Legal question re dispensing

[FredH]

Are there any circumstances under which a abo optician can replace a patients unusable glasses without seeing a written prescription by taking them off the broken lenses by lensometer? According to 2541.1 of business professional code in Calif. even an expired rx can be filled if glasses are unusable.

[FredH]

Are there any circumstances under which a abo optician can replace a patients unusable glasses without seeing a written prescription by taking them off the broken lenses by lensometer? According to 2541.1 of business professional code in Calif. even an expired rx can be filled if glasses are unusable.
http://www.optiboard.com/forums/images/misc-az/progress.gif

[rbaker]

First of all, the ABO has nothing to do with the situation. They neither accredit, license, register or have any authority over what eye care providers in the US can or can not do. Secondly, every state has different regulations and you should stay within the scope of those applicable to your job.

That being said, sometimes common sense and logic can trump some of the restrictive regulations that we find in place in a given states regulations. For example, please explain to me why, other than to require an unnecessary procedure, does the spectacle Rx of an asymptomatic thirty year old with no history of ocular problems, expire in a year?

In the case you cite, I wouldn’t hesitate for a second to neutralize the lenses and make a new pair of glasses.

[FredH]

thanks for your reasoned approach to the question . I agree and i didnt hesitate and am now being questioned on it lol

[orangezero]

Since we are on this discussion yet again...

What do people think about this for the state of Illinois?

Title 68, Chapter VII, Part 1320:100

Practice of Optometry
a)...
b)...
c) No ophthalmic lenses, prisms, or contact lenses may be sold or delivered to an individual without a prescription signed by a licensed optometrist or a physician licensed to practice medicine in all of its branches.


Would you still do the same in Illinois? Are there other laws somewhere else that allow this in Illinois? The reason I ask is because I've been told on here before that Illinois is another state that allows spectacles to be made from another pair without a prescription. The above would seem to imply otherwise.

thanks

[shanbaum]

First of all, the ABO has nothing to do with the situation. They neither accredit, license, register or have any authority over what eye care providers in the US can or can not do.



Not exactly true.

Statutes in Alaska, California, Colorado, Nevada, South Carolina and Utah refer explicitly to ABO certification (or, in some cases, "passing the exmaination", which I suppose is a little different) as a prerequisite for licensure or registration; New Hampshire and Rhode Island statutes refer to ABO-approved courses in their requirements for continuing education.

Florida lawmakers seemed to the think that portions of their state exam would be purchased from the ABO (or a "similar national organization").

[shanbaum]

Title 68, Chapter VII, Part 1320:100

c) No ophthalmic lenses, prisms, or contact lenses may be sold or delivered to an individual without a prescription signed by a licensed optometrist or a physician licensed to practice medicine in all of its branches.



Your citation is probably a little out of date. Apparently, and for obvious reasons, Illinois had to amend its statute:

(c) Nothing contained in this Section shall prohibit a person from manufacturing ophthalmic lenses and prisms or the fabrication of contact lenses according to the specifications prescribed by an optometrist or a physician licensed to practice medicine in all of its branches, but shall specifically prohibit the sale or delivery of ophthalmic lenses, prisms, and contact lenses without a prescription signed by an optometrist or a physician licensed to practice medicine in all of its branches.

IL ST CH 225 § 80/4.5

I can't find any cases, nor any administrative rule that carves out an exception to this for lens duplication, but that doesn't mean that there isn't one.

One might argue that a duplicated lens derives its legitimacy from the original prescription. The question might turn on the intent of the Illinois legislature in passing the statute - did they mean this provision to prohibit duplication of lenses, or did they mean it only to limit the prescribing of lenses to optometrists and M.D.'s?

If the administrative agency responsible for enforcing this law has ruled on it, that will probably decide the issue; if not, we won't know the answer until at least one court has ruled on it - which will happen only if someone raises it as an issue in a lawsuit.

