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AGO 1991 No. 33 - November 27, 1991
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

BOARD OF OPTOMETRY ‑- OPTOMETRISTS ‑- OPTICIANS ‑- REGULATIONS ‑- PREEMPTION ‑- ANTITRUST ‑- Authority of Optometry Board to adopt rules defining a contact lens prescription.

1.  RCW 18.54.070(2) authorizes the Optometry Board to adopt rules to promote safety, protection and the welfare of the public.  This authority empowers the Board to adopt rules setting standards for prescribing practices and defining a contact lens prescription.

2.   Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will not improperly regulate dispensing opticians, for RCW 18.43.060 provides that dispensing opticians may fit contact lenses only upon written prescription of a physician or optometrist.

3.   Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will probably not conflict with applicable Federal Trade Commission Rules.

4.   Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will probably not violate federal antitrust laws because such laws do not apply to anticompetitive restraints imposed by the state as an act of government.

                                                              - - - - - - - - - - - - -

                                                               November 27, 1991

Dean H. Hattan, O.D. Chair
Washington State Board of Optometry
Mail Stop:  EY-21
Olympia, Washington 98504
                                                                                                                 Cite as:  AGO 1991 No. 33

 

Dear Dr. Hattan:

            By letter previously acknowledged, you requested our opinion regarding the authority of the Optometry Board to adopt rules setting standards for prescribing practices and defining a  [[Orig. Op. Page 2]] contact lens prescription.  We paraphrase your question1/

            as follows:

            Is it within the statutory rulemaking authority of the Optometry Board to define a contact lens prescription, and to set standards of prescribing practices for optometrists?

                                                                BRIEF ANSWER

            If the rules adopted promote the safety, protection, and welfare of the public, and carry out the purposes of chapter 18.54 RCW, the answer to your question is yes.  The rationale for this answer is contained in the discussion below.

                                                                BACKGROUND

            The Legislature has developed a statutory system governing health care, including the regulation of optometry and the creation of an Optometry Board.2/

             In construing a given statute, it is appropriate to examine other statutes dealing with the same subject.  Little v. Little, 96 Wn.2d 183, 189, 634 P.2d 498 (1981).  The following is a summary of statutes which pertain to the practice of optometry in Washington.

            The practice of optometry is governed by, among other statutes, chapter 18.53 RCW, known as "The Optometry Law."  RCW 18.53.900.

            The Legislature has declared that the practice of optometry "should be regulated in the public interest and limited to qualified persons licensed and authorized to practice under the provisions of chapters 18.53 and 18.54 RCW."  RCW 18.53.005.

             [[Orig. Op. Page 3]]

            The practice of optometry includes:

                        (b) The prescription and fitting of lenses, prisms, therapeutic or refractivecontact lenses and the adaption or adjustment of frames and lenses used in connection therewith[.]

RCW 18.53.010(b) (emphasis added).

            The power and duty to govern the practice of optometry has been delegated by the Legislature to the Optometry Board in chapter 18.54 RCW, known as the "Optometry Board Act."  RCW 18.54.900.

            The Legislature has declared that the Optometry Board

            [s]hall adopt rules and regulations to promote safety, protection and the welfare of the public, to carry out the purposes of this chapter, to aid the board in the performance of its powers and duties, and to govern the practice of optometry.

RCW 18.54.070(2) (emphasis added).

            In RCW 18.54.076, the Legislature has directed that the Uniform Disciplinary Act, chapter 18.130 RCW, governs unlicensed practice, licensing, and the discipline of licensees under chapters 18.53 and 18.54 RCW.

            The Optometry Board has disciplinary authority over licensees pursuant to chapter 18.130 RCW.  See RCW 18.130.040(2)(b)(vii).  As the disciplining authority, the Optometry Board also has authority to adopt rules3/

            necessary to carry out disciplinary actions as well as to adopt standards of professional conduct or practice.  See RCW 18.130.050(1) and (12).  The Uniform Disciplinary Act also defines a violation of a rule established by any health agency, or violation of an administrative rule regulating a given profession, as unprofessional conduct and, thus, grounds for discipline.  See RCW 18.130.180(7) and (11).

