| Greensheet – May 2000
- Table of Contents -
It's May, and we're already looking at the finishing out of another year. I am pleased to report that the ARBO continuing education classification program, COPE, continues to grow as it provides more and better services to our member boards and CE providers. At its meeting last fall, the COPE Committee, lead by New Jersey's Barry Schneider, O.D., made several enhancements to the program, specifically seeking to enhance COPE's TQ requirements, and changing the nomenclature for this form of education to "Continuing Education with Examination" or "CEE". We think this change will help the optometric community to better understand the nature of this form of education. Watch for these changes in the coming months. At the March Board meeting, the Board voted unanimously to adopt a new ARBO-ASCO Agreement on the use of COPE by the schools and colleges of optometry. We look forward to continuing the cooperative and amicable relationship we have developed with ASCO. In the coming months, the COPE Committee will be investigating the potential for submitting COPE courses via the Internet to improve ease and efficiency for all users. ARBO continues on a solid foundation in its relationship with the National Board of Examiners in Optometry (NBEO). Several years ago both organizations saw the value in having ARBO members oversee the NBEO examinations content outline and the ARBO National Board Examination Review Committee was created. Under "K" Monson, O.D. (Utah) this year's Committee did an exemplary job at the NBEO Examination Councils meeting, providing much valuable feedback and many good suggestions for ARBO to pass on to the National Board. Through input from ARBO, and others, the new National Board Patient Assessment and Management (PAM) examination has now been added to Part III. PAM combines the best of the Visual Recognition and Interpretation of Clinical Signs (VRICS) and the former Patient Management Problems (PMP) examinations, and is anticipated to be well received by state boards and candidates alike. As with ASCO, we are also looking forward to renewing our contract with the National Board. This winter marks the end of our current contract, and the ARBO Board has notified NBEO that it recommends entering into a new five-year agreement modeled closely on the existing one. Last June the American Optometric Association (AOA) passed a resolution to form the American Board of Optometric Practice (ABOP). In mid-March, AOA isseminated details of its Board Certification program all AOA members. ABOP's Board certification program has changed significantly since its inception, but the ARBO Board of Directors still does not support it, nor does our legal counsel. The ARBO Board has communicated its concern of this program's effects on the public and on state regulatory authority in two informational memoranda in November 1999 and in March 2000. In addition, official information on both sides of this issue, along with written updates from our member boards as they are received, is available on the ARBO web site. Please visit the web site for latest thoughts and opinions from your fellow state board members across the country. As did the leadership of the American Academy of Optometry (AAO) and the Association of Schools and Colleges of Optometry (ASCO), the ARBO Board of Directors feels that the issue of ABOP's proposed Board Certification program, and the ramifications of its impact on state regulatory boards, the public, and the entire profession, should be referred to our House of Delegates. In our previous communications with you, we asked that you discuss the ABOP program among your own state board members and suggested that your board seek advice from your own legal counsel. On Monday of the ARBO Annual Meeting there will be a panel discussion, with plenty of time provided for questions and answers, intended to present both pros and cons of the ABOP Board Certification program. I urge you to make every attempt to be present and to provide input into this important discussion. If you cannot attend, write ARBO with your opinion. The ARBO House of Delegates will take a stand on this critical issue in June. I want to end this message on a positive note. I want to thank each of you for your trust and confidence in allowing me to serve this year as your President. It's been a year of challenges, and a year of opportunity for ARBO. I especially want to commend to you your Board of Directors. The Board has faced every challenge with dedication and has worked diligently on your behalf. And speaking of dedication, on behalf of the entire Association of Regulatory Boards of Optometry, I want to thank and pay tribute to a giant among us, Mary Lou Freitag, O.D., who completes her 15 years of service to ARBO this year. Her outstanding service and contributions to this organization cannot be counted, and she's a wonderful human being. Please join me in acknowledging and saying thank you to Mary at the Annual Meeting. There will be a reception to honor Dr. Freitag Monday, June 19, at 6:30 p.m., sponsored by the Nevada Board of Optometry. PROGRAM HIGHLIGHTS FOR LAS VEGAS Board Certification Delegation of Authority State Board Executive Directors/Administrators Workshop,
Sunday, June 18 Codes of Conduct for Board Members and Staff Healthcare Integrity & Protection Databank presented by
Information & Data Services National Optometric Data Bank presented by Information &
Data Services DEA and the Impaired Practitioner Additionally, on Monday, June 19 at 8:00 a.m. there will a State Board Executive Directors / Administrators Networking Session. This session will be designed for participants to ask questions related to administrative issues only. A great opportunity to network with other state board executive directors, administrators and other staff! While state board staff are specifically invited to attend this session, we strongly encourage all board members attending the Annual Meeting to participate. Legal Issues Update Mail Order Contact Lens Litigation Update President's Reception - in Honor of Retiring Board Member,
