Legislature(2017 - 2018)BARNES 124
03/29/2017 03:15 PM House LABOR & COMMERCE
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HB 103-OPTOMETRY & OPTOMETRISTS 4:34:22 PM CHAIR KITO announced that the final order of business would be HOUSE BILL NO. 103 "An Act relating to the practice of optometry." 4:35:03 PM REPRESENTATIVE IVY SPOHNHOLZ provided a brief reintroduction of HB 103. She said the bill would give authority to the Board of Optometry to regulate the practice of optometrists. It would ensure that the Board of Optometrists would have the opportunity to update the current and continuing education standards and scope of practice based on best available evidence. The bill would not allow optometrists to perform outside of their scope of practice, for example as in performing surgeries. It would allow the board to utilize the regulatory process to manage itself, just as doctors, chiropractors, nurses, and dentists are regulated. REPRESENTATIVE SPOHNHOLZ pointed out that current statute, AS 08.72.273, does not allow optometrists to provide invasive surgeries. She further noted that licensees must submit the necessary credentials, including the proper experience, education, and training, to perform procedures that require approval from the board. Lastly, she pointed out that Assistant Attorney General Harriet Milks had testified that a robust process for adopting new regulations already exists and includes board meetings that are open to the public, a 30-day public comment period, a Department of Law review period, and a review from the governor's office. She said that this final point gets at Representative Josephson's question about "where the buck stops"; it stops with the governor when it relates to the adoption of any new regulations. REPRESENTATIVE SPOHNHOLZ acknowledged that it was the legislature that developed the statute in question. She stated that it was her hope that this bill will remove the legislature from the business of managing optometrists, so they can focus on other issues they need to resolve, rather than the "eye wars." She said that the intent of HB 103 is to delegate the "eye wars" to the Board of Optometry, which is where it belongs. She pointed out further that the legislature is not a group of medical professionals, and yet they have been discussing medical procedures. Such discussions should be held at the Board of Optometry, just as dental and chiropractic issues are discussed at their respective boards. 4:39:12 PM REPRESENTATIVE WOOL asked if there was perhaps an analogy to this issue in the world of dentists and oral surgeons; such that there might be one board for dentists and one for oral surgeons. 4:41:28 PM BERNICE NESBITT, Staff, Representative Ivy Spohnholz, Alaska State Legislature, on behalf of Representative Spohnholz, prime sponsor of HB 103, said that she thought Representative Wool was correct: because oral surgeons are medical doctors, they would be regulated by a medical board, whereas dentists, she believed, would be regulated by a board of dentistry. REPRESENTATIVE WOOL said that if that is the case, then the situation with optometrists and ophthalmologists is very similar. He said that he would assume that a dentist would not have to come and ask the legislature if say he/she wanted to pull a tooth. 4:42:22 PM REPRESENTATIVE SPOHNHOLZ said that Representative Wool provided a good analogy; if dentists wanted to introduce a regulation that would expand their scope, then the process would occur at a board of dentistry. She also said that in that process, oral surgeons, like any member of the public, would have the opportunity to provide testimony and feedback. Similarly, oral surgeons could attend any board of dentistry meetings to stay apprised of new developments. 4:43:10 PM CHAIR KITO stated that they would now return to public testimony. 4:43:55 PM RACHEL REINHARDT, MD, stated that she was testifying on behalf of The American Academy of Ophthalmologists and its world-wide membership of 32,000 eye physicians and surgeons. She said that she was a board-certified ophthalmologist from Washington state. She stated, "We are asking for your opposition to HB 103." She stated that the bill was "without a shred of doubt" a "surgery bill" that would make two very concerning changes to existing law: removing from existing law the surgery restrictions that currently exist; and inserting a new definition of the word optometry in Section 6 that includes the words "treatment" and "procedures". She said the addition of the word "treatment" would leave "absolutely no limitations" on the type of treatment; therefore, any surgeries on the eye would be allowed under this new law if the Board of Optometry deemed them within its scope. She said the new definition would allow the Board of Optometry to redefine itself into a surgical field. She also said that if proponents of the bill continue to insist