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Office of the Attorney General
State of Texas


November 19, 1998

William R. Archer III, M.D.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Letter Opinion No. 98-110

Re: Whether employees of the University of Texas Southwestern Medical Center at Dallas who dispense contact lenses under the direct supervision and control of Southwestern physicians and optometrists are exempt from permitting requirements set forth in V.T.C.S. article 4552-A (RQ-1087)

Dear Commissioner Archer:

Under the Texas Contact Lens Prescription Act,(1) an optician who has not obtained a contact lens dispensing permit from the Texas Board of Health (the "board") may not dispense contact lenses. A physician, an optometrist, or a therapeutic optometrist may dispense contact lenses without a permit, and an employee of one of these three professionals who dispenses contact lenses under the professional's direct supervision and control also need not obtain a permit. You ask whether an employee of the University of Texas Southwestern Medical Center at Dallas (the "Medical Center"), who dispenses contact lenses under the direct supervision and control of a physician- or optometrist-employee of the Medical Center, must obtain a permit from the board. We conclude the employee need not.

Under the Texas Contact Lens Prescription Act (the "act"), no optician may dispense contact lenses in this state unless, among other things,(2) the optician holds a valid contact lens dispensing permit.(3) An "optician," for purposes of the act, is a person, not including a physician, optometrist, therapeutic optometrist, or pharmacist, "who is in the business of dispensing contact lenses."(4) Nevertheless, "an employee of a physician, optometrist, therapeutic optometrist, or pharmacist" who dispenses contact lenses under the direct supervision and control of the professional need not obtain a permit.(5) A person who violates the act commits a class B misdemeanor(6) and may be subject to civil penalties.(7)

We limit our answer to the very limited class of individuals about whom you ask. These opticians dispense contact lenses as employees of the Medical Center (or another medical school in Texas) for the Medical Center's Department of Ophthalmology. Moreover, you stipulate that the opticians are directly supervised and controlled by physicians, i.e., ophthalmologists, and optometrists, who also are Medical Center employees.

You suggest that the statute is unclear about whether these opticians must obtain a permit under the act. On the one hand, you contend, the individuals do not clearly fit within the act's definition of "optician," which is limited to one who is in the business of dispensing contact lenses, because they, like the nonprofit Medical Center that employs them, do not profit from dispensing contact lenses. On the other hand, the individuals dispensing contact lenses are not clearly excepted from the act's permit requirement because they are not employees of the physicians or optometrists who directly supervise or control them; rather, they are employees of the Medical Center.

In our opinion, even if the individuals you describe are opticians within the act's definition, they are excepted from the act's requirement that opticians who dispense contact lenses must first obtain a permit. We construe section 9(a) to apply to a contact lens dispenser who is directly supervised and controlled by a physician, optometrist, therapeutic optometrist, or pharmacist, whether or not the dispenser is employed by the physician, optometrist, therapeutic optometrist, or pharmacist. Thus, those contact lens dispensers who act independently of a physician's, optometrist's, or therapeutic optometrist's supervision and control must obtain a permit from the board, while those who do not act independently need not.(8) Because these individuals are excepted from the reach of the act, the board may not require them to obtain a permit.

We believe this construction of section 9(a) of the act is most consistent with the act's general purpose: to protect consumers.(9) Usually, of course, an optician who is directly supervised and controlled by a physician, optometrist, therapeutic optometrist, or pharmacist will be an employee of that supervisor. But in those few cases where both the optician and the supervising physician are employed by a medical school, we believe the consideration more relevant to consumer protection is whether the optician is directly supervised by one of the listed professionals, not whether the optician is paid by one of the listed professionals. Additionally, the act expressly permits a physician to delegate to anyone under the physician's control or supervision duties relating to dispensing contact lenses.(10) It would be an odd construction of the act indeed if a physician could delegate the dispensing of contact lenses to an individual under the physician's direct supervision or control, but the individual could not perform the delegated task because he or she had not obtained a permit under the act.

S U M M A R Y

An employee of the University of Texas Southwestern Medical Center at Dallas who dispenses contact lenses under the direct supervision and control of a physician or optometrist, also employed by the Medical Center, need not obtain a permit under the Contact Lens Prescription Act, V.T.C.S. art. 4552-A. Because these individuals are excepted from the reach of the act, the Board of Health may not require them to obtain a permit.

      Yours very truly,

      Kymberly K. Oltrogge
      Assistant Attorney General
      Opinion Committee


Footnotes

1. V.T.C.S. art. 4552-A; see id. 1.

2. See id. 4(b) (prohibiting, in general, person from dispensing contact lenses unless person receives original contact lens prescription).

3. See id. 4(c), 5(a).

4. Id. 2(5).

5. See id. 8.

6. See id. 6(c).

7. See id. 6(e).

8. Cf. V.T.C.S. art. 4552-5.15(a) (indicating that optometrists and therapeutic optometrists shall practice independently of business of any dispensing optician, except in limited circumstances).

9. The legislature adopted the act in 1997 to protect consumers. See generally The Texas Contact Lens Prescription Act: Hearings on H.B. 196 Before the House Comm. on Public Health, 75th Leg., R.S. (Mar. 26, 1997) (tape available from House Video/Audio Services Office); House Comm. on Public Health, C.S.H.B. 196, 75th Leg., R.S. (1997). One of the legislature's primary motivations in adopting the act was to require a physician, optometrist, or therapeutic optometrist who fits a patient for contact lenses to give the contact lens prescription to the patient, if the patient requests it. See V.T.C.S. art. 4552-A, 3(a); The Texas Contact Lens Prescription Act: Hearings on H.B. 196 Before the House Comm. on Public Health, 75th Leg., R.S. (Mar. 26, 1997) (testimony of Representative Maxey, author of the bill; Lisa McGiffert, representing Consumers Union; and Fred Nieman, representing Texas Optometric Association) (tape available from House Video/Audio Services Office). But see V.T.C.S. art. 4552-A, 3(d) (listing exceptions). In addition, the act requires a contact lens dispenser in general to fill a contact lens prescription without modifying it. See V.T.C.S. art. 4552-A, 4(f)(1); cf. V.T.C.S. art. 4551-1, 4(c) (prohibiting optician registered under Opticians' Registry Act, V.T.C.S. art. 4551-1, to alter contact lens prescription). Similarly, the act forbids a physician, optometrist, or therapeutic optometrist to require a patient to waive the examiners' liability for the accuracy of the eye examination on which the contact lens prescription is based or the accuracy of the contact lens prescription provided to the patient. See V.T.C.S. art. 4552-A, 11(a).

10. See V.T.C.S. art. 4552-A, 9(a); accord V.T.C.S. art. 4495b, 3.06(d) (authorizing physician licensed under Medical Practice Act, V.T.C.S. art. 4459b, to delegate to "any qualified and properly trained person . . . acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician, the act can be properly and safely performed by the" delegatee and if delegation will not violate any other statute).


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