            We also note that opticians have responsibilities relating to contact lenses.  The Legislature has directed that licensed dispensing opticians are exempted from chapter 18.53 RCW.   [[Orig. Op. Page 4]] However, in the same statute, the Legislature has made it clear that dispensing opticians are not permitted to practice optometry.  RCW 18.53.040.

            Dispensing opticians are governed under chapter 18.34 RCW.  A dispensing optician is defined in RCW 18.34.060.

                        A dispensing optician is a person who prepares duplications of, or prepares and dispenses lenses, spectacles, eyeglasses and/or appurtenances thereto to the intended wearers thereof on written prescriptions from physicians or optometrists, and in accordance with such prescriptions, measures, adapts, adjusts and fabricates such lenses, spectacles, eyeglasses and/or appurtenances thereto to the human face for the aid or correction of visual or ocular anomalies of the human eye:  PROVIDED, HOWEVER, That contact lenses may be fitted only upon a written prescription of a physician or optometrist.

(Emphasis added.)

                                                                     ANALYSIS

            Your question is directed at the authority of the Optometry Board to define a contact lens prescription and set standards of prescribing practices for optometrists.

            Administrative agencies are created by the Legislature and only possess those powers conferred expressly or by necessary implication.  Human Rights Comm'n v. Cheney Sch. Dist. No. 30, 97 Wn.2d 118, 125, 641 P.2d 163 (1982).  The Optometry Board has clear rulemaking authority under a statutory scheme in which the Legislature has directed the Optometry Board to promulgate rules "to promote safety, protection and the welfare of the public, to carry out the purposes of this chapter [chapter 18.54 RCW], to aid the board in the performance of its powers and duties, and to govern the practice of optometry."  RCW 18.54.070(2).

            The Legislature has reiterated the Optometry Board's rulemaking authority by giving the Optometry Board disciplinary authority under chapter 18.130 RCW, which regulates discipline of health professions.  See RCW 18.130.050.

            When statutory language is plain and unambiguous, the meaning of the statute must be derived from the wording of the statute.  Human Rights Comm'n v. Cheney Sch. Dist. No. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982).  On their face, the statutes which give the Optometry Board power to create rules, RCW 18.54.070(2) and RCW 18.130.050(1), are plain and unambiguous.  The virtual plenary authority given to the  [[Orig. Op. Page 5]] Optometry Board under applicable statutes makes it clear that the Board has statutory rulemaking authority, if the rules are in the public interest.

            In addition, though not directly on point, there is case law support for the proposition that the Optometry Board has authority to define a contact lens prescription and to set standards of prescribing practices.  Jaramillo v. Morris, 50 Wn. App. 822, 750 P.2d 1301 (1988),rev. denied, 110 Wn.2d 1040 (1988).  InJaramillo, the court of appeals found that the trial court erred by refusing to defer to the definition of "podiatry" adopted by the Washington State Podiatry Board.  Id. at 829, 832.

            Utilizing the doctrine of primary jurisdiction,4/

            the court of appeals found that the Podiatry Board, as an administrative agency with special competence and expertise in the area, and with legislative authority to resolve the issue, should have been deferred to by the trial court.  The Jaramillo court found that the Legislature had enacted a "pervasive regulatory scheme" which directed the Podiatry Board to regulate the practice of podiatry.  Id. at 832.

            The statutory schemes under which podiatry is regulated by the Podiatry Board and optometry is regulated by the Optometry Board are very similar and thus theJaramillo "pervasive regulatory scheme" analysis is instructive.

            Given the remarkable similarity between the "pervasive regulatory scheme" which the Legislature has enacted to govern podiatry5/

            and optometry,6/

            we conclude fromJaramillo that rulemaking regarding issues which are central to a profession, such as the definition of "foot" to podiatry and the definition of a contact lens prescription to optometry, as well as standards of prescribing practices, is properly left to the appropriate governing board.