that it is not a surgery bill, then she thinks the bill either cannot pass or "it needs to be put in writing," because without specific language Alaska would be the first state in the country to adopt such broad unprecedented legislation. DR. REINHARDT said that a number of years ago a similar bill proposed in Washington state added a definition of surgery that cleared up the issue, specifically prohibiting an optometrist from performing surgery. She stated that there are only three states in the United States that have allowed bills similar [to HB 103] to pass. In Oklahoma, language in a bill did not specifically allow surgery, including laser surgery, but it was never specifically restricted. As such, the Board of Optometry in Oklahoma interpreted the law to redefine its scope to include surgery. A study now shows that optometrists in Oklahoma are causing people harm and increasing healthcare costs. DR. REINHARDT stated that [the American Academy of Ophthalmologists] respectfully but strongly disagrees that [the board addressed under HB 103] is similar to other professional boards, such as those for nursing, dentistry, and even engineers. She said that unlike nursing, dentistry, and even pharmacy, optometry education is not medical education, and it's not surgical education, yet this bill would allow the Board of Optometry, which is made up of nonmedical nonsurgical doctors, to regulate a profession that is nonmedical and nonsurgical. She said, "This says everything." The statutes and regulations for the boards of pharmacy, nursing, dentistry, and even engineering comprise 45-65 pages of Alaska Statutes, yet the optometry statutes and regulations comprise 12 pages. DR. REINHARDT said two days ago, an optometrist was heard stating that insurance companies understand risk. She said that while she agrees with that 100 percent, committee members should bear in mind that the Ophthalmic Mutual Insurance Company (OMIC), the largest insurance company for ophthalmologists in the country, has essentially come out with a policy stating it will refuse to insure any ophthalmologist that hires an optometrist to perform surgery, including laser surgery. She said that this is the third consecutive year this surgery bill has been heard, the first time being under Senate Bill 55, during the Twenty-Ninth Alaska State Legislature. During that time, she noted, the legislature heard the concerns of scores of MDs, who were not all ophthalmologists. She implored the committee to listen to the experts in eye care and "not to leave the safety of your constituents up to a public comment period or the assistant attorney general after the fact." Those are not people that are trained medically. If MDs are having a difficult time voicing their concerns now, she proffered, imagine how futile their efforts will be to protect their patients after HB 103 is passed. She stated there are four states in the country that don't even allow optometrists to prescribe oral medication, yet here we are debating (indisc.) surgery in Alaska. She said HB 103 would be unprecedented, and it would change the scope for the practice of optometry. She said that she respectfully asks the committee to vote no; however, she stated that if the proposed legislation must pass, then at the very least the definition of surgery should be added, as it was in other states like Washington, to ensure public safety. She said that the committee member's constituents are counting on them. DR. REINHARDT concluded by mentioning amendment language regarding the practice and procedures of optometry complying with acceptable standards, and she said such language would not resolve the core concern regarding board authority. 4:49:19 PM REPRESENTATIVE JOSEPHSON asked Dr. Reinhardt whether she had an opinion on what he described as the apparent conflict between the two following conditions: passage of a bill with language stating an optometrist cannot perform any invasive surgery other than removal of a foreign body; and the elimination of existing language that says [optometrists] can do assorted things but not surgery. 4:50:32 PM MS. REINHARDT said the concern is that when there is conflicting language in a bill, it is not abnormal for laws to be interpreted in different ways. The risk is that not defining the term "invasive surgery" creates loopholes for performing surgeries. She said she takes issue with categorizing surgeries as "invasive" versus "noninvasive," because "surgery is surgery." She explained that surgery involves cutting, ablating, or altering tissue somehow. She also said that it's not hard to define surgery, adding that the American Medical Association has had a definition for decades. She concluded by saying that the problem lies in not defining the word surgery [in the proposed bill]. 