[cocoisland58]

If duplicating an Rx from broken glasses is illegal it's news to me. I've done it a few times. It's always best if the patient has a new exam but if they won't a duplication is in order. You can't force them to have an exam. They should also be aware that you are not responsible for the Rx it is simply a duplication. Occasionally I have upped the add and left the distance as is. Of course Michigan is not a licensed state which gives be more freedom to make my patients comfortable.

[chip anderson]

Since when did any "regulartory authority" ever sue or proscute anyone for duplicating glasses anywhere except when an optometrist or board of optometry went in for the specific purpose of entraping thier independent competition?

[Johns]

[/Iquote=cocoisland58;162561] Of course Michigan is not a licensed state which gives be more freedom to make my patients comfortable.[/quote]

Enjoy your freedom. Michigan is a licensed state (as far as optometry goes) and if they catch you making your patients "comfortable" by changing an Rx, you may find your freedom limited.

[orangezero]

Since when did any "regulartory authority" ever sue or proscute anyone for duplicating glasses anywhere except when an optometrist or board of optometry went in for the specific purpose of entraping thier independent competition?

Honestly, you think the optical police are going to step in and enforce these laws? Oh, wait, there aren't optical police in illinois anymore, only those in the industry trying to make sure the laws are enforced. I've never met an optometrist that has "entrapped" a poor old independent optician before.

I was just waiting to get your take on all this, although I probably could written it myself by now :nerd:

Anyways, in Illinois there must be a lot of hard*ssed optometrist "thugs" roaming the streets because even the worst of the shady optical stores I been to won't make a pair of glasses from a lensometry reading (minus a written prescription). Odd how they usually say its illegal and can't do it. Is that just a company line to avoid potential lawsuits to the parent company? Fill me in. I'm confused.

[orangezero]

Your citation is probably a little out of date. Apparently, and for obvious reasons, Illinois had to amend its statute:

(c) Nothing contained in this Section shall prohibit a person from manufacturing ophthalmic lenses and prisms or the fabrication of contact lenses according to the specifications prescribed by an optometrist or a physician licensed to practice medicine in all of its branches, but shall specifically prohibit the sale or delivery of ophthalmic lenses, prisms, and contact lenses without a prescription signed by an optometrist or a physician licensed to practice medicine in all of its branches.

IL ST CH 225 § 80/4.5

I can't find any cases, nor any administrative rule that carves out an exception to this for lens duplication, but that doesn't mean that there isn't one.

One might argue that a duplicated lens derives its legitimacy from the original prescription. The question might turn on the intent of the Illinois legislature in passing the statute - did they mean this provision to prohibit duplication of lenses, or did they mean it only to limit the prescribing of lenses to optometrists and M.D.'s?

If the administrative agency responsible for enforcing this law has ruled on it, that will probably decide the issue; if not, we won't know the answer until at least one court has ruled on it - which will happen only if someone raises it as an issue in a lawsuit.

It seems to me like what you are saying is that its ok as long as you aren't caught in the act, then you'll worry about finding a loophole. Now, I realize you probably don't live in Illinois and this isn't much of your concern. I'm not so sure I'd want to base my business practices off of the old "its ok, the odds are pretty low I'll get in trouble anyway"

Seems there's a lot of shuffling going on here. I'm not sure how you get legitimacy from an old pair of lenses. The rub in this for me is that generally these people seem to be doing it to avoid eye examinations (similarly to online contact lens sales). Its not because they just had an exam 3mo ago and can't find their written prescription. And besides, any respectable doctor (and most who aren't) would duplicate a prescription that a patient lost.

I personally think duplicating a lens borders on cheapening what optometrists, ophthalmologists, and opticians do. It sends a bad message to the patient that negates all the work you and I do educating patients about different aspects of eye care and optical products. I don't think its all about someone having more money and being able to pass restrictive laws just to screw over another profession.

Anyway, the reason I got into this thread was not to prove a point or anything, but rather to make sure I'm telling the truth to my patients. Anybody else want to try to change my mind based on actual law or sections of legal junk?

