and related
Telecopier 512l475-0255 matters
1507 Main St.. Suite 1400
Dear Speaker Clayton:
Dellas. TX. 75201.4709
2W742-8944 You have posed several questions concerning the authority of the
Texas State Board of Medical Examiners to promulgate and enforce
administrative rules ~implementing section 3.06(d)(5) of the new
4S24 Alberta Ave., Suite 160
El Paso. TX. 799052793 Medicalt;;actice Act, article 4495b. V.T.C.S. That subsection deals
91515333484 with administration by optometrists of topical ocular
pharmaceutical agents, which are medicinal drugs applied to surface
areas of the eye that produce effects which aid in the examination or
1220 Dallas Ave., Suite 202
Houslon. TX. 770026986
treatment of eye diseases or conditions. Your letter to us states:
71-
On Sunday, Pebmary 21. 1982, the Medical Board
met and tentatively adopted rules to implement
606 Broadway, Suite 312 Section 3.06(d)(5).... These proposed rules
Lubbock, TX. 7S401-3479
e@i747-5238
appear to violate both the letter and the intent
of the law, and appear to exceed the Medical
Board's rulemaking authority....
4249 N. Tenth. Suite 6
McAllen, TX. 78501.1685 Section 3.06(d)(5) reads in part:
512mw4547
(d) This Act shall be so construed that:
200 Main Plaza, Suite 400
San Antonio, TX. 782052797 ....
51212254191
(5) (A) A duly licensed and qualified
An Equal Opportunity/ optometrist may administer topical ocular
Affirmative Action Employer pharmaceutical agents in the practice of optometry
as provided by this subdivision. These
pharmaceutical agents may not be used for
therapeutic purposes.
(B) To be entitled to use topical ocular
pharmaceutical agents in the practice of
optometry, an optometrist must possess a valid
standing delegation order that:
p. 1788
. .
Honorable Bill Clayton - Page 2 (Mw-499)
(0 is issued to the optometrist by an
area physician licensed to practice
medicine in this state; and
(ii) authorizes the use of the pharmaceu-
tical agents authorized by this
subdivision.
(C) On request, an optometrist will be
Issued a standing delegation order described by
Paragraph (B) of this subdivision unless the
physician acting as a reasonable and prudent
physician determines that denial is within the
scope of sound medical judgment as it pertains to
optometry, or that it is not in the public
interest, and the basis for denial shall be given
to the requesting optometrist in writing if
requested. It is necessary that the physician
have knowledge of the requesting optometrist, and
if not, then same shall be good cause for denial.
(G) tr;zician who has issued a standing
delegation 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 issuance or the continuance of the
standing delegation order.
(8) Nothing herein is intended to limit
or expand the practice of optometry as defined by
_law. (Emphasis added).
Among other things, the tentatively adopted administrative rules
that you question purport to specify restrictive terms and conditions
for standing delegation orders issued by physicians and to prescribe a
model form for such orders. The portion of section 3.06(d)(5) that
speaks to the role of the Board of Medical Examiners in this process
reads:
(D) A standing delegation order issued under
this subdivision or a representation of the order
will be prominently displayed in the office of the
optometrist. The board will prescribe the form of
the standing delegation order and the certificate
or representation of the order. The standing
delegation order, as a minimum. will:
p.1789
Honorable Bill Clayton - Page 3 ww-499)
(0 be in,writing. dated and signed by the
physician;
(ii) specify the available topical ocular
pharmaceutical agents, including but not
limited to topical anesthetics and dilating
agents, to be administered in the office; and
(iii) specify that said agents shall not be
used for therapeutic purposes.
(E) On the complaint of any person or on its
own initiative, the board of medical examiners may
cancel a standing delegation order issued under
this~section if it determines that the optometrist
possessing the order has violated the standing
delegation order or this section.
(PI Except as provided by Paragraph (E) of
this subdivision, a. standing delegation order
issued under this subdivision remains valid as
long as:
(i) the physician who issued the order is a
resident of this state and is licensed to
practice medicine in this state;
(ii) no irregularities are found on annual
review; and
(iii) the order is not canceled for good cause
by either party.
Several of your questions concern the application of specific
rules to specific situations, but all of them deal with the power of
the Board of Pledical Examiners to limit or control the discretionary
authority of physicians to invest optometrists with privileges
respecting the use of such pharmaceutical agents. Before addressing
your specific questions, it is necessary to notice the relationship
the drugs have to the practice of optometry.
Au optometrist who administers topical ocular pharmaceutical
agents does not practice optometry when he does SO, whether or not he
acts under a standing delegation order issued by a physician. The
"practice of optometry" is legally defined by the Texas Optometry Act.
article 4552-1.02. V.T.C.S.. aa:
the employment of objective or subjective means,
without the use of drugs, for the purpose of
ascertaining and measuring the powers of vision of
the human eye, and fitting lenses or prisms to
p. 1790
/ .
