Legislature(2017 - 2018)SENATE FINANCE 532
03/14/2017 09:00 AM Senate FINANCE
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SENATE BILL NO. 36 "An Act relating to the practice of optometry." 9:15:55 AM Co-Chair Hoffman MOVED to ADOPT the committee substitute for SB 36, Work Draft 30-LS0328\J (Bruce, 2/13/17). Co-Chair MacKinnon OBJECTED for discussion. 9:16:25 AM SENATOR CATHY GIESSEL, SPONSOR, discussed the committee substitute and the root version of the bill. She stated that the regulations pertaining to medicine, dentistry, and nursing were regularly updated to comply with new technology and education. She noted that the bill had been offered multiple times in the past. She read from the sponsor statement: Senate Bill 36 modernizes and updates the Alaska Optometry Statute, as many sections are over 50 years old. It authorizes the optometry board to regulate its practice as do the other prescribing health professions such as dentistry, medicine and nursing. Under SB 36 the board will continue to adopt regulations, updating them to current education, certification and practice. Continuing education, required by current statute, will be determined by the board as with other professions. This change allows the board flexibility to control CE requirements and is recommended by the Dept. of Commerce, Community and Economic Development. The current regulations require more CE hours than the statute subsection deleted by this bill. SB 36 authorizes the optometry board to continue to regulate prescription pharmaceutical agents, including standards and limitations on practice determined by the board. SB 36 ensures that the optometry board, with the oversight of the Department of Law, may not authorize any procedure beyond the scope of the licensee's education, training, and experience. The optometry definition in this bill is updated to reflect current education, certification and modern- day practice. This allows for future new and improved diagnostic and therapeutic procedures, while not having to return to the legislature for every new technological advance. Senator Giessel reported that the bill had been offered several times in the past and had faced significant opposition. She stressed that the malpractice insurance for optometrists was low. 9:21:16 AM JANE CONWAY, STAFF, SENATOR CATHY GIESSEL, provided an explanation of changes (copy on file): The language in the committee substitute gives the Board of Optometry authority to regulate its practice, reflecting the same regulatory authority given to the other prescribing practices such as medicine, nursing and dentistry. In this new version J we have removed the reference to ophthalmic surgery from the bill (version A, page 1, lines 12-13, and also on page 2, lines 21-23). It is unnecessary for this language to be placed in statute; optometric procedures, within optometry's scope of practice, can be regulated by the board, all requiring robust public comment from stakeholders and rigorous Department of Law oversight. This is the current process for the Medical Board. The Board of Nursing. The Board of Dentistry. And so should it be for the Board of Optometry. The new CS reflects that intent in version J. 9:22:49 AM Co-Chair MacKinnon REMOVED her OBJECTION. There being NO further OBJECTION, the proposed committee substitute was adopted. 9:23:04 AM Ms. Conway discussed the Sectional Analysis (copy on file): Section 1 AS.08.72.050 (4)(6) updates very old statutes to indicate that regulations shall be adopted to govern the current prescription and use of pharmaceutical agents; and develop uniform standards for the practice of optometry. Section 2 AS.08.72.060 (c)(4) the board shall publish advisory opinions regarding standards for the practice of optometry. Section 3 AS 08.72.181(d) moves the continuing education (CE) requirements back into regulation, as desired by the Department of Commerce, Community and Economic Development. Continuing education is still required by current statute, but the hours and subjects will be determined by the board. Section 4 AS 08.72.272(a) clarifies the current statute for the board to regulate pharmaceutical agent prescription including standards and limitations on practice determined by the board. Section 5 AS 08.72.278 Limitation on practice adds a new section that sets limitations on services, ensuring that the board may not authorize any procedure beyond the scope of the licensee's education and experience. Section 6 AS 08.72.300(3) updates the optometry definition to reflect current practice. Section 7 Effective date for Section 2. This is because (3) of Section 2 was added to statute in 2016 via Senate Bill 74, the Medicaid Reform bill, and it had the effective date of July 2017, so (4) is written to comply with that date as well. (per Legislative Drafting) 9:25:18 AM Co-Chair MacKinnon queried any additional comments. Senator Giessel replied in the negative. 