[orangezero]

If duplicating an Rx from broken glasses is illegal it's news to me. I've done it a few times. It's always best if the patient has a new exam but if they won't a duplication is in order. You can't force them to have an exam. They should also be aware that you are not responsible for the Rx it is simply a duplication. Occasionally I have upped the add and left the distance as is. Of course Michigan is not a licensed state which gives be more freedom to make my patients comfortable.

We are discussing this on another thread and I'm sure its been discussed to death elsewhere. Here is what bothers me. Is it really "simply a duplication" if you have "upped the add?" Do you really care, since "you are not responsible for the Rx?" Who is? The prescribing doctor? Are you covered under his/her malpractice insurance if something should go wrong? Some things to think about.

I think you are playing with fire on this one. In my opinion the risk (although small) isn't worth the reward. You only have to have one patient in your life that has a serious undiagnosed eye disease to ruin it for you. I've personally seen how grossly inadequate most patients are at diagnosing their own vision and eye problems. I'd hate to rely on them to assume things are ok and a simple duplication is all that is necessary.

[FredH]

Thank you Orange. I agree that upping or changing any Rx from glasses is the equivalent of "prescribing" and should not be done by anyone but OD or Md, however is neutralizing lenses and duplicating the indicated RX from those lenses wrong, in your opinion, if the following were true as observed byt this licensed spectacle dispenser:

A the patient had no observable occular abnormalities
B was asymptomatic
c was not diabetic or other history of concerns related by him
d prescriber was in mexico and practice name not remembered by him
e patient claimed he could not afford exam and specs
f current specs were rimless and dangerously chipped and cracked
g tint and coatings wer smeared
h patient claims to have been examined 6mos prior, rx probably valid still
i patient had no copies of rx
j patient was informed he should have new exam as soon as possible
k new glasses were fitted and vision screening done prior to dispensing
l no means of notifying prescribing OD of dispensed glasses
m single vision lenses for driving and general use

I am interested in your thoughts and comments, thanks

[FredH]

legal or not?
Thank you Orange. I agree that upping or changing any Rx from glasses is the equivalent of "prescribing" and should not be done by anyone but OD or Md, however is neutralizing lenses and duplicating the indicated RX from those lenses wrong, in your opinion, if the following were true as observed byt this licensed spectacle dispenser:

A the patient had no observable occular abnormalities
B was asymptomatic
c was not diabetic or other history of concerns related by him
d prescriber was in mexico and practice name not remembered by him
e patient claimed he could not afford exam and specs
f current specs were rimless and dangerously chipped and cracked
g tint and coatings wer smeared
h patient claims to have been examined 6mos prior, rx probably valid still
i patient had no copies of rx
j patient was informed he should have new exam as soon as possible
k new glasses were fitted and vision screening done prior to dispensing
l no means of notifying prescribing OD of dispensed glasses
m single vision lenses for driving and general use

I am interested in your thoughts and comments, thanks
Keep in mind the cross border difficulties with Mexico and UShttp://www.optiboard.com/forums/images/misc-az/progress.gif

[fjpod]

Since when did any "regulartory authority" ever sue or proscute anyone for duplicating glasses anywhere except when an optometrist or board of optometry went in for the specific purpose of entraping thier independent competition?

Ho-hum...yawn...

[HarryChiling]

Very interesting question, I find it funny that in the information age you can google almost any subject and come up with a list of resources that could give you information on many subjects even some of the more advanced optical theorys, but to find out what an optician can or cannot do in each state is not something that has been compiled into a comprehensive resource yet.

It is legal in some states and not in others. How to find that info I can't even tell you.

I can tell you my opinion, I think neutralizing a Rx is part of our job after all you are not prescribing lenses but reordering what has already been prescribed before. Doesn't amount to a hill of beans if it's not legal in your state though.

I would suggest contacting the OAA, they should be able to get you this information or at least point you in the right direction.