             [[Orig. Op. Page 6]]

            In our view, this essentially answers your question.  However, we are aware of additional concerns relating to the Board's rulemaking authority.  We direct our remaining discussion to those concerns.  The first is that the rule adopted by the Optometry Board will improperly regulate dispensing opticians.

            RCW 18.34.060 defines dispensing opticians.  An agency cannot change or amend a legislative enactment by promulgating rules.  Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980),adhered to and modified, 95 Wn.2d 962, 633 P.2d 1324 (1981).  Therefore, under the authority of RCW 18.54.070, the Optometry Board may not effectively amend RCW 18.34.060, which defines the permissible scope of practice of dispensing opticians.

            The authority of dispensing opticians to fit contact lenses is limited by a proviso.  RCW 18.34.060 states:  "PROVIDED, HOWEVER, That contact lenses may be fitted only upon a written prescription of a physician or optometrist."  (Emphasis added.)  Thus, a rule which defines a prescription would not appear to improperly regulate opticians.  Rather, such a rule, adopted in the public interest, would merely define what a prescription is in accordance with the Optometry Board's duty to govern the practice of optometry.

            Such a reading of the proviso contained in RCW 18.34.060, if seen as a limitation on the power of opticians to "fit" contact lenses, is consistent with case law regarding the proper construction of statutory provisos.  As a general rule, statutory provisions operate as a limitation on the statute to which they are appended.  See State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974).  See generally Tyler Pipe Indus. Inc. v. Department of Rev., 96 Wn.2d 785, 788, 638 P.2d 1213 (1982).  Here, the proviso contained in RCW 18.34.060 limits the "fitting" of contacts lenses to a prescription of a doctor or optometrist.

            The legislative history of RCW 18.34.060 also indicates that the Legislature intended to restrict discretionary decisions by opticians while "fitting" eyeglasses, including contact lenses.  The dispensing optician statute, RCW 18.34.060, originated as House Bill 260, and did not contain the contact lens proviso.  HB 260, § 6;State of Washington Printed Bills of the Legislature, 35th Session, House, 1-275 (1957).  The proviso was added in the House.  See House Journal, 35th Legislature (1957) at 441.  The proviso amendment added the requirement that contact lenses be fitted only upon a written prescription of a physician or optometrist.  Id.   Thus, the Legislature specifically amended the dispensing optician statute to make the fitting of contact lenses subject to a written prescription.

             [[Orig. Op. Page 7]]

            Consistent with the addition of the limiting proviso, the Legislature made another amendment to section 6 of House Bill 260 to limit the discretion of dispensing opticians.  The original bill read "in accordance with such prescriptions, interprets, measures, adapts, and adjusts such lenses, spectacles . . . ." HB 260, § 6; State of Washington Printed Bills of the Legislature, 35th Session, House, 1-275 (1957) (emphasis added.)  The bill was amended to eliminate the term "interprets" and add the term "fabricates."  Thus, the amended version read "in accordance with such prescriptions, measures, adapts, adjusts and fabricates such lenses, spectacles . . . ."  House Journal, 35th Legislature (1957) at 514.  This amendment was part of the final bill enacted by the Legislature.  Laws of 1957, ch. 43, § 6, p. 162.

            Clearly, the Legislature did not wish dispensing opticians to "interpret" prescriptions, whether for eyeglasses or contact lenses.  The legislative removal of the term "interprets" by dispensing opticians and the addition of the term "fabricates" indicates legislative intent that fitting opticians should not make such discretionary decisions.  Rather, as the statute directs, dispensing opticians are to dispense eyeglasses, including contact lenses, "in accordance with such prescriptions."  RCW 18.34.060.

