Drug prescription by optometrists

Since we were just looking at Attorney General legal opinions, this next sample shows clear legal analysis on a particular health care turf battle.

This time, the issue is whether optometrists can administer prescription drugs during an exam. The AG plainly says no, but what is interesting is the legal reasoning and legal method the AG uses to arrive at the result. The opinion offers an easy read, even for non-lawyers, and shows how legal authorities tend to read statutes and arrive at conclusions.

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5577

October 9, 1979

OPTOMETRISTS:

Authority to administer prescription drugs

Optometrists may not administer precription drugs in the course of conducting an eye examination.

The Honorable William A. Ryan

State Representative

State Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

'May an optometrist, licensed under section 17401(b) of the new Michigan Public Health Code only to conduct examinations of the eye using physical and mechanical means, and who is not authorized under section 17708 of the Code to prescribe or obtain prescription drugs nevertheless, administer such prescription drugs in the course of conducting an eye examination?'

The Public Health Code, 1978 PA 368; MCLA 333.1101 et seq; MSA 14.15(1101) et seq, Sec. 17401(1)(b)(i)-(v), sets forth the scope of practice for optometry as follows:

'(b) 'Practice of optometry' means 1 or more of the following:

'(i) The examination of the human eye to ascertain the presence of defects or abnormal conditions which may be corrected, remedied, or relieved, or the effects of which may be corrected, remedied, or relieved by the use of lenses, prisms, or other mechanical devices.

'(ii) The employment of objective or subjective physical means to determine the accommodative or refractive conditions or the range of powers of vision or muscular equilibrium of the human eye.

'(iii) The adaptation or the adjustment of the lenses or prisms to correct, remedy, or relieve a defect or abnormal condition or to correct, remedy, or relieve the effect of a defect or abnormal condition of the human eye.

'(iv) The examination of the human eye for contact lenses and the fitting or insertion of contact lenses to the eye.

'(v) The employment of objective or subjective means for the examination of the human eye for the purpose of ascertaining a departure from the normal, measuring of powers of vision, and adapting lenses for the aid thereof.'

Moreover, 1978 PA 368, supra, Sec. 17411, sets forth the following restriction on the practice of optometry:

'A person shall not engage in the practice of optometry except as authorized by this article.'

This reference to Sec. 17411 appears in 1978 PA 368, supra, art 15, which deals with licensing and regulation of persons engaged in health care professions and occupations.

It is necessary to consider the provisions of 1978 PA 368, art 15, supra, to determine whether optometrists are authorized therein to administer prescription drugs.

1978 PA 368, art 15, supra, part 177, establishes the authority for administering prescription drugs. 1978 PA 368, supra, Sec. 17751(1) and (2) provide:

'(1) A drug requiring a prescription under the federal act or a law of this state shall not be dispensed except under authority of an original prescription or equivalent record thereof approved by the board. (1)

'(2) A prescription shall be dispensed only by a pharmacist or by a prescriber if the prescription falls within the scope of practice of the prescriber.' (emphasis added)

The word 'dispense' is defined by 1978 PA 368, supra, Sec. 17703(2), as follows:

"Dispense' means to issue 1 or more doses of a drug in a suitable container, appropriately labeled, for subsequent administration to, or use by, a patient.' (emphasis added)

Thus, a prescription drug may only be dispensed for subsequent administration to a patient if that person's scope of practice authorizes issuance of a prescription for the drug.

1978 PA 368, supra, Sec. 17708(3), defines 'prescription' as follows:

"Prescription' means an order for drugs or devices written and signed or transmitted by other means of communication by a prescriber to be filled, compounded, or dispensed. Prescribing shall be limited to a prescriber. . . .' (emphasis added)

The definition of 'prescriber' is set forth in 1978 PA 368, supra, Sec. 17708(2), as follows:

"Prescriber' means a licensed dentist, doctor of medicine, doctor of osteopathic medicine and surgery, doctor of podiatric medicine and surgery, veterinarian, or other licensed health professional acting under the delegation and using, recording, or otherwise indidcating the name of the delegating licensed doctor, of medicine or doctor of osteopathic medicine and surgery.' (emphasis added)

Legislative intent is determined from a reading of every section of the statute. Collins v Secretary of State, 19 Mich App 498; 172 NW2d 879, aff'd 384 Mich 656; 187 NW2d 423 (1971). Where the language is clear, a plain reading will suffice. Detroit Athletic Club v State, 309 Mich 721; 16 NW2d 136 (1944).

In the case of Attorney General v Raguckas, 84 Mich App 618, 624; 270 NW2d 665, 668 (1978), lev app den 406 Mich 912, motion for recon pending, an action was brought in circuit court to enjoin licensed chiropractors from dispensing prescription drugs. The Michigan chiropractic act, 1933 PA 145, as amended; MCLA 338.151 et seq; MSA 14.591 et seq, contained no language authorizing chiropractors to dispense drugs. In concluding that the defendants did not have the authority to dispense drugs, the court in Raguckas, supra, stated:

'. . . The pharmacy act states that, unless a pharmacist's license is obtained, no one but physicians, dentists and veterinarians may prescribe drugs. MCL 338.1128; MSA 14.757(28). Since the term 'physician' is not used anywhere within the chiropractic act, it logically follows that chiropractors were not intended to be able to dispense drugs. In addition, the Legislature could have easily specifically authorized chiropractors to dispense drugs, as was done in the case of osteopaths, MCL 338.101a(c); MSA 14.571(1)(c), but failed to do so.'

It should be noted that in recent years, some state legislatures have authorized optometrists to administer certain prescription drugs in the course of conducting an eye examination. Whether the Michigan legislature should amend 1978 PA 368, supra, to authorize such practice is for the legislature to determine.

It is my opinion, therefore, that optometrists may not administer prescription drugs in the course of coducting an eye examination.

Frank J. Kelley

Attorney General

(1) A review of the rules promulgated by the Board of Medicine, Board of Pharmacy and Board of Osteopathic Medicine and Surgery indicates that none of these boards has adopted rules providing for an 'equivalent record.'

Turf battles occur among conventional care providers as well as CAM practitioners. Sometimes the state just has to come and resolve the boundaries between the professions.