[shanbaum]

It seems to me like what you are saying is that its ok as long as you aren't caught in the act, then you'll worry about finding a loophole. Now, I realize you probably don't live in Illinois and this isn't much of your concern. I'm not so sure I'd want to base my business practices off of the old "its ok, the odds are pretty low I'll get in trouble anyway"



That wasn't what I intended to suggest at all. My point was, from all the information I can gather without too much effort, the law isn't clear. An AG's opinion letter would clarify it (though only tentatively); ultimately, the only way we could say for sure what that statute means would be for the Illinois Supreme Court to rule on a case that turned on the issue. That's only going to happen if there's a suit that turns on the issue, which might be brought by the optometry board, or some other board with jurisdiction - I don't know what the regulatory environment is in Illinois. Or, a board might order someone to stop duplicating lenses, and that person might bring a suit against the board.

While the section you cited appears to me to lean in the direction of prohibiting duplication, there are plenty of examples of statutes like that being interpreted differently than one would expect (in other contexts).

Whether allowing duplication is a good or bad idea is a different question in any case. My opinion on that is that the answer isn't obvious.

[CME4SPECS]

In the state of Cailfornia, we are not allowed to neutralize lenses. (2556)
No exceptions are written into our laws. You may fill an expired prescription as descrisbed by the following law. (2541.E)
(e) An expired prescription may be filled if all of the following
conditions exist:
(1) The patient's spectacles are lost, broken, or damaged to a
degree that renders them unusable.
(2) Upon dispensing a prescription pursuant to this subdivision,
the person dispensing shall recommend that the patient return to the
optometrist or physician and surgeon who issued the prescription for
an eye examination and provide the prescriber with a written
notification of the prescription that was filled.

[FredH]

I read 2541.1 e but i obviously missed 2556 ,your right. EVER KNOWN THIS TO BE ENFORCED OR QUESTIONS ARISING WITH THE BOARD?

[FredH]

To my dismay, Someone has pointed out that in California med bd code of business and prof ethics parag. 2556 duplicating lenses is prohibited.
I missed that. Even so, taking the whole code in context still leaves some grey areas i think. However that line is enough to hang someone if they want.

[CME4SPECS]

I read 2541.1 e but i obviously missed 2556 ,your right. EVER KNOWN THIS TO BE ENFORCED OR QUESTIONS ARISING WITH THE BOARD?

I would surely not want to be the one to test it. If you do not have a prescription in your hands, or a verbal from the prescriber, you are out of luck and so is the patient. Not fair, but it's the law. I do know of an optician that was fined for neutralizing, some years ago.

[remuspwr]

The fact of the matter is, neutralizing or not, it all comes down to the standard of care. If you do so without knowing patient history or any other issue the patient has, then you are held liable because of that fact. EVEN if you know some of the patient history and then they get diagnoised with something like ARMD or glaucoma, then you would be held resposible for NOT referring them for an exam. We all are ECPs, which means there is some level of competence, like "common knowledege" of yearly eye exams. Bottom line is, you should've known better. Its always better to cover you behind and lose out on one sale, then to lose your livelihood.

[Barry Santini]

Ya know, if all this *medical* stuff about dispensing *eyewear* were really important...

then we would have a concensus not to allow internet Rx eyewear delivery, and eliminate OTC "magnifiers/readers"...

And I do not know what all the hubbub is about neutralizing/duplicating eyewear...

Eyewear is not eye-screening/examining, and should not be confused as such. When a "patient" is told to use different areas of a progressive to see different ranges clearly....and they don't...

...is the *patient* prescribing, or *mis*-prescribing...? ..or is the dispenser? Are they using the *wrong* RX? (heavens!) And if they tilt their head back when driving in a heavy rainstorm? Rxs are neither exact nor a science! They are a *sweet-spot*...a range of acceptably-sharp acuities.

And even if we obtain a concensus that eyewear is medical in nature...doesn't it follow that *filling/selling* your own "Rxs" is as much a conflict of interest as a physician owning/referring to his/her own pharmacy?

