Untitled Texas Attorney General Opinion

@ffice of the Elttornep @eneral %btateof PCexae DAN MORALES August 13,1992 ATTORNEY GENERAL Mr. Homer R. Goehrs, M.D., F.A.C.P. Opinion No. DM-152 Executive Director Texas State Board of Medical Examiners Re: Whether title 22 of the Texas P. 0. Box 13562 Administrative Code section 280.5(g), Austin, Texas 78711-3562 (h) is consistent with section 1.03 of the Texas Optometry Act, V.T.C.S. arts. 4552-1.01 through 4552-5.20, and related questions (RQ-304) Dear Dr. Goehrs: On behalf of the Texas State Board of Medical Examiners, you have requested our opinion on whether Rule 280.5(g), (h) of the Texas Optometry Board is consistent with the intent of section 1.03 of the Texas Optometry Act (the act), V.T.C.S. article 4552-1.01 through article 4552-5.20. Tex. Optometry Bd., 16 Tex. Reg. 5812, udoptedwith amendment,16 Tex. Reg. 7742 (1991). In addition, you ask how article III, section 51-a of the Texas Constitution affects the application of section 1.03 of the act. During its regular session, the 72d Legislature passed Senate Bill 774, which amended the act to create an additional category of optometry practition- ers: therapeutic optometrists. See Acts 1991,72d Leg., ch. 588; V.T.C.S. art. 4552, 93 1.02(2)(C), (7), 1.03,3.01,5.20. According to the amended act, both categories of optometry practitioners, optometrists and therapeutic optometrists, employ objective or subjective means . . . for the purpose of ascertaining and measuring the powers of vision of the human eye, examining and diagnosing visual defects, abnormal conditions, and diseases of the human eye and adnexa, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Id 9 1.02(l); ~JI id 8 1.02(7) (defining “practice of therapeutic optometry”). However, while the act expressly prohibits optometrists from treating, prescribing, or administering any kind of drug @I. $!1.02(l)), the act expressly authorizes therapeutic optometrists to administer or prescribe drugs or physical treatments in p. 793 Mr.HomerR. Goehrs, M.D.,F.A.C.P. - Page 2 W-152) the manner authorized by the act, and to treat the eye and adnexa’ as authorized by the act without the use-of surgery or laser surgery. Id 0 l.O2(7k see id 0 1.03(b). In particular, the act authorizes therapeutic optometrists to, among other w perform in the foknving manner: A therapeutic optometrist may administer and prescribe ophthalmic devices, over-the-counter oral medications, and topical ocular pharmaceutical agen&* other than antiviral agents and antiglaucoma agents, for the purpose of diagnosing and treating visual defects, abnormal conditions, and diseases of the human eye and adnexa.. . . This subsection does not authorize an optometrist to treat glaucoma in a manner that was not permitted by law on August 31.1991.3 Id Q 1.03(b) (footnotes added). Section 1.03(d) of the act requires the Texas Optometry Board (the board) to “adopt rules setting forth the SW pharmaceutical agents therapeutic optometrists may use in the practice of therapeutic optometry,” and section 1.03(e) of the act creates a five-member technical advisory committee to assist the board in “determining the specjic pharmaceutical agents” that therapeutic optometrists may use. (Emphases added.) A therapeutic optometrist violates the act if he or she uses any pharmaceutical agent that the board or any law does not authorize the therapeutic optometrist to use? Id Q 1.03(d). ‘“Adaed m- the lids and draina& ryrtcmof Ihc cya.’V.T.C.S.arts45521IJ2(8). 