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Bob Ferguson

AGO 2016 No. 4 - Apr 18 2016
Attorney General Bob Ferguson

OPTOMETRISTS/OPHTHALMOLOGISTS—SURGERY—Use Of Corneal Burr By Optometrist

The scope of practice for optometrists excludes ophthalmic surgery. If the use of a corneal burr involves the removal or penetration of human tissue to treat disease or enhance appearance, then it would constitute ophthalmic surgery and would therefore fall outside the scope of practice for optometrists.

April 18, 2016

The Honorable Eileen Cody
State Representative, District 34
PO Box 40600
Olympia, WA   98504-0600

 

Cite As:
AGO 2016 No. 4

Dear Representative Cody:

            By letter previously acknowledged, you have requested our opinion on a question we have paraphrased as follows:

Under RCW 18.53.010(8), is the use by an optometrist of a “corneal burr” outside the scope of practice of optometry and therefore prohibited?

BRIEF ANSWER

            The answer to your question depends on how the corneal burr is used. We recognize that a corneal burr, by its design, could remove or penetrate eye tissue to treat disease or enhance cosmetic appearance. Such a use would be outside the scope of practice of optometry because it would be considered ophthalmic surgery. But there appears to be a factual dispute as to whether every use of a corneal burr removes or penetrates eye tissue, and Attorney General Opinions cannot resolve such factual disputes. Because we cannot, as a legal matter, categorically conclude that every use of a corneal burr removes or penetrates eye tissue, it is possible that some uses of a corneal burr by optometrists could fall within the scope of practice of optometry.

ANALYSIS

            Your question asks us to interpret RCW 18.53.010(8) to determine whether optometrists may permissibly use corneal burrs. The federal Food and Drug Administration defines a corneal burr as “an AC-powered or battery powered device that is a motor and drilling tool intended to

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remove rust rings from the cornea of the eye.” 21 C.F.R. § 886.4070(a); see also 21 C.F.R. § 886.4350(a) (noting the existence of a “manual corneal burr”).

            In interpreting statutes, we begin with the statute’s language. “If a statute’s meaning is plain on its face, we must give effect to that plain meaning as an expression of legislative intent.” Broughton Lumber Co. v. BNSF Ry. Co., 174 Wn.2d 619, 627, 278 P.3d 173 (2012) (internal quotation marks omitted). When the legislature defines a term within a statute, that definition generally controls unless it would lead to an absurd result. American Legion Post 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). “In the absence of a legislative definition, courts may resort to the applicable dictionary definition to determine a word’s plain and ordinary meaning unless a contrary intent within the statute appears.” Id. At all times, our primary goal is to “give effect to the intent and purpose of the legislature in creating the statute.” American Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004).

            The practice of optometry in Washington is a profession that is “regulated in the public interest” and “limited to qualified persons licensed and authorized to practice” under statutes enacted by the legislature in RCW 18.53 and RCW 18.54. RCW 18.53.005. The scope of practice for optometrists is governed by RCW 18.53.010, defining the practice of optometry as “the examination of the human eye, the examination and ascertaining any defects of the human vision system and the analysis of the process of vision.” RCW 18.53.010(1).

            The statutory section at issue in your question further narrows optometrists’ scope of practice by prohibiting optometrists from performing ophthalmic surgery:

            Nothing in this chapter may be construed to authorize optometrists to perform ophthalmic surgery. Ophthalmic surgery is defined as any invasive procedure in which human tissue is cut, ablated, or otherwise penetrated by incision, injection, laser, ultrasound, or other means, in order to: Treat human eye diseases; alter or correct refractive error; or alter or enhance cosmetic appearance. Nothing in this chapter limits an optometrist’s ability to use diagnostic instruments utilizing laser or ultrasound technology. Ophthalmic surgery, as defined in this subsection, does not include removal of superficial ocular foreign bodies, epilation of misaligned eyelashes, placement of punctual or lacrimal plugs, diagnostic dilation and irrigation of the lacrimal system, orthokeratology, prescription and fitting of contact lenses with the purpose of altering refractive error, or other similar procedures within the scope of practice of optometry.

RCW 18.53.010(8). The statute itself defines ophthalmic surgery to be an “invasive procedure.” The statute further qualifies the phrase “invasive procedure” by requiring that it consist of two parts. First, the procedure must cut, ablate, or otherwise penetrate human tissue. Second, such cutting, ablating, or penetrating must be performed in order to “[t]reat human eye diseases; alter or correct refractive error; or alter or enhance cosmetic appearance.”

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            The statute then expressly exempts some procedures from constituting ophthalmic surgery: “Ophthalmic surgery, as defined in this subsection, does not include removal of superficial ocular foreign bodies . . . or other similar procedures within the scope of practice of optometry.” RCW 18.53.010(8) (emphasis added). That is, the removal of superficial ocular foreign bodies (foreign objects on the surface of the eye) is a procedure that optometrists may lawfully perform, as long as that procedure does not involve the invasive cutting, ablation, or penetration of human tissue. Your question requires applying both the definition of “ophthalmic surgery” and the statutory exemption from it, and then evaluating whether use of a corneal burr falls under that definition or is exempted.