4:51:37 PM DAVID S. ZUMBRO, MD, Ophthalmologist, introduced himself as an eye physician, surgeon, and retina specialist in Anchorage, Alaska. He said that he is also a partner with Alaska Retina Consultants and a retired colonel from the U.S. Army, and he has had the opportunity to participate in a training program for ophthalmologists for five years in San Antonio, Texas. He expressed his hope that the committee would consider rejecting or modifying HB 103. He said that while the bill may seem "innocent and safe," the vagueness of the language would allow non-physicians and non-surgeons to determine the medical and surgical procedures they can perform on the eye, which is a real patient safety issue. He proposed the question of why he should still be worried about procedures when it has been said the bill is not about surgery and optometrists will not perform surgeries they are not trained to perform. In response to his question, he stated that an optometrist in Alaska told him that they are planning to help with eye injections. He said that looking around the country we see multiple states which have similar and current legislation, some of which are worded more directly. All of these are associated with expanding the scope of practice for optometry into surgery. DR. ZUMBRO said that the reason he is worried about patient safety is because the "optometry curriculum" does not provide the training for optometrists to perform surgery, gives injections, and operate lasers, let alone regulate such activity. He stated that with any procedure there is a difference between knowing what to do and how to do it safely, and the hardest thing for a surgeon to learn is when to step back and not do something. As in any profession, where a person is young and eager to serve, inexperience sometimes interferes with proper judgement. He said that all one must do is look at the ophthalmology curriculum to understand the "gold standard" for training eye physicians and surgeons. He asked for the evidence optometry has produced to show their curriculum is equivalent to the gold standard. DR. ZUMBRO stated that he has no problem with the Board of Optometry regulating the optometry profession. Notwithstanding that, he stated that while it has been said that the Board of Optometry will hold public testimony for any procedure, that is what is being done now, and he opined that if eye surgery is being discussed, then it would make sense that the current board-certified eye surgeons should participate in the discussion. Dr. Zumbro questioned how it could be logical for non-physicians and non-surgeons to regulate eye surgery. He stated that the antidote to this argument is simple: if the optometrists wish to practice medicine and surgery, then they should be regulated by the medical board, as it is with podiatry. If this is unpalatable, then Alaska needs an eye surgery amendment just like Washington, Arizona, and Florida. He said HB 103 is not a simple housekeeping bill, as it would redefine optometry into a surgical profession, and this makes for legitimate patient safety concerns. 4:54:34 PM CARL ELI ROSEN, MD, Ophthalmologist, specified that he is an ocular plastic surgeon and neuro-ophthalmologist. He said that he interfaces with neurology and neurosurgery with regard to patient diagnosis and treatment. He said that he "takes care of" bumps and cysts on eyelids and has performed over 15,000 surgeries on eyelids for folks with eyelid and cornea abnormalities, cancers, reconstructions, trauma, et cetera. He said he has been in practice for 23 years with Ophthalmic Associates in Anchorage and has taken emergency calls voluntarily. He said he is a past president with the Alaska State Medical Association. DR. ROSEN indicated that he had been confused by what he heard at the committee's previous hearing on HB 103, on Monday, March 27, 2017. He pointed out that at that meeting, Dr. Dobson had said that the bill was not about surgery and that optometrists have no business performing surgery and do not want to perform surgery. He said the prime sponsor of HB 103 and her aide had stated that the proposed bill is not about surgery, and all surgery language was removed from the bill. He went on to point out that during that meeting, Dr. Matheson had testified that she had been doing surgical procedures for 30 years, removing eyelashes and foreign bodies from the cornea. He reminded the committee that Dr. Christianson said that he drains sties. Further, he had heard that optometry removes fish hooks from eyes. He said that he also heard that as times change, scope of practice must be modernized by the Board of Optometry; should a surgical procedure be deemed within the scope of practice by the board, it won't want to come back to the legislature. He also recollected that the attorney general had stated that public testimony would help decide if surgery was appropriate for an optometrist. DR. ROSEN asked, "Doesn't that bother any of you? Not only would there be no one with actual