9:25:33 AM Senator Olson wondered how many other states had similar legislation to SB 36. Senator Giessel corrected the assumption that the bill would expand the scope of practice for optometrists. She deferred the question to the current chair of the Alaska State Board of Optometry. 9:26:18 AM Senator Olson clarified that the bill would allow optometrists the authority to prescribe additional medications, as well as perform additional procedures. Senator Giessel replied that optometrists had the authority to write prescriptions for a "very long time." She said that the bill offered no expansion of the procedures that optometrists could perform. 9:27:34 AM Senator Olson wondered how many other states had visited the issue of the limitations of optometry practices. Senator Giessel deferred the question to the board. 9:28:30 AM DOCTOR PAUL BARNEY, CHAIR, BOARD OF OPTOMETRY, spoke in support of the legislation. He read from a prepared statement (copy on file).: My name is Paul Barney, I am an optometrist and the current chair of the Alaska Board of Examiners in Optometry. I am also a past president of the Alaska Optometric Association. I'm here today in support SB 36. I have practiced in Anchorage for 17 years where I am the Center Director of Pacific Cataract and Laser Institute in Anchorage. Pacific Cataract and Laser Institute (also known as PCLI) is a referral center limited to medical and surgical eye care. I practice with an Ophthalmic Surgeon and a Certified Registered Nurse Anesthetist. PCLI's approach to eye care is to work collaboratively as a team and optimize each practitioner's education and skills. Together we are able to provide quality, affordable, surgical eye care to Alaskans. We in fact are the largest provider of cataract care in the state of Alaska. I support SB 36 because it will allow the Board of Optometry to regulate the details of the practice of Optometry. This is already the case with Advanced Practice Nurses, Dentists, and Medical Doctors. This legislation will not set a new precedence in health care, since this is already the way other health care providers are regulated in the state of Alaska. SB 36 will give Optometrists a better opportunity to practice to the highest level of their education by allowing the Board of Optometry to write regulations that are commensurate with educational advances that occur with new technology and medications. The current Optometry statute was written over 40 years ago and requires Optometry to pursue a statute change whenever there are advances in education and technology. As you know, statute changes are costly and time consuming. Like all other professional regulatory boards, the Board of Optometry cannot promulgate regulations for practices or procedures that are beyond the education of Optometrists. The Board of Optometry is overseen by the AK Department of Law, just like other health care boards. And the AK Department of Law would ensure that the Board of Optometry's regulations were within the scope of Optometric education. Other safeguards are our medical legal system and insurance system. Any healthcare provider who provides care outside of their education is subject to disciplinary action by their respective board, as well as serious medical legal ramifications. Additionally, insurance carriers do not pay providers for care they provide outside of their scope of education. With that said, there is no incentive for any healthcare provider to provide care outside of their education, and, there are very serious consequences, both financially and to their licensure, to practitioners who do provide care outside of their education. As chair of the Alaska Board of Optometry, I can assure you that the primary concern of the Board is the safety of the public. In the six years that I have served on the Board we have had no complaints from the public that were serious enough to even consider disciplinary action. Optometrists are conservative and cautious practitioners and the passage of SB 36 would not change their conservative nature. SB 36 would be good for the state of Alaska. The bill puts the regulatory details regarding the practice of Optometry in the authority of the Alaska Board of Optometry. These changes are important to allow the profession and practice of Optometry to incorporate new technologies and advances in eye care as they occur. Optometry provides over 70% of the eye care in the U.S. In some rural areas, especially in Alaska, Optometrists are the only eye care provider in the community. The citizens of Alaska deserve to be served by a profession that is allowed to stay current with advances in education and new technologies in eye care. I respectfully urge you to support SB 36. 