TN Licensing Board Declaratory Order

[Roy R. Ferguson]

Hi All:

On 29 Oct the Tennessee Board of Dispensing Opticians heard a Petition For Declaratory Order. I thought the members of this group might be interested in discussing the particulars. For your information, the Board found the answer to 1,2,and 4 to be NO and 3 to be YES. What are your thoughts?

4. Provide a statement of the facts that led to the filing of this petition.

The Petitioner asserts that large retail optical chains within Tennessee are placing untrained, non-licensed employees into optical sales, supervisory and management positions that are required by Tennessee state law to be filled by licensed opticians. The Petitioner asserts that non-licensed managers have no accountability to the state licensing board and that non-licensed managers are unfamiliar with state optician and licensing laws.

5. Provide a summary of the relief the Petitioner is requesting, including the specific nature of the requested order and the conclusions the Petitioner would like the agency to reach at the conclusion of the declaratory process.

The Petitioner is asking the Board to answer the following questions:

(1) Can a person who is not a licensed optician or an apprentice optician in Tennessee sell or take orders for prescription contact lenses, or perform any of the duties related to dispensing opticians, which include but are not limited to frame and lens selection for glasses, prescription interpretation and entry, pupillary distance and segment measurements, rx neutralization, fitting and adjusting prescription eyewear, and dispensing prescription eyewear, including plano contact lenses?

(2) Can an apprentice optician perform optician duties described in Question 1 above without the direct supervision of the sponsoring optician?

(3) Must store managers, district managers, regional managers, territorial managers, and other supervisors, officers, and managers of optical chains and dispensaries within Tennessee be licensed opticians?

(4) Can optical employees go into the public sector and solicit business for optometrists by means of verbal communication, business cards, and/or vision screenings?

[HarryChiling]

Doc,

The choices made were good ones. I would think No to 1, 2, 4 and Yes to 3 as well. I could see how 3 could be argued that the running of a business could have nothing to do with opticianry, but IMO if the supervisor or higher up does not hold a license then they would try and coerce the employees that do or are aprentices into doing things that may not be in the patients interest. Great topic thanks for bringing it to our attention.

[Johns]

Of course, I agree as well, but what's the Board's next step?

[Jubilee]

Very interesting. I agree that the answers were the "correct" ones.

I imagine there is going to be some legal wrangling in the state of Tennessee as Luxottica, Walmart and many other chains will be crying fowl over this ruling and the additional cost it will place on conducting business in the state.

While I have met some really good managers that came from non optical backgrounds, I believe that all should have to receive their license/certification in a set period of time in order to demonstrate their knowledge of the optics and have adequate understanding of some of the issues that may come up.

I believe this is more important in the store management level than necessarily the regional.

I know at one point LC was "encouraging" and in some cases mandating that all members of management obtain at least ABO certification...

[RT]

Do all TN hospitals require all managers, supervisors, and officers to be doctors or nurses?

[HarryChiling]

Do all TN hospitals require all managers, supervisors, and officers to be doctors or nurses?

That's a good point RT, but often times management will make decisions based on business alone, where as an optician must coinsider the good for the patient. I am kinda split on this one, I can see both sides but at the same time I know that where there is a loop hole the large chains will capitalize on it which is why I would tend to go with YES to #3.

[hcjilson]

Do all TN hospitals require all managers, supervisors, and officers to be doctors or nurses?

They do when they practice medicine! Although it may be a rarity, you can find most competent managers on the selling floor. Would you have us believe they are just window dressing? hj

[AdmiralKnight]

I agree with about 90% of that. Like Harry, I'm a bit torn on managers, especially once you've passed the store level. A good manager will rely on the people under them, including their opticians to give them opinions etc. And I'm a bit iffy on part of number 1 as well. Personally, I have no problem with the idea of 'Frame Stylists' or whatever title you want to give them. With the understanding that the optician has the final say on fit/appropriate for the rx. It doesn't take a degree to tell someone if a frame looks good on them.

[Roy R. Ferguson]

Hi All:

Read #1 very carefully. It appears the Opticianry program in our state may no longer be able to operate the on-campus dispensary or send students out for internships with licensed opticians since they are not registered apprentices.

Roy

[HarryChiling]

Hi All:

Read #1 very carefully. It appears the Opticianry program in our state may no longer be able to operate the on-campus dispensary or send students out for internships with licensed opticians since they are not registered apprentices.

Roy

That's gotta be an exception to the rule. If it isn't then maybe an exception of this nature should be included.

[AdmiralKnight]

Things like that were part of my problem with (1). It groups a LOT of things into a simple yes or no answer. There are a lot of grey areas in there that should be looked at per-case basis.