            To better understand the statutory definition of the scope of practice, we turn to the dictionary definitions of key terms in the statute to ascertain their plain meaning. Invasive means “tending to invade healthy tissue.” Webster’s Third New International Dictionary of the English Language 1188 (2002). In turn, the most relevant definition of invade is “to push into” or “enter intrusively.” Id. Ablate means “to carry away” or to “remove by cutting.” Id. at 4. From this source and the statute’s “cut, ablated, or otherwise penetrated” language, we determine that inherent in the concept of ophthalmic surgery is that a given procedure enters into or removes a portion of the tissue of the eye. Therefore, a key question in determining whether a given procedure constitutes ophthalmic surgery is whether its execution does, in fact, enter or remove eye tissue.

            RCW 18.53.010(8) also requires that, to be considered ophthalmic surgery, an invasive procedure must be performed “in order to[] [t]reat human eye diseases; alter or correct refractive error; or alter or enhance cosmetic appearance.” Our admittedly limited understanding is that corneal burrs are typically used to remove “rust rings” from the eye, which could potentially be seen as “treating disease” or attempting to “enhance cosmetic appearance,” so we further consider those two phrases.

The word “disease” is not defined in the statute. The dictionary definition most applicable to your question defines disease as

an impairment of the normal state of the living animal or plant body or of any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors (as malnutrition, industrial hazards, or climate), to specific infective agents (as worms, bacteria, or viruses), to inherent defects of the organism (as various genetic anomalies), or to combinations of these factors[.]

Webster’s Third New International Dictionary of the English Language 648 (2002).

Meanwhile, the phrase “enhance cosmetic appearance” is also undefined in the statute, so we turn again to dictionary definitions. Enhance is synonymous with “advance, augment, elevate, heighten, increase,” as well as with “beautify.” Id. at 753. Cosmetic is an adjective “relating to or making for beauty.” Id. at 514. And appearance is “the state or form in which one

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appears : aspect, look, mien.” Webster’s at 103. From these definitions, we determine that “enhance cosmetic appearance,” in context of the statute, simply means to increase the patient’s perception of the physical appearance of his or her eye.

            Having interpreted these key terms in the statute, we turn to your question of whether an optometrist’s use of a corneal burr constitutes ophthalmic surgery and is therefore prohibited under RCW 18.53.010(8). The challenge in answering your question is that RCW 18.53.010(8) speaks in terms of procedures, but is silent about the tools used to perform those procedures. Theoretically, a number of tools could be used to remove superficial ocular foreign bodies; as long as the particular tool used did not also cut, ablate, or otherwise penetrate human tissue, the statute’s plain language would permit its use by optometrists. The foregoing analysis makes clear that the answer to your question hinges on whether a corneal burr penetrates or removes human tissue in a particular instance for the purpose of treating disease or enhancing cosmetic appearance. Your letter suggests that a corneal burr necessarily ablates human tissue with every use, but that is a factual issue as to which there is at least some disagreement, and we cannot resolve factual issues in opinions. We have consulted several sources in trade literature and federal regulations and received correspondence from interested constituencies, all of which provide conflicting answers as to the circumstances under which a corneal burr may or may not remove human tissue. Because the resolution of this critical question of fact is uncertain, we can only address how RCW 18.53.010(8) applies under both scenarios: where a corneal burr either does or does not remove human tissue.

            First, we recognize that many sources indicate that the normal operation of a corneal burr involves the removal of human tissue (typically from the epithelium of the eye). This use would fall under the definition of ophthalmic surgery above and be prohibited if done for the purpose of treating disease or enhancing cosmetic appearance. For instance, the federal Food and Drug Administration regulations governing medical devices define a “manual ophthalmic surgical instrument” as a “nonpowered, handheld device intended to aid or perform ophthalmic surgical procedures. This generic type of device includes the manual corneal burr . . . .” 21 C.F.R. § 886.4350(a). Further, an article in an online trade website notes that an Alger brush (which we understand to be similar in function to a corneal burr) may be used to remove foreign bodies from the cornea. The site instructs that the Alger brush should be used “in a sweeping or circular manner to remove rust-stained tissue and debris. Also remove any large pieces of loose epithelium to create a smoother, quicker healing defect.” Optometric Management, John Smay, Tools of the Trade: A Review (Apr. 1, 2002) (emphases added), http://www.optometricmanagement.com/articleviewer.aspx?articleid=70418 (last visited Apr. 14, 2016). One commentator on a personal injury case described facts involving an ophthalmologist’s use of a corneal burr or drill to remove a rust ring on the plaintiff’s cornea. The commentator noted that such a “drill is designed to scrape away rust ring and necrotic tissue from the cornea and promote the regeneration of healthy corneal tissue.” William Jordan, $800,000 Verdict in Suit Alleging Negligent Eye Treatment, 24 No. 5 Verdicts, Settlements & Tactics art. 20, at 1 (2004) (emphases added). If these sources are correct and the normal use of a corneal burr to remove a foreign object also removes tissue from the eye, such use by

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optometrists would be prohibited under RCW 18.53.010(8) if done for the purpose of treating disease or enhancing cosmetic appearance.

