                                The Attorney General of Texas

MARK WHITE
Attorney General                                  July   30, 1982

                               Honorable Bill Clayton                  opinion No.   w-499
Supreme Court SuildinQ
                               Speaker of the Rouse of
P. 0. Box 1254S
Austin. TX. 78711.2548
                                  Representatives                      Re:   Use of topical ocular
512/475-2501                   Capitol Building                        pharmaceutical   agents    by
Telex 910(874~1367             Austin, Texas   78711                   optometrists,  and    related
Telecopier   512l475-0255                                              matters

1507 Main St.. Suite 1400
                               Dear Speaker Clayton:
Dellas. TX. 75201.4709
2W742-8944                          You have posed several questions concerning the authority of the
                               Texas State Board of Medical Examiners to promulgate and enforce
                               administrative rules ~implementing section 3.06(d)(5) of the new
4S24 Alberta Ave., Suite 160
El Paso. TX. 799052793         Medicalt;;actice Act, article 4495b. V.T.C.S. That subsection deals
91515333484                    with         administration by    optometrists   of  topical   ocular
                               pharmaceutical agents, which are medicinal drugs applied to surface
                               areas of the eye that produce effects which aid in the examination or
1220 Dallas Ave., Suite 202
Houslon. TX. 770026986
                               treatment of eye diseases or conditions. Your letter to us states:
71-
                                        On Sunday, Pebmary 21. 1982, the Medical Board
                                        met and tentatively adopted rules to implement
606 Broadway, Suite 312                 Section 3.06(d)(5)....     These proposed rules
Lubbock, TX. 7S401-3479
e@i747-5238
                                        appear to violate both the letter and the intent
                                        of the law, and appear to exceed the Medical
                                        Board's rulemaking authority....
4249 N. Tenth. Suite 6
McAllen, TX. 78501.1685            Section 3.06(d)(5) reads in part:
512mw4547

                                           (d) This Act shall be so construed that:
200 Main Plaza, Suite 400
San Antonio, TX. 782052797                 ....
51212254191

                                           (5) (A) A     duly   licensed   and    qualified
An Equal Opportunity/                   optometrist   may   administer    topical    ocular
Affirmative Action Employer             pharmaceutical agents in the practice of optometry
                                        as   provided   by    this   subdivision.     These
                                        pharmaceutical agents may not be used           for
                                        therapeutic purposes.

                                                (B) To be entitled to use topical ocular
                                        pharmaceutical   agents   in   the practice   of
                                        optometry, an optometrist must possess a valid
                                        standing delegation order that:

                                                           p. 1788
                                                                         .   .


Honorable Bill Clayton - Page 2        (Mw-499)




                 (0    is issued to the optometrist by an
                 area physician    licensed to   practice
                 medicine in this state; and

                  (ii) authorizes    the use of the pharmaceu-
                  tical    agents     authorized    by    this
                  subdivision.

                 (C) On request, an optometrist will be
         Issued a standing delegation order described by
         Paragraph (B) of this subdivision unless the
         physician acting as a reasonable and prudent
         physician determines that denial is within the
         scope of sound medical judgment as it pertains to
         optometry, or that it is not in the public
         interest, and the basis for denial shall be given
         to the requesting optometrist in writing if
         requested. It is necessary that the physician
         have knowledge of the requesting optometrist, and
         if not, then same shall be good cause for denial.



                 (G) tr;zician    who has issued a standing
         delegation           in   compliance   with   this
         subdivision is immune from liability in connection
         with acts performed pursuant to the standing
         delegation order so long as he has used prudent
         judgment in the issuance or the continuance of the
         standing delegation order.

                  (8) Nothing herein is intended to limit
          or expand the practice of optometry as defined by
         _law. (Emphasis added).

     Among other things, the tentatively adopted administrative rules
that you question purport to specify restrictive terms and conditions
for standing delegation orders issued by physicians and to prescribe a
model form for such orders. The portion of section 3.06(d)(5) that
speaks to the role of the Board of Medical Examiners in this process
reads:

            (D) A standing delegation order issued under
         this subdivision or a representation of the order
         will be prominently displayed in the office of the
         optometrist. The board will prescribe the form of
         the standing delegation order and the certificate
         or representation of the order.       The standing
         delegation order, as a minimum. will:

                                    p.1789
Honorable Bill Clayton - Page 3      ww-499)




             (0     be in,writing. dated and signed by the
             physician;

             (ii)   specify the available topical ocular
             pharmaceutical agents,    including but     not
             limited to topical anesthetics and dilating
             agents, to be administered in the office; and

             (iii) specify that said agents shall not be
             used for therapeutic purposes.