surgical experience on this board, but you're going to double down and ask the public for help?" He answered his own question by emphasizing that an expert - someone with actual experience - should be consulted, because "the stakes are far too high." He said that while it seems so innocent for someone to say that they'll remove a foreign body or drain/inject a sty or a cyst, there are serious situations that might arise under those circumstances, including: when a foreign body is full thickness and results in a leaking, open globe; when a drained sty results in lid retraction, and the patient can't close the eye; or when infection and necrosis of the eyelid results, requiring a full- thickness skin graft. DR. ROSEN stated that (indisc.) boards and nurse practitioner boards police themselves because of the procedures learned in graduate school. He said that optometry students do not perform surgery, operate lasers, or administer injections. He questioned why [someone without sufficient training] would be allowed to put a needle into an eye with macular degeneration, for example. He warned that if something is said enough, it becomes reality; therefore, he is asking folks to wake up and think about what is being said here [in this process]. DR. ROSEN said an article, dated July 2016, in the Journal of American Medical Association (JAMA) states that health policy making should be cautious with approving laser privileges for optometrists. He said that optometrists do not take hospital emergency calls or (indisc. -- overlapping voices). He said that optometrists cannot transfer or admit patients to the hospital as bylaws do not allow this. He remarked that people like to plan for the unknown by buying fire and earthquake insurance, even though it is unlikely they will ever use it. He then asked why anyone would be willing to risk patients' safety based on the words "trust us." He emphasized the need to set boundaries and consequences. He said, "Let's fix this all with a definition of surgery and we can all go home." Dr. Rosen concluded, "At some point in your lives you will need an ophthalmologist. Do you want to continue to alienate and marginalize the Alaskan ophthalmology community? As it stands it is difficult enough to recruit new ophthalmologists to Alaska. This bill only makes it more so." 4:58:28 PM ERIC COULTER, MD, Ophthalmologist; Medical Director, Alaska Eye Surgery and Laser Center, stated that the last testimony in favor of HB 103 expressed nebulous reasons why [optometrists] require HB 103, except "to modernize and be more able to manage themselves." He mentioned the testimony of Dr. Rosen and the questions of why ophthalmologists should get into a conflict over a nonsurgical issue. Dr. Coulter stated, "We agree that they are good and great optometrists, but we disagree that that group is ready, now or in the future, to be great surgeons, and despite what they say, this is a surgical bill. ... Unless self-governance is dependent upon expanded scope of practice and surgical privileges, this really doesn't have anything to do with self-governance." DR. COULTER said there is ample evidence that HB 103 is "a surgical-oriented bill." He noted that the original bill version would have, under AS 08.72.050, required the Board [of Optometry] to adopt regulations "describing the scope of practice for a licensee to perform ophthalmic surgery and noninvasive procedures"; however, that language was subsequently removed from [CSHB 103(HSS), the version that passed out of the previous committee of referral], as a result the legislature receiving "overwhelming concern about optometrists performing surgery." He said this is a moot point, because the current version would define "optometry" under AS 08.72.300 as "the examination, evaluation, diagnosis, treatment, or performance of preventive procedures related to diseases, disorders, or conditions of the human eyes or adjacent and associated structures, consistent with this chapter and regulations adopted by the board". He said this language removes restrictions related to the use of lasers or performing surgery. He said he does not see how this change in the definition of optometry is going to enhance the ability to self-regulate. 5:02:20 PM DAVID KARPIK, OD, introduced himself as a residency-trained and board-certified Doctor of Optometry testifying in full support of HB 103. He said that he and his wife are partners in a four- doctor, two-location practice that provides the majority of eye care on the Kenai Peninsula. He said that he is also the medical director for the Vision Source Network in Alaska, representing 18 private optometry practice locations scattered throughout the state, many of which are remote and rural. He said that some of the opposing testimony has indicated that all optometrists' training occurs within the statutorily required continuing education but neglects to mention the thousands of hours of training on the human body for the diagnosis and treatment of eye disease that optometrists receive during their 4 years at optometry school, post graduate residency, and additional maintenance requirements for board certification, which are well beyond the statutory requirements. DR. KARPIK said that Doctors of Optometry have a long history of providing quality, conservative care and practicing within the limits of what they are highly trained to do. Non- ophthalmologist medical doctors, osteopaths, and nurse practitioners are not statutorily restricted from performing any eye treatment or surgery. The average medical student receives about two weeks in an ophthalmology rotation, yet they safely perform eye treatment within their training and comfort level and refer the balance often to optometrists in their small communities, like himself. DR. KARPIK said that a U.S. News & World Report study published this month ranked Alaska last in access to health care. Today [the legislature] has an opportunity to change that alarming statistic by creating a statute that will be durable and allow incorporation of new technology as it is developed, provided that training is certified. He said all healthcare providers need to practice to the extent of their training, which he added is provided at great cost to tax payers whose tax dollars support optometry schools at state universities, hospitals, and VA hospitals. DR. KARPIK said that he supports the proposed bill because it's simple and would replace the rigid and aging current optometry law with one that would match the laws for other prescribing professions like dentistry and advanced practice nursing, which are also regulated by state boards. He said that as regulation, technology, and research continue to change best practices, regulation by an optometry board appointed by the governor and confirmed by the legislature ensures protection of the public with timely updates in practice, and that allows for optimum access to eye care for Alaskans. 5:05:15 PM ALFRED DERAMUS, MD, Ophthalmologist, stated, "It is well understood by both sides that the issue of surgery and the definition of surgery is the lynchpin for the continued need for us to go back to the legislature and be very specific about the definition." He said that both sides have tried to talk about performing and not performing surgery, but that this does not ring true to him. He said that the definition of surgery is the incision and the alteration of tissue. He opined that optometrists are doing a very good job in optometry, and the surgeons - the ophthalmologists - are doing a very good job at what they do. He emphasized the need to provide a clear definition of surgery in statute, because "... just like water goes through small cracks, we are very concerned that surgery will be performed by the optometrists if there's a small crack." 5:07:21 PM REPRESENTATIVE WOOL recollected that the definition of surgery - possibly with a laser - that he had heard from other ophthalmologists that testified is to cut, ablate, or alter tissue. He asked Dr. Deramus if this is correct. DR. DERAMUS answered that the definition was "getting close, yes." He added that if laser energy is applied to tissue, then there would be no question that tissue would be altered. REPRESENTATIVE WOOL asked if that would qualify as surgery. DR. DERAMUS responded that it would qualify as surgery, because laser trabeculoplasty affects the tissue in a fashion that causes contraction and movement of the microstructures, which increases outflow; therefore, that is surgery. REPRESENTATIVE WOOL asked if having a tattoo removed with a laser would fall under the same definition. DR. DERAMUS said, "Yes, I'm sorry, you walked right into that one, it sure does." He offered further details. 5:09:28 PM ELIZABETH MORGAN, MD, Ophthalmologist, introduced herself as a board-certified ophthalmologist who also has a fellowship in glaucoma. She said that she has heard repeated testimony regarding how "self-legislation" by optometrists could "easily" result in increased scope of care for optometrists. She said that this precedent has been set in Oklahoma. She cited information from JAMA, dated October 2016, which looks at the difference in outcomes in the use of lasers for glaucoma performed by optometrists versus ophthalmologists. She said it was a very powerful study, as there were 13,084 eyes included in it. She said the study discovered there were more than two times the number of repeat laser surgeries performed by optometrists. She said the potential explanation for this is ominous, because it indicates that either optometrists are not performing laser surgery correctly or they are repeating the laser surgeries as an effort to increase reimbursement, which is an issue with cost containment in healthcare today. Dr. Morgan acknowledged that she was repeating a lot of what had already been said, but as a glaucoma specialist wanted to bring these details to light. She said she would like to work together with optometrists and ophthalmologist but thinks it is very important to "come up with a definition of surgery so that we may continue to do that for the people of Alaska." 5:11:33 PM JEFF GONNASON, OD, Legislative Chair, Alaska Optometric Association, stated that he has served under the state optometry board under two different governors and has been testifying on this issue for over 40 years in Alaska. He said that every one of the ophthalmologists and medical organizations that have testified on this issue for the past 40 years have the same two demeaning arguments: optometrists are a danger to the public, and optometrists' education is not adequate. He stated that both of these statements have been proven patently untrue. DR. GONNASON, regarding the claim that optometrists are a danger to the public, stated that public safety has never been an issue in over 40 years of expanding scope of practice. He said he is not aware of a single case before the board involving harm from any optometrist's treatment or drug prescription, and this is a wonderful record for Alaska. He pointed out that Dr. Lindstrom commented on the current statute's 4-day supply limit on narcotics, as described in Sections 4 and 5 of HB 103, and he stated that this restriction would be kept in regulation by the board. He said that "optometry" strongly agrees with the new push to limit narcotics by all providers, and optometry in Alaska has a 10-year history of prescribing narcotics without issue; therefore, this part of the bill is not an issue. He said that optometrists began using eyedrop drugs in the U.S. in 1972, but it was 16 more years before Alaska became the fiftieth and last legislature to approve this practice. He added that this was a result of the same arguments of danger and poor training. He said that he would not be able to give eyedrops to a child in Yakutat that had pinkeye, even though the health aide with only a few weeks of training could do this. He said that Alaskans suffer and pay more when educated providers cannot utilize their skills. DR. GONNASON, regarding inadequate education, said that the education model is identical to dentistry with 8-10 years of university study. He said that optometrists are not like technicians; they are real doctors receiving a bachelor's degree followed by a four-year doctoral program, which first includes two years of sciences, then two years of clinical experience, which is followed by the requirement of having to pass state and national boards. He added that many optometrists take on additional residencies. He said that optometry and dentistry schools are similar to medical schools during the first two years of sciences, stating that optometry and medical students often train together and have the same professors. He said that the second two years of clinical are different: Because medical students must cover the entire range of the body, more clinical time is spent on the priorities of heart disease, cancer, and stroke; in comparison, optometry students cover systemic diseases, diabetes, hypertension, and brain tumors to make the appropriate referrals. DR. GONNASON said that his final comment pertains to the scare tactic regarding surgery. He said optometrists do very little of the work of ophthalmologists and that optometrists perform none of the advanced specialty surgeries of the subspecialists, who have testified. He said that optometrists perform only the minor procedures for which they are fully competent. He went on to say that the reason surgery cannot be well defined in statute is because, technically, anything touching human tissue is surgery; including clipping fingernails, tattooing of eyelids, and piercing metal through parts of the body. He said that if the legislature tries to define surgery in statute, it will end up with the problem that exists in other states, where they have long lists of everything that can and cannot be performed. He stated that having to return to the legislature is the main problem. He indicated there is always opposition from "organized medicine." For example, there was opposition to Alaska's advanced practice nurses, whom Dr. Gonnason opined provide a "magnificent" service to Alaskans. He asked the committee to please note the support letters from Southcentral Foundation, other native health organizations, and Dr. Castillo's letter, which "aren't, you know, on either side of this." He said optometrists in Alaska provide the majority of eye care at lower cost; therefore, he would thank the committee for [supporting] better eyecare access for Alaskans. 5:15:50 PM CHAIR KITO, after ascertaining that there was no one else who wished to testify, closed public testimony on HB 103. CHAIR KITO announced that HB 103 was held over.