Honorable Bill Clayton - Page 4 (Mw-499)
correct or remedy any defect or abnormal condition
of vision. Nothing herein shall be construed to
permit optometrists to treat the eyes for any
defect whatsoever in any manner nor to administer
nor to prescribe any drug or physical treatment
whatsoever, unless such optometrist is a regularly
licensed physician or surgeon under the laws of
this state. (Emphasis added).
Although subsections (A) and (B) of section 3.06(d)(5) of the
Medical Practice Act speak of the use of topical ocular pharmaceutical
agents "in the practice of optometry," section 3.06(d)(S)(R) specifies
that nothing in the act is intended to "limit or expand the practice
of optometry as defined by law." (Emphasis added). Words may be
supplied to a statute in order to give effect to the clear legislative
intent. Sweeny Hospital District v. Carr, 378 S.W.Zd 40 (Tex. 1964).
We believe the words, "in the practice of optometry." as used in
subsections (A) and (B) must mean "in connection with-the practice of
optometry." (Emphasis added). Otherwise, the section would be
internally inconsistent. One subsection would nullify others. The
legislative intent is made clear, in our opinion, by section
3.06(b)(2). which states that the act does not apply to "duly licensed
optometrists who confine their practice strictly to optometry as
defined by law." (Emphasis added). The disputed provisions of the
act do not allow optometrists to use drugs as an integral part of the
practice of optometry.
The legislature has clearly indicated its intent that the use of
such pharmaceutical agents be regulated when administered by
optometrists in connection with the practice of optometry. Under its
police power, the legislature may place such regulatory power where it
chooses so long as no provision of the constitution is contravened.
See Francisco v. Board of Dental Examiners. 149 S.W.2d 619 (Tex. Civ.
G. - Austin 1941, writ ref'd). See also Trimble v. Texas State
Board of Registration for Professional Engineers, 483 S.W.2d 275 (Tex.
Civ. App. - El Paso 1972, writ ref'd n.r.e.).
Your first two questions are as follows:
1. With regard to the implementation of
section 3.06(d)(S) of the PiedicalPractice Act, is
the authority of the Medical Board limited to the
roles specifically stated in section
z6(d)(5) , &,
I e (1) to prescribe the form of the
standing delegation order and the certificate or
representation of the order, and (2) on complaint
of any person or on its own initiative to cancel a
standing delegation order if it determines that
the optometrist possessing the order has violated
the standing delegation order?
p. 1791
Bonorable Bill Clayton - Page 5 (Mw-499)
2. (a) In performing its function of
prescribing the form of the 3.06(d)(5) standing
delegation order and its representation, is the
authority of the Medical Board limited to
prescribing matters of form rather than
substantive content?
(b) Beyond the substantive requirements
expressly stated in the statute, is the
substantive content of a 3.06(d)(5) standing
delegation order to be determined solely by the
delegating physician and the optometrist?
(c) If the Medical Board may impose
requirements on the substantive content of a
3.06(d)(5) delegation, to what extent may they do
so? Particularly, may the Medical Board make
medical or optometric judgments and impose them
upon the delegating physician and the optometrist?
Section 3.06(d)(S) assigns no role in the issuance or'
cancellation of a standing delegation order to anyone other than the
board and individual physicians. To ascertain the authority of the
board, we must first consider the extent of authority conferred upon
physicians.
Subsection (d)(5)(B)(i) requires that a standing delegation order
be issued to an optometrist "by an area physician licensed to practice
medicine in this state." Subsection (d)(S)(C) seemingly requires an
area physician to issue such an order unless the physician, "acting as
a reasonable and prudent physician" determines (1) that denial is
within the scope of sound medical judgment as it pertains to
optometry, or (2) that it is not in the public interest. Lack of
"knowledge" by the physician of the optometrist is also specified as
good cause for denial.
Subsection (d)(S)(F) provides that a standing delegation order
may be invalidated by the issuing physician only if he moves his
residence from the state, surrenders his license, discovers
irregularities on annual review, or cancels the order "for good
cause." The order can be cancelled by the board only if it determines
that the optometrist "has violated the standing delegation order" or
section 3.06 of the act. V.T.C.S. art. 4495b. 13.06(d)(S)(E). Also,
subsection (d)(S)(G) specifies that an issuing physician is immune
from liability for acts performed pursuant to the standinn
- delenation
-
order so long as he has used prudent judgment in its issuance -or
continuance.
Given its widest scope, the language of section 3.06(d)(5) would
empower a physician to authorize an optometrist to administer (for
nontherapeutic purposes) any topical ocular pharmeceutical agent to
p. 1792
.
