Legislature(2017 - 2018)BARNES 124
04/01/2017 01:00 PM LABOR & COMMERCE
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HB 103-OPTOMETRY & OPTOMETRISTS 3:04:06 PM CHAIR KITO announced that the first order of business would be HOUSE BILL NO. 103, "An Act relating to the practice of optometry; and providing for an effective date." [Before the committee was CSHB 103(HSS).] 3:04:34 PM REPRESENTATIVE IVY SPOHNHOLZ, Alaska State Legislature, Juneau, Alaska, as the sponsor, re-introduced HB 103. She explained that HB 103 would update the Board of [Examiners in] Optometry to be more in line with the practices that are consistent with those other boards overseeing health professions throughout the state of Alaska. It would give the board the authority to regulate its own practice and would move management of optometrists away from the legislature and into the board. 3:05:45 PM CHAIR KITO moved to adopt Amendment 1, labeled 30-LS0459\J.5, Bruce, 3/28/17, which read: Page 2, lines 6 - 7: Delete "standards for the practice of optometry as provided" Insert "whether optometry practice procedures or policies comply with acceptable standards of the practice of optometry, as provided" 3:05:57 PM The committee took a brief at-ease. 3:06:34 PM CHAIR KITO again moved to adopt Amendment 1. 3:07:04 PM REPRESENTATIVE JOSEPHSON said he is unable to tell what the [proposed] change is. REPRESENTATIVE SPOHNHOLZ explained Amendment 1 would tighten the definition of standard of practice in a manner that is consistent with the exact language that is used by the Board of Nursing. She said the amendment is at the recommendation of the Department of Law to ensure that the definition of the standard of practice is clearly defined as complying with acceptable standards of practice of optometry. According to the Department of Law, she added, this would tighten the definition of standard of practice in a way that makes it more useful. 3:07:59 PM There being no objection, Amendment 1 was adopted. 3:08:04 PM The committee took a brief at-ease. 3:08:42 PM REPRESENTATIVE JOSEPHSON moved to adopt Amendment 2, labeled 30- LS0459\J.1, Bruce, 3/27/17, which read: Page 1, line 9, following "disease": Insert "as provided under AS 08.72.272" CHAIR KITO objected for purposes of discussion. 3:08:52 PM REPRESENTATIVE JOSEPHSON explained Amendment 2. He related that in oral testimony and written comments, several ophthalmologists stated that they don't prescribe anything more powerful than hydrocodone, which, to his knowledge, was not controverted. He further related that these ophthalmologists stated that eyes do not respond well to pain medication. He said that as he reads the bill, it would provide that optometrists could prescribe any [pharmaceutical] ever invented. REPRESENTATIVE JOSEPHSON further explained that Amendment 2 is consistent with a forthcoming amendment which would repeal language that would give optometrists the authority through their board to prescribe anything they want to. Amendment 2, he stated, would return to existing language in Alaska Statute (AS) 08.72.272. He said it would be hard to say optometrists didn't make certain arguments about the need to oversee their own practice. However, he continued, they didn't make any arguments in testimony or in writing about why they needed to expand the kinds of prescriptions they make. Given the crisis the state is confronted with, he said he doesn't know why that expansion is necessary, which is why he is offering Amendment 2. 3:11:13 PM REPRESENTATIVE SULLIVAN-LEONARD inquired as to what AS 08.72.272 describes in detail. REPRESENTATIVE JOSEPHSON replied that Amendment 2 would bring this back to current law that exists under [AS 08.72.272], Pharmaceutical Agents, subsection (a), which says optometrists can prescribe for assorted things. Amendment 2, he said, says the status quo will prevail and optometrists will have the authority that they currently have to prescribe. 3:12:11 PM REPRESENTATIVE SPOHNHOLZ rebutted that part of the intent of the legislation was to simplify and to streamline the legislation authorizing the [Board of Examiners in Optometry] to oversee their practice. She related that [the board] has testified it will continue to work with the four-day limitation on the supply of opioids, for example. Also, she continued, other regulation is being put into practice regarding the opioid epidemic, which she strongly feels the legislature needs to address by advancing HB 159 for that purpose. She said she understands the maker of the amendment's concerns, but the statutory language currently in place is outdated and leaves [legislators] in a position of overseeing specific kinds of medications for which [legislators] don't have the expertise to be managing. Therefore, it is better to have this authority placed at the board level, she stated. 3:13:19 PM REPRESENTATIVE BIRCH spoke against Amendment 2. He recalled the committee hearing testimony about what an optometrist could prescribe and that nurses could not prescribe [narcotics]. However, he continued, he was informed by a friend who is a nurse that nurses can prescribe narcotics in Alaska, have done so for decades, and that nurses need the same Drug Enforcement Administration (DEA) authority as a physician or any other clinician. Therefore, he said, he is not troubled about providing the latitude proposed [in HB 103]. 