[HarryChiling]

Things like that were part of my problem with (1). It groups a LOT of things into a simple yes or no answer. There are a lot of grey areas in there that should be looked at per-case basis.

Well then good foresight on that one, it caught me right in the keister as I imagine it would to many. Is the intention to stop those that are not supposed to be dispensing from dispensing, or is it to stop students from learning? I guess I would need a little more background to these question, like what were they meant to address?

[Roy R. Ferguson]

(2) Can an apprentice optician perform optician duties described in Question 1 above without the direct supervision of the sponsoring optician?

In Tennessee a licensed optician may only supervise two apprentices. If the sponsoring optician is sick or on vacation, how do the two apprentices legally perform work activities?

[obxeyeguy]

Must store managers, district managers, regional managers, territorial managers, and other supervisors, officers, and managers of optical chains and dispensaries within Tennessee be licensed opticians?

Seems a little broad here. Does this mean the VP of retail operations at LC has to be licensed? I read into this that a dispensary in an MD owned office, with a practice manager who also supervises the optical shop would need a license.

I like the concept, just seems too broad based.

[AdmiralKnight]

I have no problem with requireing a STORE manager have their license. They're the ones dealing with the day to day OPTICAL problems. When I managed for Lux, my manager, the regional, was not licensed, but he wasn't in charge of optical problems. He delt with problem patients, staff issues etc etc. And whenever there was a patient problem that had to do with optical issues, it was basicly "Handle it, Chris." and I did. That's how it should be. Any further than that, and it's just rediculous. Territorial managers? VP's? WHY? Those positions are purely for business pratices. Yes, it's an optical company, but there are people in places below with the proper backgrounds to deal with the optical aspects.

[HarryChiling]

I have no problem with requireing a STORE manager have their license. They're the ones dealing with the day to day OPTICAL problems. When I managed for Lux, my manager, the regional, was not licensed, but he wasn't in charge of optical problems. He delt with problem patients, staff issues etc etc. And whenever there was a patient problem that had to do with optical issues, it was basicly "Handle it, Chris." and I did. That's how it should be. Any further than that, and it's just rediculous. Territorial managers? VP's? WHY? Those positions are purely for business pratices. Yes, it's an optical company, but there are people in places below with the proper backgrounds to deal with the optical aspects.

I like that, and agree the manager since they have direct contact with patients should have a license, any higher and it does become unnecessary.

[AngryFish]

My thinking is that as long as there is a licensed optician on the clock who is responsible for the dispensing that takes place under their watch, the best interests of the consumer and the intention of the law are both served. I don’t think it is important that the manager or regional manager or any other individual be licensed so long as any dispensing that is done is done under the supervision of a state licensed optician.

[BoardPetitioner]

You had the correct response from the start, but facts omitted by Mr. Ferguson and lack of statutes to refer to, has swayed your opinion from seeing the repercussions of unlicensed upper management with only profits in their mindset. The reasoning behind the statute in question regarding supervisors, reflects your initial responses. Direction is passed down from the top-- available payroll, marketing, frame and lens availability, sales goals, evaluations, pay rates, who gets terminated or promoted, etc. The questions from the petition were submitted because many of our optician laws and regulations were being disregarded and misinterpreted to increase profits to the degree that a patient could be purchasing prescription eyewear from someone with NO license, apprenticeship, or even a weeks worth of optical experience. No matter how high in management an optician is, if he/she is supervised by one with no risk of losing their license, the time WILL come when the optician is put in a situation where he/she either follows ILLEGAL direction or risks promotability, reprimand, and/or termination.

Here is the statute referred to in the third question it is from the Tennessee State Code Annotated, Title 63 Professions of the Healing Arts, Chapter 14 Dispensing Opticians Section 103 Paragraph (d) It is unlawful for any person to practice or offer to practice as a dispensing optician as an employee of any person not engaged primarily in the practice as dispensing optician as a licensee under this chapter, or of any firm or corporation not engaged primarily in the practice of dispensing opticians under the actual and personal supervision of partners, officers, managers or stockholders who possess valid unrevoked licenses as dispensing opticians entitled to practice within this state in accordance with the provisions of this chapter. I believe the statute covers all the possibilities of supervision.

As for Mr. Ferguson's remark about an optician supervising only two apprentices, new rules have been made this year to accomadate an alterenate sponsor optician in case one is off or sick, Mr. Ferguson is aware of this as an attendee of the petition hearing because the chairman of the state board made reference to it when the same question arose during the hearing! He was at the previous board meetings that the rules were proposed in as well. As for the question Mr. Ferguson proposed in regards to student opticians not recieving their intern training, another paragraph (f) in the same section of state code addresses that as well, it reads: It is lawful for any "apprentice dispensing optician" or "student dispensing optician" to perform any of the services or do any of the acts included in the definition of "dispensing optician" contained in this chapter; provided, that such "apprentice dispensing optician" or "student dispensing optician" does so under the direct supervision, direction and control of a dispensing optician, optometrist or ophthalmologist licensed by the state of Tennessee or the equivelent amount of time under the supervision of such licensed professionals of another state that has dispensing opticianry licensure criteria at least as strict as Tennessee and practicing in strict accordance with all of the terms and provisions of this chapter: and provided further, that a licensed optician inspects the finished glasses and fits them to the face of the patient. I believe Mr. Ferguson should be aware of this statute as well since he was a former intructor to optician students!

I am not quite sure of Mr. Ferguson's agenda, but I do know however he was giving both written and verbal advice to the three attorneys opposing the petition! Sorry for the length of response, I just felt that some facts should be brought forth.

[eyesonjohn]

So did the board make any formal actions on your petition.

[BoardPetitioner]

So did the board make any formal actions on your petition.

The board clarified the statutes in question which cover the definition of dispensing opticians, supervision of opticians and apprentices, and solicitation for ODs. Their final order did not change existing laws, but only clarified them in simpler terms for those who would misinterpret or ignore them.

[AngryFish]

The licensed optician is obligated to follow the law and if it is a choice between the law and the company policy the law wins the policy loses. If the law states, for example, that all dispensing must take place under a licensed optician, the business has little to gain by terminating an employee who has the qualifications required by law for the entity to do business for no reason after all, without a licensed optician on site there is no business to conduct. If business is being conducted without a licensed optician then you have a cause of action against the business and therefore a legal remedy.

If as you state many of your laws are being violated by various business entities there is legal remedy to address that in place without having to engage in what would appear to be such a Herculean effort of taking on issues like “definition.”, if you take this logic of everyone all the way to the top must be licensed out to its fruition, you have a board of directors and they are ultimately accountable to who, the share holder.

Opticians are not licensed to prescribe and as such they can be employees of others who are not licensed to or prescribe. The only exception to this that I am aware of is in the case of doctors. Any one who is licensed to prescribe cannot be employed or supervised by someone who is not. And there may be an exception to this, as in the case with optometry in certain states.

State laws vary and I am suggesting that what I have said is very general in nature. I base this response on what I have read in this string. I am still not clear, however, on what your intention is. What is a specific goal of this action? I would love to learn more.

[BoardPetitioner]

By alternate sponsor optician which was provided for in new rules earlier this year as you are well aware. (responding to Roy's apprenticeship question)

[BoardPetitioner]

The licensed optician is obligated to follow the law and if it is a choice between the law and the company policy the law wins the policy loses. If the law states, for example, that all dispensing must take place under a licensed optician, the business has little to gain by terminating an employee who has the qualifications required by law for the entity to do business for no reason after all, without a licensed optician on site there is no business to conduct. If business is being conducted without a licensed optician then you have a cause of action against the business and therefore a legal remedy.

If as you state many of your laws are being violated by various business entities there is legal remedy to address that in place without having to engage in what would appear to be such a Herculean effort of taking on issues like “definition.”, if you take this logic of everyone all the way to the top must be licensed out to its fruition, you have a board of directors and they are ultimately accountable to who, the share holder.

Opticians are not licensed to prescribe and as such they can be employees of others who are not licensed to or prescribe. The only exception to this that I am aware of is in the case of doctors. Any one who is licensed to prescribe cannot be employed or supervised by someone who is not. And there may be an exception to this, as in the case with optometry in certain states.

State laws vary and I am suggesting that what I have said is very general in nature. I base this response on what I have read in this string. I am still not clear, however, on what your intention is. What is a specific goal of this action? I would love to learn more.

To know for myself and all other interested opticians that the laws currently in force mean what they say, not what corporate management far higher up the chain than dispensary level have reworded and directed optical staff to follow. There may be further future action so details are limited.

[BoardPetitioner]

The law also covers stockholders, so all are accountable. The other health related fields in TN have similiar wording in their statutes that prevent someone not licensed in the particular field of practice from superviseing or having financial interest in the licensed practice.

[Roy R. Ferguson]

Hi All:

First, let me say that I have no agenda. The questions from the Declaratory Order were not changed and were posted exactly as the Tennessee Board of Dispensing Opticians received them. I was simply seeking comments from members of OptiBoard.

Second, the ruling on 29 Oct seems to be in conflict with previous Board positions regarding alternate sponsoring opticians. I do not recall this being discussed in the hearing. Perhaps it was and I missed that point. I’m sure the Board will clarify this issue in the future.

Finally, I certainly do not recall “giving both written and verbal advice to the three attorneys opposing the petition.” If anyone has knowledge of my involvement in such activities, please share them with me.

Roy R. Ferguson, PhD