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New Law Alert New law expands optometrists' scope of practice
Effective January 1, 2001, Business and Professions (B&P) Code §3041 will greatly expand the scope of practice for optometrists. However, the new law contains numerous requirements for consultation with ophthalmologists, and for referral to ophthalmologists. Legal counsel for MIEC prepared the following analysis of the newly amended B&P Code. |
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B&P Code §3041 [SB 929] allows “certified” optometrists to provide limited, specific therapeutic care, beyond that previously authorized. Scope of practice is limited to specific diagnoses. The new law also specifies the medications which can be utilized for certain diagnoses. Not all patients can be treated by optometrists. Patients under one year cannot be treated with therapeutic medication, and patients with AIDS cannot be treated for ocular infections. Only patients over the age of 18 can be treated for specified conditions. Glaucoma patients also must be over 18, and can be treated only for primary open angle glaucoma. When treating certain conditions, or when utilizing certain pharmaceuticals, there are specific requirements for consultation with an ophthalmologist after a period of time, which may be as short as 24-hours. In most instances, consultation must be followed by referral if the condition has not resolved within a specified time. Referral is also mandated under other circumstances. Under prior law, certified optometrists were permitted to diagnose enumerated conditions, to use specified topical medications, and to use tetracycline for treatment of blepharistis. B&P Code §3041 allows optometrists to prescribe other drugs, and to provide limited additional services. However, the optometrist must first determine that the patient's age and medical condition fall within this expanded scope of practice. If so, the optometrist must utilize only those medications which are allowed for treatment of the specific condition. When using that medication, the optometrist must observe specific requirements for consultation or referral. The law contains specific requirements for interaction with consulting ophthalmologists and, in the case of glaucoma patients with diabetes, with physicians treating the diabetes. Ophthalmologists who co-manage with optometrists should note that optometrists cannot treat inflammation or pain related to surgery.
Amended B&P Code §2544 [also from SB 929], effective January 1, 2001, allows assistants supervised by an ophthalmologist or optometrist to fit prescription contact lenses, and: For a summary of the medical conditions that optometrists can treat and medications they can use under the new law, physicians may contact MIEC's Loss Prevention Department. Physicians can download a copy of the B&P Codes referenced in this section of the newsletter from the California legislative website, www.leginfo.ca.gov. Click on “California Laws,” select “Business and Professions Code,” and select the sections to review. Law to reduce medication-related errors By January 1, 2002, every general acute hospital, special hospital, and surgical clinic must submit a formal plan to the State Department of Health Services for the purpose of eliminating or substantially reducing medication-related errors; the plan must be implemented no later than January 1, 2005. Medication-related errors are defined by a new Health and Safety Code section as, “...any preventable medication-related event that adversely affects a patient in a facility...and that is related to professional practice, or health care products, procedures, and systems, including, but not limited to, prescribing, prescription order communications, product labeling, packaging and nomenclature, compounding, dispensing, distribution, administration, education, monitoring, and use.” Each facility's plan is to include use of technology such as “computerized physician order entry or other technology...that has been shown effective in eliminating or substantially reducing medication-related errors.” [Chapter 2.05 (commencing with §1339.63) added to Division 2 of the Health and Safety Code.] Emergency department on-call coverage issues to be investigated Assembly Bill 2611, approved by Governor Davis on September 28, 2000, requires the Senate Office of Research to conduct a comprehensive study of on-call coverage issues as they affect emergency departments. The bill, when first introduced, would have made it unprofessional conduct for a scheduled on-call physician to refuse to respond and care for a patient. It also would have allowed hospitals to require that physicians must take call as a condition of clinical privileges. Under the amended, final bill, a working group consisting of members from hospitals, hospital organizations, physician organizations, and physician representatives are to examine the magnitude of the “challenges facing California hospital emergency room departments, including those in underserved and rural areas, the scope of the challenges facing other states relative to these issues, and how other states have addressed these complex and challenging issues.” The Senate Office of Research will give its report and recommendations to the Legislature by January 1, 2002. Prescription of Schedule II controlled substances The California Department of Justice customarily issues triplicate prescription blanks in serially numbered groups of no more than 100 forms. A recent amendment to Health and Safety (H&S) Code §11161 allows physicians to request “orally, electronically, or in writing” additional forms (in excess of 100) to write prescriptions of Schedule II controlled substances. Changes to H&S Code §11164 allow a physician or his/her employee to type or handwrite the Schedule II controlled substance triplicate prescription form that must include: (1) the date, name, and address of the person for whom the controlled substance is prescribed; (2) the name, quantity, medication strength, and directions for use; and, (3) the address, category of professional licensure, and DEA number of the physician/ prescriber. Only the prescriber can sign the triplicate form, and the signature must be in ink or indelible pencil. The original form and a duplicate must be delivered to the pharmacist filling the prescription. Health and Safety Code §11164 also authorizes a pharmacist to fill a Schedule II controlled substance prescription that contains an error(s) if the pharmacist “notifies the prescriber of the error or errors and the prescriber approves any correction. The prescriber shall fax or mail a corrected prescription to the pharmacist within seven days of the prescription being dispensed.” Schedule II drugs can be dispensed by physicians to patients only if dispensed directly to the ultimate user, in an amount which does not exceed a 72-hour supply, and only if the patient is not expected to require any additional amount of the drug after 72 hours. A triplicate prescription form must be completed, and the original must be transmitted to the Department of Justice. [H&S Code §11158 (b) and §11164 (f)] Physicians can download a copy of the H&S Codes referenced in this section of the newsletter from the California legislative website, www.leginfo.ca.gov. Click on “California Laws,” select “Health and Safety Code,” and select the sections to review. Licensed midwives disclosure required Recently rewritten B&P Code §2508 requires that a licensed nurse midwife must disclose orally and in writing to a prospective patient all of the following:
The disclosure must be signed by both the patient and the midwife, and a copy must be put in the patient's chart. Physicians protected when advocating for patients On October 10, 2000, the Court of Appeal filed its opinion in Khajavi v. Feather River Anesthesia Medical Group, noteworthy because in it the Court held that Business and Professions Code §2056 (which makes it a violation of public policy to discharge a physician for advocating medically appropriate health care) is to be applied broadly to any person who penalizes or terminates a physician for advocating medically appropriate health care. The Court concluded that the section does not apply only to disputes between physicians and health care payors. In this case, anesthesiologist Dr. Khajavi asserted that a contractual commitment to employ him was breached after he argued with an ophthalmologist's decision to proceed with surgery on a patient Dr. Khajavi believed was not a medically appropriate candidate. The anesthesiologist, who was terminated by the group after the incident, sued the group and the ophthalmologist. The trial court dismissed the lawsuit, ruling that B&P Code §2056 applied only to payment disputes. The Court of Appeal, however, concluded that the code section has a much broader application, and applies to decisions made by medical groups and other designated entities who penalize physicians because they have advocated for medically appropriate care. The language of the statute reveals the intention of the legislature to apply the protections of physicians broadly, without limitation based on the nature of the dispute. The Court went on to explain that discharge of an employee in violation of public policy, as expressed in a statute or constitutional provision, can serve as the basis for a tort action for wrongful discharge. Since the Court found that Feather River's termination of Dr. Khajavi violated B&P §2056, the Court reversed the trial court's dismissal of the physician's wrongful termination action against the anesthesia group. The review of Khajavi v. Feather River Anesthesia Medical Group was provided by David E. Willett, Esq. and Renee Richards, Esq. of Hassard Bonnington, LLP in San Francisco.
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