Mary L. Freitag, O.D State Board Reports A draft agenda, together with additional information, was mailed to all state board members on April 24. If you haven't received you information pack by the time you read this, please call the ARBO office at (301) 913-0641 to request meeting information, or email your request to arbo@arbo.org. FARB ATTORNEY CERTIFICATION COURSE The date to mark on calendars for this year's Federation of Associations of Regulatory Boards (FARB) Attorney Certification Seminar is Nov. 2-5, in Lake Tahoe, CA. The seminar, especially for regulatory attorneys, will be held at the Resort at Squaw Creek, 400 Squaw Creek Road, Olympic Valley, CA 96146. The hotel phone number for accommodations reservations is (530) 583-6300. Brochures will be mailed out in early summer for this interactive learning experience. This will be the first course to be presented under the guidance of Dale Atkinson, who is legal counsel for ARBO and the new executive director of FARB. For more information, contact FARB at (847) 328-7909, or send a request for registration information by fax to (847) 864-0588 or email to mailto:aandaatlaw@aol.com. Nominations are being solicited for TWO positions on the ARBO Board of Directors. The following nominations and elections are to be made at the Annual Meeting: Election to the Board of Directors of ARBO to a four-year term. Frank L. Salimeno, O.D., Vice President, is completing his first four-year term and is eligible, and is planning on running, for reelection to a second term. Election to the Board of Directors of ARBO to a four-year term. Robert L. Sorrell, O.D., Board Director, is completing a three-year unfinished term and is eligible, and is planning on running, for reelection to a first, full four-year term. Interested in running for office? Call ARBO for more information - (301) 913-0641. ARBO BOARD DIRECTOR NAMED "OD OF THE
YEAR" ARBO is proud to announce that ARBO Secretary-Treasurer Don Crouch, OD, was the recipient of the Heart of America Contact Lens Society "OD of the Year" Award at their February meeting in Kansas City, MO. Congratulations Don! COUNSEL'S CORNER - We Have Ways To Make You Talk Five doctors of optometry were under investigation by the Kansas Board of Examiners in Optometry. The optometrists leased space from a retail optical dispenser and were being investigated by the board as to whether customers were being given the impression that the optometrists' practices were part of the unlicensed retail businesses. The optometrists refused to cooperate in the investigation, specifically refusing to take part in the investigative interviews unless a court reporter was present. The board refused to permit the court reporter to attend such investigative sessions. The substantive allegations and investigation were eventually dropped. However, based upon the refusal of the optometrists to provide information at the interview, each of them was independently publicly censured by the board for such conduct under separate administrative proceedings. Kansas law specifically provides that licensees who fail to furnish the board, its investigators or representatives with any information legally requested are subject to an independent disciplinary action based upon such refusal. Through a summary judgment proceeding, without a formal hearing, the board determined as a matter of law and policy that its request for an investigative interview outside the presence of a court reporter was legal. Therefore, the board held that the public censure issued against each optometrist was appropriate based upon the failure to provide the board with information legally requested. The optometrists appealed the matter to the Supreme Court of Kansas. They argued that the board's refusal to conduct a hearing before imposing discipline deprived them of their due process rights under both the federal and state constitutions. Based upon the Kansas Administrative Procedures Act, the court noted that dispositive motions could be filed including motions for summary judgment. Because the parties did not contest the factual findings, summary judgment is appropriate whereby only matters of law are in need of analysis and decision making. Thus, the court held that a formal hearing was not necessary and that the optometrists were not deprived of their due process rights. The optometrists also argued that the board improperly interpreted the relevant Kansas statute which provides an independent basis for discipline based upon refusal to provide information. Specifically, the optometrists argued that they should not be penalized for refusing to cooperate during the initial investigation because they had a right to seek redress and, after exercising that right, they agreed to cooperate. In response, the Supreme Court questioned the optometrists' argument that their ultimate willingness to comply with the request to submit to investigative interviews should have barred the boards sanction against them for their initial refusal. Because the optometrists chose not to cooperate, they must suffer the consequences of their failure to successfully challenge the board's action. As stated by the court:
The optometrists also argued that the board did not have a policy prohibiting optometrists from recording investigative sessions. Alternatively, the optometrists argued that if such a policy were in effect, it was adopted contrary to the rule making procedures under applicable Kansas law. The Supreme Court rejected these arguments stating that the board policy does not purport to interpret or implement statutory requirements and is, thus, not subject to publication as a rule or regulation. The board's policy of not permitting the licensee to dictate the terms of an investigation is not the type of requirement or prohibition that warrants public dissemination, which is only required where ignorance of such policy could affect the licensee's ability to earn a living. Based upon the foregoing, including the rejection of other arguments, the Supreme Court upheld the reprimand issued by the board. The authority to conduct investigations by regulatory boards is an important tool in public protection. Boards of optometry are encouraged to understand and utilize the investigative process, including the issuance of subpoenas and interviews allowable under state law. Investigations can provide valuable information to the regulatory board in not only uncovering inappropriate past conduct, but also deterring future wrongdoings in a preventative manner. As in this case, failure to cooperate in an investigation may constitute grounds for a separate, independent disciplinary action. |