            Another concern is that federal regulations regarding ophthalmic practice and the advertising of ophthalmic goods and services may preempt state authority to regulate standards of prescribing practices for optometrists and to define a contact lens prescription.7/

             Under authority of the Federal Trade Commission Act, as amended, the Federal Trade Commission has twice promulgated rules regarding ophthalmic practice and the advertising of ophthalmic goods and services.  Eyeglasses I, 43 Fed. Reg. 23,992 (1978) (codified at 16 C.F.R. § 456 (1991)); and Eyeglasses II, 54 Fed. Reg. 10,285 (1989) (codified at 16 C.F.R. § 456 (1991)).

            Eyeglasses I was intended to preempt state laws which prohibit or burden the advertising of prescription eyewear or eye examinations.  The rule also prohibited restrictions on advertising regarding prescription eyewear or eye examinations  [[Orig. Op. Page 8]] imposed by private groups such as trade associations.  The rule also required that consumers be provided with copies of their prescriptions after they had their eyes examined.  Eyeglasses I, Summary, 43 Fed. Reg. 23,992 (1978) (codified at 16 C.F.R. § 456 (1991)).  Eyeglasses I also defined prescription as follows:

                        A "prescription" is the written specifications for ophthalmic lenses which are derived from an eye examination.  The prescription shall contain all of the information necessary to permit the buyer to obtain the necessary ophthalmic goods from the seller of his choice.  In the case of a prescription for contact lenses, the refractionist must include in the prescription only those measurements and directions which would be included in a prescription for spectacle lenses.  All prescriptions shall include all the information specified by state law, if any.

F.T.C. Advertising of Ophthalmic Goods and Services, 16 C.F.R. § 456, et seq. (1978) (emphasis added).

            In 1989, the Federal Trade Commission revised Eyeglasses I, in Ophthalmic Practice Rules, 54 Fed. Reg. 10,285, 10,304 (1989) (Eyeglasses II).  Eyeglasses II barred four types of state restrictions on commercial practice.

            (1) Prohibitions on certain forms of lay association with or control over optometric practices; (2) limitations on the number of branch offices which optometrists may own or operate; (3) prohibitions on the practice of optometry in commercial locations; and (4) prohibitions on the practice of optometry under a nondeceptive trade name.

Eyeglasses II, Summary, 54 Fed. Reg. 10,285 (1989) (codified at 16 C.F.R. § 456 (1991)).  This rule also incorporated, with minor technical changes, the prescription release requirement originally promulgated in Eyeglasses I.  54 Fed. Reg. 10,285 (1989).

            Eyeglasses II also contained a definition of prescription.

                        A "prescription" is the written specifications for lenses for eyeglasses which are derived from an eye examination, including all of the information specified by state law, if any, necessary to obtain lenses for eyeglasses.   [[Orig. Op. Page 9]] Codified at 16 C.F.R. § 456.1(h).8/

            (emphasis added).

            Not all sections of Eyeglasses II were challenged in the California State Bd. of Optometry v. F.T.C., 910 F.2d 243, 979 (D.C. Cir. 1990),reh'g denied per curiam, 924 F.2d 243 (D.C. Cir. 1991).  However, it does appear that the court vacated the entire rule.  Id. at 982.  Thus, if any Federal Trade Commission rule regarding ophthalmic practice currently exists, it would appear to be Eyeglasses I.9/

             Given the definition of prescription that is contained in Eyeglasses I, it does not seem likely that any definition of prescription by a properly authorized state regulatory agency would conflict with Eyeglasses I.  The final sentence of the paragraph defining "prescription" in Eyeglasses I is instructive:  "All prescriptions shall include all the information specified by state law, if any."  16 C.F.R § 456.1 (1978).10/

             [[Orig. Op. Page 10]]

            Thus, it is our conclusion that rules of the Optometry Board setting standards for prescribing practices and defining contact lens prescriptions would probably not conflict with applicable Federal Trade Commission Rules, and thus preemption is not a concern.

            Another concern is the application of federal antitrust laws to the Board's rules.  Any state system for regulating a profession may have some anticompetitive impact.  In our view, the Board's rules are not subject to federal antitrust laws owing to the state action exemption.