I just can't see this question...logically...any other way.

For me, eyewear is NOT medical...only an eye examination is...

By making eyewear not medical in nature, all medical conflicts of interest evaporate, and the market will expand for eyewear purchases.

The purchasing frequency of the eyewear market today is a prisoner of:

1. the annual/biannual eye exam
2. Medical/vision insurance
3. The need to improve an office's "capture-ratio"

I think we, as an industry, really need to channel all our efforts to have people *want* eyewear. Today it is just the opposite.

Doubt it? Ask anyone the following question: If you didn't *need* eyewear...would you buy it?

The current answer is *quite* telling...

Anyway...more than my 2 cents...


Barry

[FVCCHRIS]

I have to agree with Barry on this. It's always interesting to hear that something we've been doing for 25 years is "illegal". Since I have always been employed by an O.D., who sees nothing wrong with us duplicating an Rx occassionally when needed, I have to wonder what his liability is in regards to "standard of care" when we duplicate a pr? Those rare duplications always involve the signing of a waiver explaining "the importance of current eye health evaluations by a Dr.", and I can even say that they have sometimes involved our own patients! Chris..

[CME4SPECS]

I have to agree with Barry on this. It's always interesting to hear that something we've been doing for 25 years is "illegal". Since I have always been employed by an O.D., who sees nothing wrong with us duplicating an Rx occassionally when needed, I have to wonder what his liability is in regards to "standard of care" when we duplicate a pr? Those rare duplications always involve the signing of a waiver explaining "the importance of current eye health evaluations by a Dr.", and I can even say that they have sometimes involved our own patients! Chris..

I think that not being able to neutralize lenses as a dispensing optician in the state of Ca, is one of the dumbest laws that we have. The fact that we can't hire ODs is another one that is really stupid.

[CME4SPECS]

To my dismay, Someone has pointed out that in California med bd code of business and prof ethics parag. 2556 duplicating lenses is prohibited.
I missed that. Even so, taking the whole code in context still leaves some grey areas i think. However that line is enough to hang someone if they want.

I don't see anything gray about "you can't duplicate or change lenses without a prescription"
Did I miss something?

[Alan W]

You don't know me, you lucky guy, but I wanted to thank you for your comments, Excellent logic.
Your comments, as far as I'm concerned, create the essence of the message an optician should be telling the public. And, I mean that using the media, TV, internet, etc. I would love to ask Steve the feasibility of a video library of public information that the consunmer could go to. I mean a video server. There's a lot of stuff available that would inform the public, without us having to perform "e-interventions" but not much in terms of announcing it. Lastly, the subject of helping the cutomer "want" to buy glasses (paraphrased).

Here again, even more reason for each of us to kick in a couple bucks to produce public service "stuff" that will convey exactly that message.

Thanks again.

Alan W

[Barry Santini]

I intend my new mission will be to *provoke* industry people into seeing eyewear this way...where want replaces need.

Thanks

Barry

[Johns]

I've got to throw my hat in with Barry.

:cheers:

[Fezz]

I smell a "Tipping Point" coming. Great thinking Barry!

[Jo]

If this thread flows a bit oddly, I merged two duplicate threads together. Sorry if it makes the conversation flow off a bit.

[FredH]

WELL THE QUESTION IS MUTE FOR ME NOW! i WAS TERMINATED. pERHAPS THE COMPANY WAS RIGHT BUT MY INTENTION WAS TO CARE FOR THE PATIENT AND NOT TO DO HARM. AS THE SAYING GOES," ..... SOMETHING ABOUT THE BEST OF INTENTIONS"

ANYWAY i'M LOOKING FOR A NEW POSITION EITHER HERE IN NORTHERN CA. OR BACK IN NORTHEAST PENNSYLVANIA.:cheers: :finger: :cry:

[GOS_Queen]

Sorry to hear about your employment status.

Here's to wishing you speedy, gainful employment :cheers: