The West Virginia Board of Optometry went beyond its rulemaking authority when it sought to expand optometrists’ scope of practice to include some eyelid procedures and surgeries that they do not have proper training to perform safely.
Ultimately, the West Virginia legislature enacted, and the governor signed in March, a revised version of the state board’s proposed rule. Now physicians are asking a court to stop the scope creep.
The West Virginia State Medical Association and the West Virginia Academy of Eye Physicians & Surgeons, Inc. sued the state optometry board in Kanawha County Circuit Court. The lawsuit asks the court to preliminarily enjoin optometrists from performing these procedures and to ultimately rule that the scope expansion is void.
The Litigation Center of the American Medical Association and State Medical Societies is financially supporting the legal effort. The AMA is fighting scope creep, defending the practice of medicine against scope of practice expansions that threaten patient safety.
How did board exceed authority?
The lawsuit, West Virginia State Medical Association and West Virginia Academy of Eye Physicians & Surgeons Inc. v. West Virginia Board of Optometry, says that the board exceeded its rulemaking authority because it did not, as West Virginia law requires:
- Apply to the state’s Joint Standing Committee on Government Organization—a body that provides findings and recommendations that the legislature is supposed to give “considerable” weight—about the legislative rule that expanded the scope of optometry practice.
- Provide the Joint Standing Committee on Government Organization with a statement that 10 West Virginia residents who are members of the optometry profession supported a legislative rule that would expand the scope of practice.
- Establish or confirm whether eyelid procedures and surgeries are taught at 50% of all accredited optometry schools, as West Virginia law requires.
By not submitting that initial completed application to the Joint Standing Committee on Government Organization, the state’s Performance Evaluation and Research Division of the Office of Legislative Auditor was never able to conduct an analysis and evaluation and provides a report and recommendation to the Joint Standing Committee on Government Organization on whether the scope should be expanded.
In turn, that prevented:
- The research division’s report and recommendation from becoming publicly available.
- The Joint Standing Committee on Government Organization from holding public hearings.
- The West Virginia legislature from having the report and recommendations as it voted on whether to expand the scope of practice.
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
Stay up to date on fight against scope creep
See how the AMA defends against scope of practice expansions that threaten patient safety.
Training matters
Physicians and their patients recognize that expanding scope of practice to nonphysicians who don’t have the proper training can be dangerous for patients.
More than 90% of patients surveyed have said that a physician’s years of education and training are vital to patient care, especially if a complication or medical emergency arises.
And when it comes to optometrists and ophthalmologists, the training differences are stark. Optometrists complete a pre-professional undergraduate education and four years of professional education at a college of optometry to receive their doctor of optometry (OD) degree. Some complete an optional residency in a specific practice area, but there is no mandatory postgraduate training. Ophthalmologists, by contrast, are medical doctors or doctors of osteopathic medicine, who after receiving an undergraduate degree go on to four years of medical school and four years of residency training. Only 40% of ophthalmology residents go on to an additional one- or two-year fellowship in a subspecialty.
And while optometrists spend about one year in clinical rotations, ophthalmologists get more than 12,000–16,000 hours during training. And optometrists’ education and training is focused almost entirely on examining the eye for vision prescription, dispensing corrective lenses and performing some eye screening. They are not trained to perform surgery either with a laser or scalpel. Meanwhile, ophthalmologists are trained to perform surgery, to anticipate and address unexpected medical events or complications during and following surgery and to effectively manage a patient’s medical care.
Arkansas, Colorado, Kentucky, Louisiana, New Mexico, Oklahoma, Tennessee, Virginia and Washington have laws that let optometrists perform surgery and other procedures previously prohibited in their defined scope of practice. California in 2022 passed a bill that would have allowed optometrists to perform advanced eye procedures—including surgery—after completing a 32-hour weekend training, but Gov. Gavin Newsom vetoed the bill saying he was “not convinced that the education and training required is sufficient to prepare optometrists to perform the surgical procedures.”