            Based on principles of federalism and state sovereignty, in Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943), the United States Supreme Court held that the Sherman Antitrust Act "did not apply to anticompetitive restraints imposed by the States 'as an act of government'."  City of Columbia v. Omni Outdoor Advertising, Inc., 111 S. Ct. 1344, 1349 (1991) (citingParker v. Brown, 63 S. Ct. at 314).

            To qualify for theParker exemption, any state action which results in the restriction of competition must be an authorized implementation of state policy, including authority to regulate and to suppress competition.  Specifically, "clear articulation of a state policy to authorize anti-competitive conduct" is required.  City of Columbia at 1350 (citingTown of Hallie v. City of Eau Claire, 471 U.S. 34, 40, 85 L. Ed. 2d 24, 105 S. Ct. 1713 (1985)).  The authority to suppress competition does not require that the delegating statute "explicitly permits the displacement of competition[.]"  Id. at 1350.  It is sufficient if such suppression of competition is a foreseeable result of the regulations at issue.  Id. at 1350.

             [[Orig. Op. Page 11]]

            This is not a subjective test.  InCity of Columbia, the United States Supreme Court declined to interpret the Sherman Act so as to allow the plaintiff to look behind the actions of state sovereigns into the state's motives in taking the action.  Id. at 1352-53.  TheColumbia court found that if the courts were to apply subjective tests to the intent of public officials, such an inquiry would "require the sort of deconstruction of the governmental process and probing of the official 'intent'" that the court has avoided in antitrust liability cases.  Id. at 1352-53.11/

            Thus, underCity of Columbia, the authority to regulate and suppress competition must be found in the delegating statutes.

            As we pointed out in our discussion of the statutes governing the Optometry Board, the Board has virtual plenary authority to regulate the practice of optometry, including the  [[Orig. Op. Page 12]] promulgation of rules and standards of professional conduct and practice.  See RCW 18.53.005; RCW 18.54.070(1), (2); RCW 18.54.076; and chapter 18.130 RCW.

            These statutes establish a state policy to regulate and it is foreseeable that this regulation will suppress competition.  This is similar to the zoning regulations considered by the court in City of Columbia where the court said:  "The very purpose of zoning regulation is to displace unfettered business freedom in a manner that regularly has the effect of preventing normal acts of competition[.]"  111 S. Ct. at 1350.

            Similarly, in this case, the very purpose of regulating the profession of optometry is to protect the public from practices and practitioners which may be harmful.  The establishment of those standards of professional conduct may preclude, to some degree, individuals from competing in the optometry profession.12/

            Since the state action exemption will likely apply to the Board's rules, we do not foresee a federal antitrust violation.

            In summary, the Legislature has given the Optometry Board virtual plenary authority to govern the practice of optometry, including promulgation of rules in the public interest.  Under that authority, the Board does have authority to define a contact lens prescription and to set standards of prescribing.  Therefore, we answer your questions in the affirmative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH EIKENBERRY
Attorney General

GLENN L. HARVEY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Due to its factual nature, we do not address the validity of the assumption contained in your request that evidence presented in an administrative hearing will lead to the conclusion that defining a contact lens prescription and setting standards of prescribing practices promotes public safety and assists in the governance of optometry.

2/The Washington Supreme Court has also recognized under common law principles that optometry is a learned profession which affects public health and welfare.  See Morelli v. Ehsan, 110 Wn.2d 555, 559, 756 P.2d 129 (1988).

3/The conduct and proceedings of the Optometry Board are governed by the Administrative Procedure Act, chapter 34.05 RCW.  See RCW 18.54.090.

4/Primary jurisdiction is a discretionary doctrine used by a court to determine if it should refrain from exercising jurisdiction over an issue until an administrative agency with special expertise (and with legislative authority) has had an opportunity to resolve the issue.  The court retains power to make the final decision.  Jaramillo at 828.

5/Chapter 18.22 RCW.

6/Chapter 18.54 RCW.

7/Of course, for preemption to be a concern, there must be a conflict between state regulations and federal regulations.  Since the Board has not yet passed rules, the following discussion is based on the assumption that there may be a conflict.