3:14:01 PM REPRESENTATIVE KNOPP asked whether Section 4, page 2, of the bill does what the maker of the amendment is trying to do. REPRESENTATIVE JOSEPHSON responded, "This brings us back to the overall." What he means, he continued, is it makes the board the ultimate decider about what those prescriptions should be, and he is not comfortable with that. The people who testified have spent more time than anyone else working on eye care and they said they never use more than hydrocodone. Under current law, he continued, "optometrists can do that very thing, but [HB 103] would lift that and say, 'prescribe what you want,' if that [is] what the board says, 'prescribe what you will.'" He further noted it means that the attorney general would have to look at this language and determine whether the board acted consistent with the language [of HB 103 in section 4, page 2], and he would conclude that as long as they establish the what, where, and why of what they were doing, maybe they would say yes. "But," he added, "that is our point we'd make it valid and ? there's that argument that the attorney general would have to give them that authority." 3:16:00 PM REPRESENTATIVE WOOL offered his understanding that optometrists can already prescribe certain controlled substances. He said he doesn't see that as being a problem in the past; it is a responsibility that [optometrists] have handled. 3:16:30 PM CHAIR KITO maintained his objection to Amendment 2. A roll call vote was taken. Representatives Josephson voted in favor of Amendment 2. Representatives Knopp, Sullivan-Leonard, Wool, Birch, and Kito voted against it. Therefore, Amendment 2 failed by a vote of 1-5. 3:17:10 PM REPRESENTATIVE JOSEPHSON moved to adopt Amendment 3, labeled 30- LS0459\J.2, Bruce, 3/27/17, which read: Page 2, lines 20 - 24: Delete all material. Renumber the following bill sections accordingly. 3:17:12 PM CHAIR KITO objected. REPRESENTATIVE JOSEPHSON explained Amendment 3. He said it is the same argument as Amendment 2, and that he is not convinced the board has the training, education, and experience to make decisions about pharmaceutical agents in every case. While he is comfortable in some cases, [the bill proposes] to expand this in a way that is, in his view, far beyond [the board's] training and therefore he is offering Amendment 3. REPRESENTATIVE SPOHNHOLZ opposed Amendment 3. She said her comments on the amendment are much the same as for Amendment 2. The language in Section 4, she stated, is clear that the pharmaceutical agent prescribed needs to be consistent with their standards of practice. Like optometrists, there are other professions that have the authority to practice within this scope that have not gone to medical school and therefore are not under the [State Medical Board]. REPRESENTATIVE BIRCH said he has similar concerns as he voiced before in that if the board is recognized as having the capacity and the ability to make those recommendations, it is not dissimilar from other clinicians in that line of work. 3:19:00 PM CHAIR KITO maintained his objection to Amendment 3. A roll call vote was taken. Representative Josephson voted in favor of Amendment 3. Representatives Birch, Sullivan-Leonard, Knopp, Wool, and Kito voted against it. Therefore, Amendment 3 failed to be adopted by a vote of 1-5. 3:19:30 PM REPRESENTATIVE JOSEPHSON moved to adopt Amendment 4, labeled 30- LS0459\J.3, Bruce, 3/27/17, which read: Page 2, following line 24: Insert a new bill section to read: "* Sec. 5. AS 08.72.273 is repealed and reenacted to read: Sec. 08.72.273. Non-invasive procedures. Except as provided in AS 08.72.278, a licensee may perform non-invasive procedures including (1) removing superficial bodies from the eye and its appendages; (2) epilating misaligned eyelashes; (3) placing punctal or lacrimal plugs; (4) diagnosing dilation and irrigation of the lacrimal system; (5) performing orthokeratology; (6) prescribing and fitting contact lenses with the purpose of altering refractive error; (7) using diagnostic instruments that use laser or ultrasound technology; and (8) other similar procedures within the scope and practice of optometry." Renumber the following bill sections accordingly. Page 2, line 26, following "practice.": Insert "(a)" Page 2, following line 29: Insert a new subsection to read: "(b) A licensee may not perform ophthalmic surgery. In this subsection, "ophthalmic surgery" means an invasive procedure where human tissue is cut, ablated, or otherwise penetrated by incision, laser, or other means to treat diseases of the human eye, alter or correct refractive error, or alter or enhance cosmetic appearance; "ophthalmic surgery" does not include the procedures described under AS 08.72.273." CHAIR KITO objected. 