Within the vision space there has been some question regarding the authority of Texas Optometry Board (“TOB”) over retailers of ophthalmic goods and optometrists that are in business with or employed by a physician licensed by the Texas Medical Board. On March 30, 2020, the Texas Attorney General published an opinion that may impact retailers of ophthalmic goods and optometrists that are in business with or employed by a physician licensed by the Texas Medical Board (“TMB”). Ophthalmology practices should review the opinion to determine whether changes to their business relationships with optometrists are necessary.

The party requesting the Attorney General opinion asked whether section 351.005 of the Texas Occupations Code (the “Act”) prevented the TOB from seeking an injunction and a civil penalty against a “retailer of ophthalmic goods providing business services and sharing employees with an optometric office staffed by optometrists employed by a physician where the physician leases space from the unlicensed retailer.” Tex. A.G. Op. No. KP-0297, p. 2. In short, the requestor asked whether Section 351.005 excepted those individuals licensed by the TOB (“Licensees”) also in business with or employed by a physician from the Act and the TOB’s regulations.

Section 351.005 of the Act limits the TOB’s authority in relation to Licensees’ relationships with physicians. Section 351.005 provides that chapter 351 does not prevent or interfere with the right of a physician licensed by the TMB to:

(A) treat or prescribe for a patient; or

(B) direct or instruct a person under the physician’s control, supervision, or direction to aid or attend to the needs of a patient according to the physician’s specific direction, instruction, or prescription.

While the Attorney General would not address whether the TOB could or should discipline an optometric retailer or optometrist for the fact scenario presented, it did speak to the broader legal question regarding the reach of Section 351.005. The Attorney General concluded that “a court would likely conclude that [Section 351.005] is not an exception from the Act in its entirety for any and all acts taken by those under the direction or instruction of a licensed physician just because they are conducted at the physician’s direction. Subsection 351.005(a)(2)(B) operates as a shield when the physician’s direction and instruction of the optometrist is to aid and attend to the needs of a patient as specifically directed, instructed, or prescribed by the physician.” Tex. A.G. Op. No. KP-0297, p. 5 (emphasis added).

Accordingly, ophthalmology practices, optometrists, and retailers of optometric goods in Texas should closely review arrangements between and/or among these groups.