8/The change in the definition of prescription was intended to end confusion created by Eyeglasses I regarding any supposed obligation of optometrists or ophthalmologists to utilize the phrase "ok for contact lenses" on eyeglass prescriptions.  No such obligation exists under the definition of Eyeglasses II.  The change in the definition was also meant to clarify the fact that the prescription release requirement did not affect state laws regulating who is legally permitted to fit contact lenses.  See Eyeglasses II, Section-By-Section Analysis, 54 Fed. Reg. 10,299 (1989).

            Eyeglasses II was vacated by the District of Columbia Circuit Court, which held that the rule exceeded the Federal Trade Commission's statutory authority.  California State Bd. of Optometry v. F.T.C., 910 F.2d 976, 979 (D.C. Cir. 1990),reh'g denied per curiam, 924 F.2d 243 (D.C. Cir. 1991).

            In vacating Eyeglasses II, the D.C. Circuit Court found that the state action doctrine limits the F.T.C.'s rulemaking authority under both the Sherman Antitrust Act and the Federal Trade Commission Act.  Id. at 981-82.  The court held so due to its finding that state regulation of the practice of optometry "is a quintessentially sovereign act."  Id. at 982.

9/In American Optometric Ass'n v. F.T.C., 626 F.2d 896, 898 (D.C. Cir. 1980), Eyeglasses I was remanded for further consideration by the F.T.C.

10/It may be argued that the phrase "the refractionist must include in a prescription only those measurements . . .", from the definition in Eyeglasses I, means that refractionists are precluded from including specific contact lens parameters on a contact lens prescription.  43 Fed. Reg. 24,006 (1978) (codified at 16 C.F.R. § 456.1) (emphasis added).  This reading conflicts with the direction of the definition that all prescriptions shall include all information required by state law.  Also, the Federal Trade Commission has since indicated that the phrase is not preclusive, rather, that the prescription "need only" contain the data on the refractive status of the patient's eyes and any information the state law requires.  Eyeglasses II, Section-By-Section Analysis, 54 Fed. Reg. 10,299 (1989).

11/The Parker state action exemption applies to anticompetitive restraints imposed bya state as an act of government.  When the anticompetitive conduct of private parties is at issue, the state action exemption contains a second prong.  The anticompetitive conduct must be actually supervised by the state.  The Supreme Court has held that this active state supervision prong is not required when the actor is amunicipalityTown of Hallie v. City of Eau Claire, 471 U.S. 34, 46, 85 L. Ed. 2d 24, 105 S. Ct. 1713 (1985).  As to the situation in which the actor is a state agency, whether active state supervision is required has not been squarely addressed by the Supreme Court.  The United States Supreme Court has stated "it is likely that active state supervision would also not be required . . ." when the actor is a state agency.  Hallie, 471 U.S. 34 at 46, n.10.

            As to this active state supervision prong, it must be noted that the Ninth Circuit appears willing to inquire into the intent of members of the Washington State Apprenticeship and Training Council in order to determine whether the council is a state agency and thus whether the state supervision prong of the state action exemption must be met by that council.  Washington State Elec. Contractors Ass'n v. Forrest, 839 F.2d 547 (9th Cir. 1988),vacated & remanded, 109 S. Ct. 38 (1988),remanded, 880 F.2d 247 (9th Cir. 1989),rev'd & remanded per curiam, 930 F.2d 736 (9th Cir. 1991), petition for cert. filed, No. 91-517, Sept. 23, 1991.  This Ninth Circuit holding appears to be in contradiction to the United States Supreme Court's statements inCity of Columbia, supra, in which the Court refused to probe into official intent and motive for purposes of antitrust liability.  City of Columbia at 1352-53.  In any event, the Optometry Board is clearly a state agency.  Chapter 18.54 RCW.

12/The Board has the authority to adopt regulations to promote safety and the welfare of the public.  Since there are no specific regulations before us, we express no opinion about the extent to which a rule defining a contact lens prescription will actually suppress competition.

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