Honorable Bill Clayton - Page 6 (Mw-499)
any person in his office at any time. Moreover, only the issuing
physician could effect a cancellation of the order unless a violation
of the order as issued by the physician (or a violation of the
statutory section) were proved.
We agree with your contention that it was the manifest intent of
the legislature to invest individual physicians with broad power of
the sort described above. But, in our opinion, such a reading of
section 3.06(d)(5) renders it unconstitutional.
By act of an issuing physician, an optometrist may, under the
provisions of subsection (d)(S), obtain official permission and a
personal right to perform acts on his own account, f.e.. without any
form of supervision by the physician. The issuing physician is,
moreover, statutorily authorized to base his decision to issue or to
decline to issue the permitting order on his perception of "the public
interest." Thus, the statute in effect authorizes the myriad private
physicians in this state to act as licensing agents for the state,
granting or withholding such licenses as each deems best for "the
public interest."
The scheme of the statute raises serious questions about the
constitutionality of delegating such public powers to private
individuals who are neither members of the executive branch of
government. nor answerable to the public. See Tex. Const. qt. I, $2,
art. II, il. art. III, $1; Gerst v. Nixon.%i S.W.Zd 350 (Tex. 1966)
(granting of permits is administrative function); Attorney General
Opinion H-41 (1973) (control of dentistry by private organization).
See also Tex. Const. art. I. 117 (legislative control of privileges).
We need not address those questions here, however; because in our
opinion the virtually unlimited nature of the discretion placed in the
physicians is sufficient to invalidate the statute.
In Bloom v. Texas State Board of Examiners of Psychologists, 492
S.W.2d 460. 462 (Tex. 1973). the Supreme Court of Texas characterized
the question before it as:
whether the Legislature could constitutionally
empower an administrative agency to do whatever it
'may' consider in the best interest of the public
without regard to statutory standards or published
agency rules.
In concluding that the legislature could not do SO, the court relied
on this quotation from Railroad Commission v. Shell Oil Company. 161
S.W.Zd 1022, 1025 (Tex. 1942):
It is a well-established principle of
constitutional law that any statute or ordinance
regulating the conduct of a lawful business or
industry and authorizing the granting or
p. 1793
..
Honorable Bill Clayton - Page 7 (Mw-499)
withholding of licenses or permits as the
designated officials arbitrarily choose, without
setting forth any guide or standard to govern such
officials in distinguishing between individuals
entitled to such permits or licenses and thoee not
so entitled, is unconstitutional and void.
Subsection 3.06(d)(5)(C) requires an area physician to issue a
standing delegation order unless he determines. "as a reasonable and
prudent physician," that denial is either "within the scope of sound
medical judgment as it pertains to optometry." or "in the public
interest." A requirement that a licensure decision% based on "sound
medical judgment" might establish a sufficient statutory standard to
avoid invalidity. And the phrase "in the public interest" might
furnish an adequate statutory standard in some situations, i.e., as 8
guide for some adminietrative agencies. But in our *ion a
statutory declaration -- without more -- that licensure decisions are
to be made by individual physicians on the basis of their varied
personal concepts of "the public interest" clearly doee not don so.
See Tex. Const. art. III, Sl; Bloom v. Texas State Board of Examiners
ofPsychologists. s; Railroad Coteniesion v. Shell Oil Company,
supra.
In Sx parte Leslie, 223 S.W. 227, 229 (Tex. Grim. App. 1920). the
court considered a Live Stock Sanitary Commission rule, proclaimed
pursuant to a penal statute, requiring cattle owners to have their
cattle dipped unless an agent of the commission deemed it "safe or
expedient" to excuse them from doing so. In finding the measure
unconstitutional, the court observed that the power of the agents to
discriminate between individuals under such a proclamation:
is required to rest upon no distinction, but
permits those executing it to select, without
giving reason therefor. those who shall obey it
and those who shall be exempted from its penalty.
No condition is named to which a citizen
complaining of discrimination can point as
condemning the action of those executing the law.
No fact is named in the law or in the proclamation
which he may establish and urge as a matter of
right as exempting him from the penalty.
In the eituation before us, the legislature has made the
administration of topical ocular pharmaceutical agents by optometrists
unlawful and fixed a penalty therefor, but provided that individual
physicians may use their own discretion in selecting optometrists to
be exempted from the penalty. As with the selections made by live
stock sanitary commission agents, the power of physicians to
discriminate among individuals rests on no distinction. No condition
is named to which an optometrist complaining of discrimination can
point as condemning the action of those executing the law, nor is any
p. 1794
I .
. .
Honorable Bill Clayton - Page 8 (MN-499)
fact named which an optometrist may establish and urge as exempting
him from the penalty as a matter of right.
