ODs and Laser: Exploring Legal Aspects

Historically, almost all ocular surgical procedures have been exclusively within the scope of practice of ophthalmologists, who learn how to perform eye surgery during an ophthalmology residency and learn more advanced surgical techniques during an optional fellowship (eg, retina, cornea, glaucoma). An exception to the ocular surgical scope of practice being limited to ophthalmologists is the opportunity in three states for optometrists to perform certain laser procedures (primarily posterior capsulotomy and glaucoma laser procedures) and a limited number of other minor nonlaser surgical procedures.

In Oklahoma, the state expanded its scope of optometry to include laser surgery procedures in 1988; in Kentucky, optometrists were permitted to perform laser procedures in 2011; and, most recently, in 2014, the state of Louisiana granted optometrists an expanded scope of practice that includes certain laser procedures. As optometrists’ experience in these three states continues to grow, it is likely that more states will allow optometrists to perform certain ocular laser procedures.

Each of the three states that now allow optometrists to perform laser procedures has its own credentialing requirements (in addition to licensure), which are summarized below to focus on the specific requirements needed to perform laser procedures.

OKLAHOMA

The Oklahoma Board of Examiners in Optometry requires that optometrists obtain “laser board certification” before performing ocular laser procedures in Oklahoma. The laser training course occurs at the Northeastern State University College of Optometry in Tahlequah, Oklahoma. Applicants must pass a written and practical laser examination conducted by the board of examiners prior to laser certification.¹

KENTUCKY

Optometrists must be credentialed to perform “expanded therapeutic procedures” by completion of a course prior to obtaining a laser credential. In addition, to be credentialed to perform expanded therapeutic laser procedures, the criteria below must be met:

The optometrist must provide documentation to the board from a board-approved preceptor indicating that the optometrist has (1) performed the anterior segment laser procedure in the presence of the board-approved qualified preceptor; and (2) demon-strated clinical proficiency to the board-approved preceptor in the performance of the procedure on a living human eye.

The board-approved preceptor must document in writing the preceptor’s observations of the optometrist’s performance and state that the optometrist has satisfactorily demonstrated the optometrist’s knowledge and qualifications in the performance of the procedure.

The board-approved preceptor must be (1) a licensed optometrist or ophthalmologist whose license is in good standing; (2) a full-time or adjunct faculty member of an accredited optometry or medical school; and (3) credentialed in the expanded therapeutic procedure or expanded therapeutic laser procedure that the preceptor is teaching.²

LOUISIANA

Optometrists must complete a 32-hour course focused on laser surgery topics or, beginning with the graduating class of 2015, any optometrist who graduates from an optometry school whose program includes all of the training and testing requirements established by the Louisiana Board of Optometry may be deemed to have met the requirements for certification to perform authorized ophthalmic surgery procedures, including certain laser procedures.³

WHAT OPHTHALMOLOGISTS NEED TO KNOW

In Kentucky (and potentially other states in the future), an ophthalmologist may be asked by an optometrist colleague to serve as a preceptor for the purpose of obtaining a laser credential. There are several implications for the ophthalmologist to consider before agreeing to serve as a preceptor, including the following:

According to the Kentucky rules outlined above, the preceptor must be physically present during the laser procedure.

Because the preceptor must document “demonstrated clinical proficiency” by the optometrist to the optometry board, the ophthalmologist-preceptor may want to consider having the procedures performed at a teaching hospital that is equipped with two-headed microscopes on the lasers (typically used for teaching residents).

Because a laser credential has significant monetary value, the ophthalmologist-preceptor should charge the optometrist a fair market value fee for the time that he or she spends with the optometrist acting as a laser procedure preceptor. Otherwise, especially if the optometrist is a referral source for the ophthalmologist, free preceptor services could be viewed as a kickback in violation of the anti-kickback statute.

The patient being treated with the laser procedure being performed by the trainee optometrist and proctored by the ophthalmologist should give his or her informed consent regarding the circumstances under which the procedure is being performed. Otherwise, a suboptimal outcome could result in liability for both the optometrist-trainee and the ophthalmologist-preceptor.

Because the ophthalmologist- preceptor must document “demonstrated clinical proficiency” by the optometrist, the ophthalmologist must be confident that the optometrist has demonstrated clinical proficiency through a complete understanding of the procedure and its indications, risks, and benefits, and through actual performance of the procedure on a patient or patients. Otherwise, there is a possibility for downstream liability if an inadequately trained optometrist has a negative outcome that resulted from a laser procedure that the optometrist was not prepared to perform unattended.

These are some of the key considerations for ophthalmologists who may be asked to be involved in the credentialing of optometrists as other states consider expanding optometrists’ scope of practice to include laser procedures.

EDITORS’ NOTE
This article does not constitute the giving or receiving of legal advice.