3Riorto~donAugust311991,optometristswbowueMdcrtbeeoDtroSmpuvkim,or dir&ion of a physic&~could treat gtauoolnaaccordin to the pbyskiaa’r spuifk diwtkw See V.T.C.S.art.4552-5.17.In our opinioq the uta&nent of cxtioa 1.03does not p&bit an optomctkst or thcrapcoticoptomctrirtfrom cootiouiogto treat slpucoma ocadiogtooa~ph~a apccitiedir~oos. *Wcnot~thatthc~w~as~~Dnrg~.Hcabh~~~ctyCodt~,~ the passe&cm, delivery, and mamdachareof all prescriptiondrugs. See Health & Safety Code f 483.001(3). Senate Bii 774 ameodccl the Da.ogerousDrug Act to add licenrccs of the Texas OptomctyBoPrdtothe~ofpracti~authorLcdtowritc~ AcU1991,72dLcg,cb. 588,f a6; see Health & Safety C&e f 493.llOl(l2)(A). In addition, Senate Bill 774 mncadrd the Dangerous Drug Act to rquirc pharmacists to determinethat a therapxtic optomctrirtis aWhorizcd to prcsen’bc a particularmedicationbefore dispcnsiq the medication. AU6 1991,M Leg, fh. Sss, f 27, at 2118;see Health & SafetyCc& 0 482X521;infm note 10;see also V.T.C!-S. art. 4542a-1,f 17(w) p. 794 Mr. Homer R. Goehrs. M.D., F.A.C.P. - Page 3 (EN-152) In compliance with section 1.03(d) of the act, the board promulgated the rule to be codified as title 22 of the Texas Administrative Code se&on 2805(g), (h) on December 18, 1591.5 In subsection (g), the board stated that a therapeutic optometrist may prescribe all ophthalmic devices, over-the-counter oral medica- tions, and “topical ph armaceutical agents used for treating visual defects, abnormal conditions, and diseases of the human eye and adnexa.” The rule then lists the permitted topical pharmaceutical agents by classification or category, not ,by generic or brand names.6 Section 280.5 expressly states that a therapeutic optometrist may not use a drug falling within any of the listed categories to treat glaucoma in a manner that the law did not permit on August 341991. 22 TAC 0 2805(g); see supm note 3. The rule further expressly excludes any antiviral drugs falling within the category of anti-infective classification of pharmaceutical agents that a therapeutic optometrist permissibly may prescribe. 22 T.A.C. 0 280.5(g). Subject to these two restrictions, however, the rule permits a therapeutic optometrist to “possess and administer any topical ocular pharmaceutical agent which has a legitimate diagnostic or therapeutic use”that falls within ‘one of the listed categories. Id 3 2805(h). You question the validity of the rule on two grounds. First, you claim that the rule is inconsistent with section 1.03 of the act. Second, you appear to question whether sections 1.02(7) and 1.03 of the act, which authorize therapeutic optome- trists to prescribe certain pharmaceutical agents, violate article III, section 51-a of the Texas Constitution. We consider your constitutional questionfirst. You request our opinion as to whether article III, section 51-a of the Texas Constitution “specifkally limits optometrists from treating Medicaid patients only, or whether it is a broader prohibition.” Generally, article III, section 51-a excepts assistance grants and medical care for needy aged, disabled and blind persons, and for needy dependent children from section 51’s prohibition against legislative grants p. 795 Mr. Homer R. Goehrs, M.D., F.A.C.P. - Page 4 (DES152) of public moneys to private individuals or associations. See Tex. Const. art. III, 0951.51-a; 1 G. BRADEN,THE CONSITUTION OF THE =ATE OF TEXAS: AN hINOTATED ANDCCm4PARATIvB hL4LY8Is at 236.46 (1977); R. WHITESIDE,THE biFAt3 OF THE TEXAS CON8TlTUTION ON PUBUc WBLFARB 17.21 (1973). However, the last paragraph of section 51-a state-s as follows: Nothing in this Section shall be construed to amend, mod@ or repeal Section 31 of Artick XVI of &is Constitution; provided further, however, that such medical care, se-n&es or assistance shall also include the employment of objective or subjective means, w&out the lake of drugs, for the purpose of ascertainiq and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Nothing hen& shall be cwstmed to pennit optometrists to treat the eyes for any defect whatsoever in any manner nor to admintkt~ nor to pmc&e any dmg orphysicaltmtment nhztsoever,unlesssuch optometrist is a regularly licensed physician or surgeon under the laws of this state.’ Fnphases and footnote added.] Tea. Const. art. III, 0 51-a. The history of the 1964 amendment to the constitution that added this paragraph indicates that the legislature, recognizing a great need previously unprovided among the state’s senior citizens, wanted to clarify that medical services p. 796 Mr.HomerR. Goehrs, M.D., F.A.C.P. - Page 5 (w152) authorized under section 51-a include the fitting of lenses to correct or remedy defective vision. See Legislative Council, THREE ~N8TITUTIONAL AMENDMENTS ANALYZED TO BE VOTED ON NOVEMBER 3, 1964, at 15. The first sentence of section 51-a’s final paragraph therefore ensures that the medical services the state provides to needy persons includes proper vision testing and fitting for corrective lenses or prisms. We note that nothing in the sentence limits its application to optometrists. We construe the language we have italic&d in the second sentence of section 51-a’s final paragraph simply to affirm that section 51-a. in and of itself, does not authorize optometrists to administer or preei drugs or physical treatments to needy persons receiving medical assistance. In our opinion, section 51-a’s statement that “[nlothing herein shall be construed to permh optometrists to.. . administer nor to prescribe” drugs or physical treatments does not mean that optometrists constitutionally are prohibited from administering and prescribing drugs or physical treatments. Rather, section 51-a merely leaves the legislature with the discretion to authorize, by statute, therapeutic optometrists to administer and prescribe drugs or physical treatments. Because the legislature now has enacted a statute permitting therapeutic optometrists to administer and prescrii ophthalmic devices, over-the- counter oral medications, and topical ocular pharmaceutical agents, article III, section 51-a does not preclude therapeutic optometrists from administering and prescribing drugs to Medicaid patients. Having resolved your constitutional question in the negative, we turn to your questions about the rule the board recently enacted, title 22 of the Texas Administrative Code section 280.5(g), (h), pursuant to the legislature’s mandate in section 1.03(d) of the act. We understand you first to argue that, while article 4552-1.03(b) precludes therapeutic optometrists from administering and prescriii antiviral and antiglaucoma agents, the board has included in its list of pharmaceu- tical agents therapeutic optometrists may use some drugs that serve as antiviral and antiglaucoma agents, but that therapeutic optometrists legitimately may prescribe for other conditions of the eye as well. You state that the board rule “includes those [antiviral and antiglaucoma] agents under the premise that they would not be used for those conditions. This is an untenable position and is contrary to the specific language in”article 4552, section 1.03. In our opinion, section 1.03(b) unambiguously and absolutely prohibits therapeutic optometrists from administering and prescribing antiviral and antiglaucoma topical ocular pharmaceutical agents, regardless of the use for which the therapeutic optometrist is legitimately using the agent. Indeed, the legislative p. 797 Mr. Homer R. Goehrs, M.D., F-4.C.P. - Page 6 (&I%?) history indicates that Senate Bill 774 originally authorized therapeutic optometrists to prescribe all topical ocular medications, but the bill was amended in committee to “[l]imir [] therapeutic optometrists’ prescription authority to topical ocular agents other than antiviral and antiglaucoma medications.” House Comm. on Public Health, Bill Analysis, S.B. 774,72d Leg., R.S. (1992) (comparing original S.B. 774 to C.S.S.B. 774). Given this legislative history, we believe that the legislature, if it had intended to authorize therapeutic optometrists to use antiviral and anriglaucoma agents for purposes other than treating viral infections or glaucoma, would have said so expressly. We note that the rule expressly prohibits the use of any of tbe listed drugsfor the treatment of glaucoma in a manner not permitted by law on August 31. 1991 (see supm note 3) and the use of any antiviral drugs that fall within the anti- infective classification, but the rule does not otherwise limit the use of antiviral and antiglauwma agents. 22 TAC. 0 2805(g)(3). Thus, to the extent that the rule permits therapeutic optometrists to administer and prescrii drugs that are antiviral or antiglaucoma agents - even if the therapeutic optometrist is using the drug for a legitimate purpose unrelated to its antiviral or antiglaucoma properties- it is invalid! See Attorney General Opinion JM-1149 (1990) at 2 (stating that courts will not respect agency interpretation comrary to clear meaning of unambiguous statute). Next, you argue that subsection (9) of section 280.5, by listing pharmaceutical agents therapeutic optometrists may use by classification or category, attempts “to circumvent the specificity required by the language of’ section 1.03. We disagree. We found no legislative history indicating what the legislature meant by its use of the word “specific”in section 1.03(d). Thus, we attach the ordinary meaning to the word. See Gov’t Code 0 312002(a). However, “specific,”as it is commonly used, has a range of definitions, from “constituting or falling into a specific category” to “definite or explicit.” Compare WEBSTER’SNORTHNEW COLLEGIATE DICITONARY 1132 (9th ed. 1990) wfttt Steed v. &ate, 180 S.W.2d 446, 447 (Tex. Civ. App.- Texarkana), t&f on other grounds, 183 S.W.2d 458 (Tex. 1944). Considering the absence of evidence as to the definition of “specifk” the legislature intended, the board reasonably could construe the statute to authorize it to enact a rule listing permitted topical ocular pharmace utical agents either by category or by generic or brand name. We note that the board in its rulemaking process considered whether listing ph armaceutical agents by classification or category complied with statutory intent. p. 798 Mr. Homer R. Goehrs, M.D., FAX-P. - Page 7 ct.!-152) See Texas Optometry Board, 16 Tex. Reg. 7742 (comment to rule 280.5). The board received several written comments on the issue. Ultimately, the board concluded that “[i]t would be unreasonable to require a listing of every pharmaceutical agent by brand or generic name, as the list would number into the several hundreds, and would change on a regular basis.” Letter from Joe R. Greenhill, Jr., Counse.l, Texas Optometry Bd. to C. J. Francisco, III, Texas Medical Assoc. (Dec. 18,199l). In our opinion, the board reasonably concluded that listing by category the pharmaceutical agents therapeutic optometrists are permitted to use. does not violate the legislative intent underlying section 1.03 of the act.9 Thus, we conclude that section 280.5(g) of title 22 of the Texas Administrative Code is not invalid for failing to meet some statutorily required degree of spexificity.10 See Attorney General Opinion JM-1149 at 2 (stating that courts will give weight to agency’s interpretation of ambiguous statute). SUMMARY Neither V.T.C.S. article 4552-1.03 nor title 22 of the Texas Administrative Code section 280.5(g), (h) violates article III, section 51-a of the Texas Constitution. To the extent that title 22 of the Texas Administrative Code section 280.5(g), (h) permits therapeutic optometrists to administer and prescribe an antiviral or antiglaucoma drugs even if for legitimate purposes other than treating a virus or glaucoma, it represents an p. 799 Mr. Homer R. Goehrs, M.D., F.A.C.P. - Page 8 W-152) unreasonable construction of unambiguous language in V.T.C.S. article 4552-1.03, and, to that extent, it is invalid. However, the Board of Optometry reasonably construed section 1.03 to permit the board to list by classification or category, rather than by brand or generic name, those topical ocular pharmaceutical agents a therapeutic optometrist may administer and prescribe. ‘DAN MORALES Attorney General of Texas WILL PRYOR First Assistant Attorney General MARYKELLER Deputy Assistant Attorney General RENEAHIcK!3 Special Assistant Attorney General MADELEINE B. JOHNSON Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General p. 800