9:32:41 AM Senator Olson wondered whether Dr. Barney had practiced in rural Alaska. Dr. Barney replied that he had not practiced in rural or bush Alaska. He relayed that he had worked with patients from rural Alaska that had been referred to him, and he was familiar with the eye health needs of rural Alaska. 9:33:31 AM Senator Olson wondered how the legislations would affect the optometrists working in rural Alaska. Dr. Barney replied that the bill would allow the board to write regulations that were more commensurate with education. He said that the current practice of optometry in rural Alaska was a bit below the education that was provided in most schools of optometry. The bill would allow the board to consider regulations that would expand the scope of practice. He relayed that the bill would allow optometrists to provide more expansive care to rural Alaskans. 9:34:42 AM Senator Olson asked how many other states had legislation similar to SB 36. Dr. Barney replied that Kentucky, Oklahoma, and Louisiana had passed legislation allowing for greater scope of practice for optometrists. The bill would allow for the board to make the scope of practice in Alaska equal to those states. 9:35:25 AM Senator Olson asked how many complaints the board received within the past 5 years concerning scope of practice. Dr. Barney responded that he had received no complaints in the past 6 years that he had served on the board. 9:35:48 AM Senator Olson surmised that the board had no taken disciplinary action on any optometrists in the state. Dr. Barney replied in the affirmative. 9:36:06 AM Senator Micciche wondered why the state had not allowed the Board of Optometry to regulate itself. Dr. Barney replied that he did not know why the state had not allowed the Board of Optometry to regulate itself. 9:36:39 AM Co-Chair Hoffman queried the position of the Alaska Native Health Corporation on the bill. Dr. Barney understood that the Southcentral Foundation was in support of the legislation. He cited a support letter (copy on file). 9:37:07 AM Co-Chair Hoffman rebuffed that he was more interested in the opinion of corporations providing services in rural Alaska. Dr. Barney replied that he was unaware of a position either for or against from corporations serving rural Alaskans. 9:37:45 AM Co-Chair Hoffman felt that the position of corporations providing health care to rural Alaskans should be entered into the record. 9:37:54 AM Senator Olson announced that it was normally the position of practicing physician's in rural areas, that optometrists had more training in the field of eye health than medical doctors and were usually in favor of legislation like SB 36. 9:39:20 AM Co-Chair MacKinnon said that she would reach out to native health organizations for an opinion. 9:39:24 AM Senator von Imhof thought that both sides of the issue brought up valid points but wondered why the issue was so contentious. She spoke of other states that had defined ophthalmic surgery in statute. She felt that a compromise could be reached. 9:42:27 AM DOCTOR JEFF GONNASON, PRESIDENT, ALASKA OPTOMETRIC ASSOCIATION, testified in support of the bill. He read from a prepared statement (copy on file): My name is Jeff Gonnason, OD. I was born and raised in Ketchikan & Craig and I was the first Alaska Native optometrist. I have served on the State Optometry Board under two different governors, and as Past President of the Alaska Optometric Association. I have volunteered at the ANMC and SCF. I practice in Anchorage and performed Bush clinics in my younger days. A brief history for those new to this issue: Optometry's doctor's degree was brought up to the same level of education as medicine and dentistry over 45 years ago - 4 years of undergraduate Bachelors degree followed by a 4 year graduate professional doctoral program, plus often 1-2 year residencies for advanced education. This exactly follows the dental school model. Looking at 8-10 years of university education. By the way, currently 2/3 of optometry students are women. The 4 learned professions of medicine, dentistry, optometry, and advanced practice nurses - are all independent, all have their own regulatory boards, and are all currently authorized by Alaska law to prescribe drugs including controlled narcotics with DEA numbers. Alaska optometrists have prescribed drugs for the past 25 years with no issues of harm or abuse. Optometrists are defined as PHYSICIANS by the federal Center for Medicare, and are held to the same standard of care as other medical professions as we treat Medicare & 1 Medicaid patients, and are on preferred provider insurance panels. The optometry malpractice insurance fee is extremely low - about $485 per year for $4M in coverage. Approximately 150 optometrists practice all over the state and provide the vast majority of eye care in Alaska, servicing over 80 remote locations. Local optometrists are called upon at rural hospitals and clinics for their expertise. We are the primary care physicians for eyecare in Alaska. Treatment and travel costs from rural areas greatly increases when routine eye care is instead provided by urban specialists. Alaska needs the best new doctors of optometry, and antiquated state statutes are a barrier to attracting the best and brightest to our state. To be absolutely clear, SB 36 does NOT authorize any optometrist to do ANYTHING. It only updates antiquated statutes and gives the State Optometry Board authority to regulate the profession with their sworn duty to protect the public, the same as Alaska medical physicians, dentists and advanced practice nurses - so that optometry does not have to return for legislation for every new advance in education or technology. The legislature creates professional boards to regulate the specific details of practice, that allows for flexibility with advances in health care delivery. Licensing includes 2 professional judgment of when to refer patients for specialty care. This bill has nothing to do with comparing the advanced subspecialty ophthalmology training with optometry. The clinical education of an optometrist does not have to parallel that of an ophthalmologist any more than the education of a family physician needs to parallel a heart surgeon or a neurosurgeon. The family doctor has no restrictions, but does not perform heart or brain surgery, as they refer to those specialties. Optometry does the same. The state optometry board would NEVER authorize any optometrist to perform any treatment they were not educated and qualified to do. Risk of harm to the public has NEVER been an issue, and all these claims of harm are patently untrue. Of the 4 main prescribing professions, only optometry still contains outdated statutes. The Alaska Optometry Board deserves the same level of respect as these other professions. I respectfully ask for your support of SB 36 to allow the optometry board to better regulate for the future, to benefit Alaska citizens by providing better access to eye care and lower costs. Dr. Gonnason offered a brief history as to the contention between optometry and ophthalmology. He lamented that the fight had been brewing over the past 40 years. He felt that the issue was one of professional judgement. He contended that no optometrist would perform surgery on the eye that was outside their scope of training. Senator Olson spoke to the concern voiced by an ophthalmologist regarding the overly expansive scope allowed to optometrists. Dr. Gonnason responded that the legislation would not expand the scope of practice but would allow the board the authority to authorize new procedures, taught in nationally accredited optometry schools. He said that several states offered more authority in statute, some offered less. He believed that doctors should be able to practice to the full extent of their training. 9:51:39 AM Senator Olson wondered how many optometrists had DEA numbers. Dr. Barney believed that the number was more than 50 percent of the 150 optometrists practicing in Alaska. 9:52:01 AM Senator Olson wondered about the additional yearly training hours required for optometrists. Dr. Barney responded that 36 hours were required every two years. 9:52:15 AM Senator Olson asked how those numbers compared to the requirements for ophthalmologists. Dr. Barney replied that he did not know. 9:52:24 AM Co-Chair MacKinnon shared that representatives from the ophthalmologist community would testify later in the meeting. 9:52:28 AM Senator Micciche wondered what would occur if the Alaska Board of Dentistry decided to pas regulation that said that dentists could perform reconstructive surgery on the jaw. Dr. Barney replied that the board would write regulations, which would be given to the Department of Law for meticulous scrutiny. He said that regulation would require appropriate educational requirements. He added that if the board of optometry wrote regulations for practices or procedures that did not have an educational basis, the regulations would never be approved. 9:53:41 AM Senator Micciche understood that if the board decided to give ophthalmologists broader reach in terms of practices that could be performed, the educational criteria would be very clear. Dr. Barney replied that the board would have to provide proof, through the Department of Law, that education had been provided through credited schools of optometry. 