             (E) On the complaint of any person or on its
          own initiative, the board of medical examiners may
          cancel a standing delegation order issued under
          this~section if it determines that the optometrist
          possessing the order has violated the standing
          delegation order or this section.

             (PI Except as provided by Paragraph (E) of
          this subdivision, a. standing delegation order
          issued under this subdivision remains valid as
          long as:

             (i)    the physician who issued the order is a
             resident of this state and is licensed to
             practice medicine in this state;

             (ii)   no irregularities are found on annual
             review; and

            (iii) the order is not canceled for good cause
            by either party.

     Several of your questions concern the application of specific
rules to specific situations, but all of them deal with the power of
the Board of Pledical Examiners to limit or control the discretionary
authority of physicians to invest optometrists with privileges
respecting the use of such pharmaceutical agents. Before addressing
your specific questions, it is necessary to notice the relationship
the drugs have to the practice of optometry.

     Au optometrist who administers topical ocular pharmaceutical
agents does not practice optometry when he does SO, whether or not he
acts under a standing delegation order issued by a physician. The
"practice of optometry" is legally defined by the Texas Optometry Act.
article 4552-1.02. V.T.C.S.. aa:

         the employment of objective or subjective means,
         without the use of drugs, for the purpose of
         ascertaining and measuring the powers of vision of
         the human eye, and fitting lenses or prisms to

                                  p. 1790
/   .


        Honorable Bill Clayton - Page 4      (Mw-499)




                  correct or remedy any defect or abnormal condition
                  of vision. Nothing herein shall be construed to
                  permit optometrists to treat the eyes for any
                  defect whatsoever in any manner nor to administer
                  nor to prescribe any drug or physical treatment
                  whatsoever, unless such optometrist is a regularly
                  licensed physician or surgeon under the laws of
                  this state. (Emphasis added).

             Although subsections (A) and (B) of section 3.06(d)(5) of the
        Medical Practice Act speak of the use of topical ocular pharmaceutical
        agents "in the practice of optometry," section 3.06(d)(S)(R) specifies
        that nothing in the act is intended to "limit or expand the practice
        of optometry as defined by law." (Emphasis added). Words may be
        supplied to a statute in order to give effect to the clear legislative
        intent. Sweeny Hospital District v. Carr, 378 S.W.Zd 40 (Tex. 1964).
        We believe the words, "in the practice of optometry." as used in
        subsections (A) and (B) must mean "in connection with-the practice of
        optometry."   (Emphasis added).    Otherwise, the section would be
        internally inconsistent. One subsection would nullify others. The
        legislative intent is made clear, in our opinion, by section
        3.06(b)(2). which states that the act does not apply to "duly licensed
        optometrists who confine their practice strictly to optometry as
        defined by law." (Emphasis added). The disputed provisions of the
        act do not allow optometrists to use drugs as an integral part of the
        practice of optometry.

             The legislature has clearly indicated its intent that the use of
        such pharmaceutical agents be regulated when administered by
        optometrists in connection with the practice of optometry. Under its
        police power, the legislature may place such regulatory power where it
        chooses so long as no provision of the constitution is contravened.
        See Francisco v. Board of Dental Examiners. 149 S.W.2d 619 (Tex. Civ.
        G.   - Austin 1941, writ ref'd). See also Trimble v. Texas State
        Board of Registration for Professional Engineers, 483 S.W.2d 275 (Tex.
        Civ. App. - El Paso 1972, writ ref'd n.r.e.).

             Your first two questions are as follows:

                     1. With regard to the implementation of
                  section 3.06(d)(S) of the PiedicalPractice Act, is
                  the authority of the Medical Board limited to the
                        roles   specifically   stated   in   section
                  z6(d)(5) , &,
                              I e   (1) to prescribe the form of the
                  standing delegation order and the certificate or
                  representation of the order, and (2) on complaint
                  of any person or on its own initiative to cancel a
                  standing delegation order if it determines that
                  the optometrist possessing the order has violated
                  the standing delegation order?

                                          p. 1791
Bonorable Bill Clayton - Page 5       (Mw-499)




             2. (a) In     performing  its   function   of
          prescribing the form of the 3.06(d)(5) standing
          delegation order and its representation, is the
          authority of the Medical Board limited to
          prescribing   matters   of  form   rather   than
          substantive content?

                 (b) Beyond the substantive requirements
          expressly   stated   in   the  statute,   is the
          substantive content of a 3.06(d)(5) standing
          delegation order to be determined solely by the
          delegating physician and the optometrist?

                 (c) If the Medical Board may impose
          requirements on the substantive content of a
          3.06(d)(5) delegation, to what extent may they do
          so?   Particularly, may the Medical Board make
          medical or optometric judgments and impose them
          upon the delegating physician and the optometrist?

     Section 3.06(d)(S) assigns no role in the issuance or'
cancellation of a standing delegation order to anyone other than the
board and individual physicians. To ascertain the authority of the
board, we must first consider the extent of authority conferred upon
physicians.

     Subsection (d)(5)(B)(i) requires that a standing delegation order
be issued to an optometrist "by an area physician licensed to practice
medicine in this state." Subsection (d)(S)(C) seemingly requires an
area physician to issue such an order unless the physician, "acting as
a reasonable and prudent physician" determines (1) that denial is
within the scope of sound medical judgment as it          pertains to
optometry, or (2) that it is not in the public interest. Lack of
"knowledge" by the physician of the optometrist is also specified as
good cause for denial.

     Subsection (d)(S)(F) provides that a standing delegation order
may be invalidated by the issuing physician only if he moves his
residence from the state, surrenders his          license, discovers
irregularities on annual review, or cancels the order "for good
cause." The order can be cancelled by the board only if it determines
that the optometrist "has violated the standing delegation order" or
section 3.06 of the act. V.T.C.S. art. 4495b. 13.06(d)(S)(E). Also,
subsection (d)(S)(G) specifies that an issuing physician is immune
from liability for acts performed pursuant to the standinn
                                                         - delenation
                                                               -
order so long as he has used prudent judgment in its issuance -or
continuance.

     Given its widest scope, the language of section 3.06(d)(5) would
empower a physician to authorize an optometrist to administer (for
nontherapeutic purposes) any topical ocular pharmeceutical agent to

                                  p. 1792
.

    Honorable Bill Clayton - Page 6      (Mw-499)




    any person in his office at any time. Moreover, only the issuing
    physician could effect a cancellation of the order unless a violation
    of the order as issued by the physician (or a violation of the
    statutory section) were proved.

         We agree with your contention that it was the manifest intent of
    the legislature to invest individual physicians with broad power of
    the sort described above. But, in our opinion, such a reading of
    section 3.06(d)(5) renders it unconstitutional.

          By act of an issuing physician, an optometrist may, under the
    provisions of subsection (d)(S), obtain official permission and a
    personal right to perform acts on his own account, f.e.. without any
    form of supervision by the physician. The issuing physician is,
    moreover,  statutorily authorized to base his decision to issue or to
    decline to issue the permitting order on his perception of "the public
    interest." Thus, the statute in effect authorizes the myriad private
    physicians in this state to act as licensing agents for the state,
    granting or withholding such licenses as each deems best for "the
    public interest."

         The scheme of the statute raises serious questions about the
    constitutionality of delegating such public powers to private
    individuals who are neither members of the executive branch of
    government. nor answerable to the public. See Tex. Const. qt. I, $2,
    art. II, il. art. III, $1; Gerst v. Nixon.%i    S.W.Zd 350 (Tex. 1966)
    (granting of permits is administrative function); Attorney General
    Opinion H-41 (1973) (control of dentistry by private organization).
    See also Tex. Const. art. I. 117 (legislative control of privileges).
    We need not address those questions here, however; because in our
    opinion the virtually unlimited nature of the discretion placed in the
    physicians is sufficient to invalidate the statute.

         In Bloom v. Texas State Board of Examiners of Psychologists, 492
    S.W.2d 460. 462 (Tex. 1973). the Supreme Court of Texas characterized
    the question before it as:

             whether the Legislature could constitutionally
             empower an administrative agency to do whatever it
             'may' consider in the best interest of the public
             without regard to statutory standards or published
             agency rules.

    In concluding that the legislature could not do SO, the court relied
    on this quotation from Railroad Commission v. Shell Oil Company. 161
    S.W.Zd 1022, 1025 (Tex. 1942):

             It   is    a   well-established   principle   of
             constitutional law that any statute or ordinance
             regulating the conduct of a lawful business or
             industry   and   authorizing  the   granting  or

                                      p. 1793
..




     Honorable Bill Clayton - Page 7      (Mw-499)




              withholding of licenses or permits as the
              designated officials arbitrarily choose, without
              setting forth any guide or standard to govern such
              officials in distinguishing between individuals
              entitled to such permits or licenses and thoee not
              so entitled, is unconstitutional and void.

          Subsection 3.06(d)(5)(C) requires an area physician to issue a
     standing delegation order unless he determines. "as a reasonable and
     prudent physician," that denial is either "within the scope of sound
     medical judgment as it pertains to optometry." or "in the public
     interest." A requirement that a licensure decision%   based on "sound
     medical judgment" might establish a sufficient statutory standard to
     avoid invalidity. And the phrase "in the public interest" might
     furnish an adequate statutory standard in some situations, i.e., as 8
     guide for some adminietrative agencies.      But in our *ion        a
     statutory declaration -- without more -- that licensure decisions are
     to be made by individual physicians on the basis of their varied
     personal concepts of "the public interest" clearly doee not don so.
     See Tex. Const. art. III, Sl; Bloom v. Texas State Board of Examiners
     ofPsychologists.  s;      Railroad Coteniesion v. Shell Oil Company,
     supra.

          In Sx parte Leslie, 223 S.W. 227, 229 (Tex. Grim. App. 1920). the
     court considered a Live Stock Sanitary Commission rule, proclaimed
     pursuant to a penal statute, requiring cattle owners to have their
     cattle dipped unless an agent of the commission deemed it "safe or
     expedient" to excuse them from doing so. In finding the measure
     unconstitutional, the court observed that the power of the agents to
     discriminate between individuals under such a proclamation:

              is required to rest upon no distinction, but
              permits those executing it to select, without
              giving reason therefor. those who shall obey it
              and those who shall be exempted from its penalty.
              No condition is named to which a citizen
              complaining of    discrimination can point as
              condemning the action of those executing the law.
              No fact is named in the law or in the proclamation
              which he may establish and urge as a matter of
              right as exempting him from the penalty.

          In the eituation before us, the legislature has made the
     administration of topical ocular pharmaceutical agents by optometrists
     unlawful and fixed a penalty therefor, but provided that individual
     physicians may use their own discretion in selecting optometrists to
     be exempted from the penalty. As with the selections made by live
     stock sanitary commission agents,      the power of physicians to
     discriminate among individuals rests on no distinction. No condition
     is named to which an optometrist complaining of discrimination can
     point as condemning the action of those executing the law, nor is any

                                       p. 1794
I   .
                                                                                 .   .


        Honorable Bill Clayton - Page 8        (MN-499)




        fact named which an optometrist may establish and urge as exempting
        him from the penalty as a matter of right.

             It would be difficult enough for an administrative agency to
        apply the "in the public interest" standard with any degree of
        precision. The thousands of physicians in this state can hardly be
        expected to do so, however, inasmuch as each will inevitably have a
        separate and probably different concept of what is "in the public
        interest." Uniformity in the application of the "public interest"
        standard is, therefore, an impossibility here.

             In Railroad Commission v. Shell Oil Company. s.         the Texas
        Supreme Court observed that an ostensible "prevention of waste"
        standard was really no standard at all if the same facts could serve
        in one instance to exempt a person from the general prohibition of the
        law and to deny exemption to a different person in another instance.
        Under the statute here, the application of one optometrist for a
        standing delegation order could be denied by a physician on facts
        deemed sufficient by that same physician, or another, to support the
        application of a different optometrist. Statutory delegations of
        power may not be constitutionally accomplished by language so broad
        and vague that persons of common intelligence must necessarily guess
        at its meaning and differ as to its application.            *e   Texas
        Antiquities Committee v. Dallas County Community College Dissct,   554
        S.W.Zd 924 (Tex. 1977); Spann v. City of Dallas, 235 S.W. 513 (Tex.
        1921). See also United 7:hiropractors of Washington, Inc. v. State,
        578 P.2d38   (Wash. 1978): Blumenthal V. Board of Medical Examiners.
        368 P.2d 101. (Cal. 1962) 'm     Iated power must be accompanied by'
        suitable safeguards to guide its use and to protect against its
        misuse).

             Inasmuch as we believe subsection 3.06(d)(S) of the Medical
        Practice Act is unconstitutional, we conclude that it neither confers
        authority on the Board of Medical Braminers or individual physicians,
        nor deprives them of any authority. Your questions are referable to
        this subsection, and to the extent that they are, they are answered by
        the foregoing conclusion. But in the interest of clarity we will
        briefly discuss the remainder of the Medical Practice Act insofar as
        it relates to the topic at hand.

             The invalidity of subsection 3.06(d)(S) in no way diminishes the
        authority of the Board of Medical Examiners to promulgate rules
        respecting the practice of medicine and the enforcement of valid
        provisions of the act. V.T.C.S. art. 4495b. 111.02(8), 2.09(a).
        3.06(d)(l). (2). (3). 5.02(a). See Acts 1981. 67th Leg., 1st C.S.,
        ch. 1. 15 at 1, 36 (severability clause). Cf. Texas State Board of
        Examiners in Optometry v. Carp, 412 S.W.Zd 30mTex.   1967). The board
        has express authority to regulate the use of dangerous drugs by
        physicians and those   acting under the supervision of a physician.
        V.T.C.S. art. 4495b, 13.08(4)(E). (F), (I); Dotson v. Texas State
        Board of Medical Examiners. 612 S.W.2d 921 (Tex. 1981); Scott v. Texas

                                          p.   1795
Honorable Bill Clayton - Page 9           (Mu-499)




State Board of Medical Rxaxiners. 384 S.W.Zd 686 (Tex. 1964). See
also V.T.C.S. art. 4495b. 13.06(d)(2). (31, 3.07(i). It is tobe
xd      that under the delegations validly authorired by the Medical
Practice Act (unlike those contemplated by eubsectiox 3.06(d)(S)) the
delegating physician is not permitted to escape respoxsibility for the
acts of his delegates. Thue. he does not act as a licensing agent for
the state in such circuxstances inasmuch as he cannot empower his
delegates to act on their own account. They are his agents. See
Attorney   General Opinion FM-275 (1980). Cf. 8parger v. War-
Hos ital Inc., 547 S.W.2d 582 (Tex. 1977); Attorney    General Opinion
.iGihfmr

     It should also be noted that the Texas Optometry       Act gives
optoxetrists no license to use drugs for any purpose, therapeutic or
not, and that optometrists are aot among those permitted by the
dangerous drug laws to deliver dangerous drugs in their practice. See
V.T.C.S. arts. 4476-14, 4476-15, 4552-1.01 et seq.         SubsectiK
3.06(d)(l), (2) and (3) of the Medical Practice Act. however, would
permit physicians, “through physicians orders, standing wdical
orders, standing delegation orders. or other orders where applicable,
as the orders are defined by the board [of Medical Exaxinersl,” to
authorize optometrists, as agents of the physician, to perform medical
acts and to administer dangerous drugs under certain conditions.
(Bxphasis added).

                               SUMMARY

               Subsection 3.06(d)(5) of article 4495b, the
            Medical Practice Act of 1981. Is unconstitutional.

                                            Very truly yours,


              ,

                                           Attorney   General of Texas

JOHLPW. FAINTER.JR.
First Assistant Attorney   General

RIClURD E. GRAY III
Executive Assistant Attorney   General

Prepared by Bruce Youngblood
Assistant Attornsy Genaral




                                     p.   1796
.   .                                                        .

        Honorable Bill Clayton - Page 10      (Mw-499)   -




        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Robert Gauss
        Rick Gilpin
        Jim Moellinger
        Bruce Youngblood




                                           p. 1797