            On the other hand, some sources suggest that the use of a corneal burr is not categorical proof that the user is involved in ophthalmic surgery. For example, an interested party who commented in response to your request tells us that a corneal burr has been used by optometrists for years merely to remove superficial foreign material from the eye without necessarily removing tissue. Letter from John C. Guadnola, General Counsel, Optometric Physicians of Washington, to Bob Ferguson, Attorney General, State of Washington (May 19, 2015) (on file with our office). The same Food and Drug Administration regulations cited above define a “powered corneal burr” as an “AC-powered or battery-powered device that is a motor and drilling tool intended to remove rust rings from the cornea of the eye.” 21 C.F.R. § 886.4070(a). Unlike its counterpart, 21 C.F.R. § 886.4350 says nothing to indicate that a powered corneal burr is “intended to aid or perform ophthalmic surgical procedures.” When a rulemaking body includes particular language in one section of a regulation but omits it in another section of the same regulation, we presume that the exclusion was intentional. See Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983); Cobra Roofing Serv., Inc. v. Dep’t of Labor & Indus., 122 Wn. App. 402, 409, 97 P.3d 17 (2004) (“We interpret agency regulations as if they were statutes.”). Under RCW 18.53.010, if a corneal burr merely removes foreign bodies from the surface of the eye, but does not remove human tissue in the process, then its use would not constitute ophthalmic surgery and would, therefore, fall within the scope of practice of optometry.

            We must also address the second prong of the definition of ophthalmic surgery: whether cutting, ablating, or penetrating is used in order to treat human eye diseases or to enhance cosmetic appearance. Unfortunately, here again, whether use of a corneal burr qualifies as treating disease or enhancing cosmetic appearance in a particular instance would depend on facts we cannot categorically ascertain. For example, if, as some commenters have suggested, corneal burrs are often used to remove superficial ocular foreign objects from the eye, it is not obvious that such use would always qualify as either treating a “disease” or enhancing cosmetic appearance, although it certainly might in a particular case. As to whether such an object would count as a “disease,” it could be argued that an object on the surface of the eye is an “impairment of the normal state” of that “component[]” of the body, or that the eye’s response to a foreign object on its surface is a response to an “environmental factor[]” or “specific infective agent[.]” Webster’s Third New International Dictionary of the English Language 648 (2002). On the other hand, in a particular situation a foreign object on the surface of the eye may more properly be considered a minor injury, rather than a disease.[1] Similarly, while a person might seek to have a superficial ocular foreign object removed from the eye for cosmetic reasons, it is possible to imagine a variety of other motives. In short, given the factual dispute about how corneal burrs

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are used, it is impossible to say that they would always be used either to treat disease or to enhance cosmetic appearance.

            In light of the factual issues that we cannot resolve here, we cannot categorically say that the use of a corneal burr is automatically outside the scope of practice of optometry. If the burr’s use removes or penetrates eye tissue in order to treat eye disease or enhance cosmetic appearance, then its use would fall outside the scope of practice. But we cannot rule out the possibility that an optometrist could be using a corneal burr for other reasons or in other ways, in which case it would not be outside the scope of practice. We respectfully suggest that, given the disparity among the factual sources, the policy question of how far the scope of practice of optometry should extend would “benefit from legislative consideration and fact finding.” See York v. Wahkiakum Sch. Dist. 200, 163 Wn.2d 297, 342, 178 P.3d 995 (2008) (J.M. Johnson, J., concurring) (noting the role of legislative fact-finding in policy development). The legislature may be better suited, through its evaluation of policy considerations and underlying facts, to make determinations regarding the scope of practice that cannot be conclusively resolved through legal analysis alone. See State v. Wilson, 11 Wn. App. 916, 919, 528 P.2d 279 (1974) (“the scope of practice of persons engaged in the various healing sciences is exclusively a matter of legislative concern”); see also AGO 2010 No. 2, at 6 (cautioning, with regard to the scope of practice of a different profession, that fact-based “line-drawing in the guise of statutory construction” may be less suitable than legislative consideration).

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

 

STEPHEN T. FAIRCHILD
Assistant Attorney General

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[1] See, e.g., WebMD, Eye Injuries – Topic Overview, http://www.webmd.com/eye-health/tc/eye-injuries-topic-overview (last visited Apr. 14, 2016) (“It’s common for a speck of dirt to get blown into your eye, for soap to wash into your eye, or for you to accidentally bump your eye. For these types of minor eye injuries, home treatment is usually all that is needed.”).