9:55:49 AM DOCTOR DAVID ZUMBRO, OPHTHALMOLOGIST, ANCHORAGE (via teleconference), testified against the legislation: I am concerned that Senate Bill 36 is moving forward. This bill is special interest legislation purposefully crafted in ambiguity that potentially allows optometry professionals to regulate and perform eye surgery for which they have received no training. Where is the public outcry for the necessity of this bill? How does the current statute prohibit Optometry Professionals from regulating their profession? This bill incorrectly redefines optometry as a surgical profession. It has been stated that my profession, ophthalmology, opposes optometric scope of practice expansion because of fear of competition. This is wholly incorrect. It is absolutely about patient safety. Currently, it takes 8 years after college and 20,000 hours of supervised training to create a safe and competent eye physician and surgeon. There is a rigorous board certification process involving both written and oral examinations that must be renewed every 10 years. Surgical privileges at hospitals and surgicenters are limited to 2 years and renewed by a committee of other physicians and surgeons only after proof of currency and competency. As an eye physician and surgeon, I have to directly request permission from the credentials committee to perform specific surgical procedures such as laser each 2 year cycle. In the case of Senate Bill 36, the state legislature is the credentials committee and the optometry lobby has asked for surgical privileges. The fact that this bill permits access to all schedules of controlled medications for optometrists should be enough to give you pause about supporting this bill. In my eye surgery practice, I deal with procedures and conditions associated with severe eye pain on a daily basis. I hardly ever prescribe a controlled medicine and when I do, it is usually just hydrocodone, which the optometrists already can legally prescribe. I have absolutely no problem with optometry professionals regulating themselves in the practice of optometry. However, Senate Bill 36 allows the optometry profession to define and regulate optometrists in the performance of ophthalmic surgery. Consequently, it is imperative that the current eye physicians and surgeons in the state of Alaska have a voice in this legislative process. If ophthalmic surgery is to be defined and regulated in statute, it makes perfect sense that ophthalmologists should be involved. If it is imperative to Alaskans that Senate Bill 1 36 be passed, please consider adding a definition of eye surgery addendum. This will put everybody on the same page regarding the definition of ophthalmic surgery, reduce the unnecessary rhetoric, protect patients and satisfy all concerned parties. 10:00:17 AM DOCTOR RACHEL REINHARDT, MEMBER, AMERICAN ACADEMY OF OPHTHALMOLOGY, SEATTLE (via teleconference), spoke against the legislation. She expressed concern that the legislation would interfere with patient safety. She stated that without specific language to restrict surgery, Alaska would be the first state in the country to adopt such broad and unprecedented legislation. She noted that similar legislation had been introduced in Washington State several years ago, which contained language that specifically prohibited optometrists from performing surgery. She shared that only 3 states in the country have passed similar bills. She concluded that SB 36 would result in unprecedented sweeping change in optometry's scope of practice and would have profound implications for patient safety. Co-Chair MacKinnon CLOSED public testimony. 10:05:08 AM HARRIET MILKS, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, shared that she represented 25 professional licensing boards, including all medical care boards. She provided a description the relationship between the boards and the department. She related that the department did not dictate what the regulations boards chose to draft, or how to regulate their professions. She explained that the department worked with the boards to make sure that the regulations were consistent with the constitution, the Administrative Procedure Act, and the scope of authority given in statute. She said that the department made sure that the regulations were adopted, consistent with the Administrative Procedure Act. She clarified that the boards did not devise and adopt regulations without public input. She explained that the Administrative Procedure Act required that proposed regulation go out for public comment for a minimum of 30 days. She emphasized that the public comment period for every regulation involved every state resident. She said that adoption of new regulations by a board required the consideration of public comment. She said that once the regulations were adopted by a board, they were sent back to the department for careful analysis. 