3:19:42 PM REPRESENTATIVE JOSEPHSON described Amendment 4 as critical. Qualifying that he is speaking from memory, he said no fewer than 20 optometrists wrote him stating that HB 103 is not about surgery, but rather about controlling their own destiny and practice. He explained Amendment 4 provides eight non-invasive items that can be done by optometrists with adequate training. These would be eight things in the law that optometrists don't expressly have now, he continued, which would seem like a good thing if he were an optometrist. REPRESENTATIVE JOSEPHSON said Amendment 4 also clarifies the opinion of optometrists. He recounted that the committee heard from a doctor of optometry in Juneau who wanted to do a large number of surgeries. There is some confusion about the motivation for the optometrists, he continued. In the original bill, optometrists wanted to do ophthalmic surgery and while that is not before the committee, it is important to ask what the motivation or intent is. He said page 2, subsection (b), comes from Washington state law and delineates the things that optometrists are not trained to do. The difference in training is enormous and that is why the delineation should be made, he stated. The [State Medical Board] says an ophthalmologist needs four years from an accredited medical school; needs to pass steps one, two, and three of general medical boards; needs a year of internship consisting of intensive care, emergency medicine, surgery, internal medicine, often in 80-100 hour work weeks, including the performance of thousands of surgical procedures; needs a three-year ophthalmic residency, which would include laser and ophthalmic surgeries under close supervision; needs one to two years of surgical fellowship consisting of intensive education; and that the total education comprises 22,000 hours of work and training. [Ophthalmologists] also need to complete an American Board of Ophthalmology exam on a 10-year renewable cycle; need to have mandatory 60 hours of class, one continuing medical education; an annual review; and license renewal by the [State Medical Board]. REPRESENTATIVE JOSEPHSON said he feels that if the state doesn't tightly regulate surgical eye care there's really no need in regulating anything with great vigor. While that may sound alarmist, he continued, he feels that this subject, in particular, needs that sort of scrutiny, and Amendment 4 would essentially mirror current Washington state practice. If the bill passes, he pointed out, the current law will say that the only type of invasive surgery an optometrist can perform is removal of a foreign body from the eye, yet the rest of the bill, CSHB 103(HSS), opens the door for much more. So, he said, the bill already creates some odd complications and he therefore asks for support of Amendment 4. 3:24:05 PM REPRESENTATIVE KNOPP offered his appreciation for Representative Josephson's concerns, but said he has always advocated for allowing the board to regulate its profession within the scope of the license, education, training, and experience - that is the key point. He said Amendment 4 would gut the intent of the bill and therefore he is against it. According to the sectional analysis, he continued, Section 5 provides that the board may not authorize any procedure beyond the scope of the licensee's education and experience. The whole intent of the bill is to allow optometrists to practice their business in the manner that they went to school and were taught and trained to do. He said he cannot see them doing anything outside of that scope; therefore, he is speaking against Amendment 4 and in support of the bill. 3:25:18 PM REPRESENTATIVE SULLIVAN-LEONARD recalled discussions within the Health & Social Services Standing Committee regarding the formation of the board and the work of the board. She said her hope is that additional information could come back to legislators in a year or two that provides more detail about the type of non-invasive procedures that optometrists do. She asked whether this is something the sponsor thinks would work better than to try to amend the bill with this concept now. REPRESENTATIVE SPOHNHOLZ answered that, if the bill passes, the legislature's role is to ensure that the law is being implemented in ways that the legislature thinks are consistent with its original intent. She added that having the board provide presentations on the evolution of the board process seems like a reasonable thing to do. Regarding the amendment as a whole, she said she agrees with Representative Knopp's characterization that it takes away the guts of the bill. The intent of the bill is to delegate the authority to manage optometrists and the practice of optometry to the [Board of Examiners in Optometry]. REPRESENTATIVE SPOHNHOLZ added that she doesn't disagree with Representative Josephson's characterization of the extensive education of ophthalmologists who are trained surgeons. Using an analogy, she noted that the distinction between dentistry and oral surgeons is fairly similar the amount of education that dentists receive is fairly similar to the amount of education that optometrists receive. Dentists oversee their own scope of practice through their board and there are not huge problems and conflicts between oral surgeons and dentists. The problem is not the distinction between optometry and ophthalmology, she continued, but rather that the legislature is overseeing it. Taking politics out of good governance in health programs, and health practice in particular, is the way get the best evidence- based efforts and management and that is why HB 103 proposes to delegate that authority as described specifically to the [Board of Examiners in Optometry]. 