It would be difficult enough for an administrative agency to
apply the "in the public interest" standard with any degree of
precision. The thousands of physicians in this state can hardly be
expected to do so, however, inasmuch as each will inevitably have a
separate and probably different concept of what is "in the public
interest." Uniformity in the application of the "public interest"
standard is, therefore, an impossibility here.
In Railroad Commission v. Shell Oil Company. s. the Texas
Supreme Court observed that an ostensible "prevention of waste"
standard was really no standard at all if the same facts could serve
in one instance to exempt a person from the general prohibition of the
law and to deny exemption to a different person in another instance.
Under the statute here, the application of one optometrist for a
standing delegation order could be denied by a physician on facts
deemed sufficient by that same physician, or another, to support the
application of a different optometrist. Statutory delegations of
power may not be constitutionally accomplished by language so broad
and vague that persons of common intelligence must necessarily guess
at its meaning and differ as to its application. *e Texas
Antiquities Committee v. Dallas County Community College Dissct, 554
S.W.Zd 924 (Tex. 1977); Spann v. City of Dallas, 235 S.W. 513 (Tex.
1921). See also United 7:hiropractors of Washington, Inc. v. State,
578 P.2d38 (Wash. 1978): Blumenthal V. Board of Medical Examiners.
368 P.2d 101. (Cal. 1962) 'm Iated power must be accompanied by'
suitable safeguards to guide its use and to protect against its
misuse).
Inasmuch as we believe subsection 3.06(d)(S) of the Medical
Practice Act is unconstitutional, we conclude that it neither confers
authority on the Board of Medical Braminers or individual physicians,
nor deprives them of any authority. Your questions are referable to
this subsection, and to the extent that they are, they are answered by
the foregoing conclusion. But in the interest of clarity we will
briefly discuss the remainder of the Medical Practice Act insofar as
it relates to the topic at hand.
The invalidity of subsection 3.06(d)(S) in no way diminishes the
authority of the Board of Medical Examiners to promulgate rules
respecting the practice of medicine and the enforcement of valid
provisions of the act. V.T.C.S. art. 4495b. 111.02(8), 2.09(a).
3.06(d)(l). (2). (3). 5.02(a). See Acts 1981. 67th Leg., 1st C.S.,
ch. 1. 15 at 1, 36 (severability clause). Cf. Texas State Board of
Examiners in Optometry v. Carp, 412 S.W.Zd 30mTex. 1967). The board
has express authority to regulate the use of dangerous drugs by
physicians and those acting under the supervision of a physician.
V.T.C.S. art. 4495b, 13.08(4)(E). (F), (I); Dotson v. Texas State
Board of Medical Examiners. 612 S.W.2d 921 (Tex. 1981); Scott v. Texas
p. 1795
Honorable Bill Clayton - Page 9 (Mu-499)
State Board of Medical Rxaxiners. 384 S.W.Zd 686 (Tex. 1964). See
also V.T.C.S. art. 4495b. 13.06(d)(2). (31, 3.07(i). It is tobe
xd that under the delegations validly authorired by the Medical
Practice Act (unlike those contemplated by eubsectiox 3.06(d)(S)) the
delegating physician is not permitted to escape respoxsibility for the
acts of his delegates. Thue. he does not act as a licensing agent for
the state in such circuxstances inasmuch as he cannot empower his
delegates to act on their own account. They are his agents. See
Attorney General Opinion FM-275 (1980). Cf. 8parger v. War-
Hos ital Inc., 547 S.W.2d 582 (Tex. 1977); Attorney General Opinion
.iGihfmr
It should also be noted that the Texas Optometry Act gives
optoxetrists no license to use drugs for any purpose, therapeutic or
not, and that optometrists are aot among those permitted by the
dangerous drug laws to deliver dangerous drugs in their practice. See
V.T.C.S. arts. 4476-14, 4476-15, 4552-1.01 et seq. SubsectiK
3.06(d)(l), (2) and (3) of the Medical Practice Act. however, would
permit physicians, “through physicians orders, standing wdical
orders, standing delegation orders. or other orders where applicable,
as the orders are defined by the board [of Medical Exaxinersl,” to
authorize optometrists, as agents of the physician, to perform medical
acts and to administer dangerous drugs under certain conditions.
(Bxphasis added).
SUMMARY
Subsection 3.06(d)(5) of article 4495b, the
Medical Practice Act of 1981. Is unconstitutional.
Very truly yours,
,
Attorney General of Texas
JOHLPW. FAINTER.JR.
First Assistant Attorney General
RIClURD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attornsy Genaral
p. 1796
. . .
Honorable Bill Clayton - Page 10 (Mw-499) -
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Robert Gauss
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1797