10:10:25 AM Senator Micciche hypothesized about optometrists performing eye transplant and wondered whether there were criteria that the department would review to evaluate whether optometrists could perform eye transplants. Ms. Milks replied that the department would review the scope of practice as defined by the statute. If the scope of practice included eye transplants, there would be no legal problem with optometrists performing eye transplants. 10:12:00 AM Senator Micciche wondered whether the department could deny a new regulation if it fell outside of the scope of training. Ms. Milks replied in the affirmative. 10:13:01 AM Senator von Imhof wondered what other states had done in terms of defining ophthalmic surgery. Ms. Milks replied that she had not researched the issue. 10:13:15 AM Senator von Imhof wondered how the department would vet amendments to the legislation. Ms. Milks responded that the department was not taking a position on the legislation but would wait and see what the boards reaction was on the bill. 10:13:41 AM Senator von Imhof understood that the department would not offer a legal opinion on an amendment. Ms. Milks clarified that the department would not be silent, but that she was not currently prepared to speak on the bill. 10:13:56 AM Senator Olson hoped that the public understood that the legislature was not trying to pass legislation that harmed people. Ms. Milks thought that public opinion would stay favorable as long as the process, particularly public input, was respected. 10:14:55 AM Co-Chair MacKinnon noted the attached fiscal note #1, from Department of Commerce, Community and Economic Development (DCCED). 10:15:56 AM JANEY HOVENDEN, DIRECTOR, DIVISION OF CORPORATIONS, BUSINESS AND PROFESSIONAL LICENSING, DEPARTMENT OF COMMERCE, COMMUNITY AND ECONOMIC DEVELOPMENT, stated that the fiscal note had been doubled from the previous year in order to account for legal costs to amend regulation, printing, and postage in the first year. 10:17:43 AM Senator Olson asked about the removal of the surgical restriction to using laser equipment and wondered how lasers were used in eye care for diagnostics and treatment. Dr. Gonnason replied that ophthalmologists were concerned about the use of lasers. He relayed that much of the equipment he currently used employed lasers. He detailed that there were both diagnostic and therapeutic lasers. Diagnostic lasers were used for measurement. He related that currently optometrists were not supposed to use lasers and wondered how that would be possible when the most up- to-date equipment used lasers. He said that therapeutic lasers were used in limited procedures in his practice to combat glaucoma. He spoke to the misinformation offered by a previous testifier concerning a study in Oklahoma. 10:21:15 AM Dr. Gonnason contended that in the Oklahoma case some patients had to return to their optometrists more frequently was not due to questionable practices but was a result of optometrists working more conservatively. 10:21:48 AM Dr. Gonnason continued to discuss an anecdote concerning laser surgery procedures done on veterans. He asserted that the only thing that would change under the bill was that optometrists would be trained in smaller laser procedures. 10:23:08 AM Co-Chair MacKinnon wondered whether the malpractice costs for optometrists differed from family practice doctors or surgeons. Dr. Barney replied that malpractice insurance premiums were lower for optometrists. Co-Chair MacKinnon asked that whether the malpractice coverage would increase if the board increased the scope of practice for optometrists. Dr. Barney replied that procedures that were safe still held the risk of complication. He shared that malpractice rates had not increased significantly in Oklahoma. 10:24:54 AM Dr. Gonnason furthered that there was no correlation between scope of practice and malpractice insurance. 10:25:24 AM Co-Chair MacKinnon remarked that Alaska had some of the highest medical costs in the nation. She spoke of similar arguments in other medical fields. She lamented the myriad of issues that the legislature worked to balance in providing for public safety. 10:28:21 AM Co-Chair Hoffman stressed that the fees for medical services were markedly higher in Alaska than in the rest of the country. 10:29:51 AM Co-Chair MacKinnon agreed. She noted that there were cost drivers in ever facet of the medical field, but that industry had to consider risk factors and rates of return. SB 36 was HEARD and HELD in committee for further consideration.