3:28:30 PM REPRESENTATIVE WOOL stated he is not able to list the procedures that would be performable by an optometrist and doesn't want to limit an optometrist's practice just to that. He said the bill would allow the [Board of Examiners in Optometry] to say what optometrists can and cannot do within the scope of their training and practice. REPRESENTATIVE WOOL related that over the last week he called some optometrists in his home community who hadn't called in and were not following this in committee and asked them whether they wanted to do surgery. He said their reply was absolutely not. One optometrist, he continued, told him there is a procedure that optometrists are trained to do, but it cannot be done in Alaska and will not be something optometrists will do if HB 103 passes. While he respects the argument for 20,000 hours, he said every medical doctor goes through medical school whether to be an ophthalmologist, heart surgeon, or podiatrist, and much of those 20,000 hours is studying cardiology and cancer and other things, and all those hours are not applicable exactly to the eye. Optometrists spend a lot of hours studying specifically the eye, he continued, and they do not want to do surgery out of this bill; they just want to have control of their professions. 3:30:47 PM CHAIR KITO maintained his objection to Amendment 4. A roll call vote was taken. Representative Josephson voted in favor of Amendment 4. Representatives Wool, Birch, Knopp, Sullivan-Leonard, and Kito voted against it. Therefore, Amendment 4 failed to be adopted by a vote of 1-5. 3:31:18 PM CHAIR KITO announced that HB 103, as amended, was now before the committee. 3:31:31 PM REPRESENTATIVE JOSEPHSON offered comments for the legislative record. He recalled the sponsor and her aide as both stating that the bill does not touch AS 08.72.273. The only way to read that, he said, is to derive the conclusion that the only type of invasive surgery that would be allowed if this bill became law is removal of a foreign body. This section for removal of a foreign body is not intended to permit a licensee to perform invasive surgery. He noted that Section 72 of the aforementioned statute covers the entire optometrists' code. So, he continued, it is not just about foreign bodies, it is about all types of surgeries. He stated that his previous amendment would have helped optometrists by saying that without question those eight things can be done, but now there could be a debate about that. REPRESENTATIVE JOSEPHSON added that this reminds him in some ways about his response to SB 91, which he is mentioning because he tends to be cautious about things that can hurt people and things that can hurt the natural environment. He pointed out that the concerns of the ophthalmologists are almost entirely not economic. Ophthalmologists have spent their lives working in eye care and care about the standard of practice, he continued, and while that is not to say that optometrists don't, the way the bill is written optometrists can do any manner of things. He recollected that in a March 14 hearing before a different committee, [Assistant Attorney General Harriet] Milks had stated that the attorney general would not intervene on matters of policy or comment on how the optometrists regulate themselves; if they are promulgating regulations within this bill, they can do it. In some respects, this is just being moved to a different venue, he said, and people are going to continue reading about this in the newspaper. 3:34:23 PM CHAIR KITO drew attention to Section 5 of the bill, which states, "A licensee may perform the services of optometry as defined in AS 08.72.300 only if the services are within the scope of the licensee's education, training, and experience as established by regulations adopted by the board." He said he is familiar with this type of thing because he is an engineer regulated under the [State Board of Registration for Architects, Engineers, & Land Surveyors]. As an engineer, he noted, he could theoretically design a bridge, but without any experience designing a bridge that bridge could collapse and hurt people. With his experience, he continued, he could design a roadway, breakwater, sewer, or outfall, all of which he has done and in which he has education, training, and experience. He said it is his responsibility within that license to perform those duties that he has the training for and it is up to him with the knowledge of his education to know when and how to apply that experience. Optometrists have much more education and training in their field than he does in engineering, he stated, and they should be allowed to identify what the scope of practice is that is consistent with their experience, education, and training, and he believes that this bill goes there. He said he does not believe that optometrists will be practicing outside their knowledge and experience and offered his support for the passage of HB 103. 3:36:21 PM REPRESENTATIVE WOOL moved to report CSHB 103(HSS), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 103(L&C) was reported from the House Labor and Commerce Standing Committee.