Professional Practice for Optometry

Privacy is a patient right. Optometrists have an ethical and legal responsibility to safeguard patient information. Patient information includes such information as personal data, medical history, diagnosis, treatment, and financial situation.

Patient information should be shared only on a need-to-know basis with those who participate in the care of the patient. Unless disclosure is required by law, patient information should not be shared with anyone without the patient's written permission. Court orders, subpoenas and investigations by the Office of Professional Discipline are examples of disclosures that may be required even in the absence of the patient's consent.

Patient information, written or electronic, must be kept secure from loss, theft, or unauthorized access, use or disclosure. Confidential information should be kept out of plain view, and stored in a secure environment. Care should be taken not to talk about patients in public places, even if you are not using the patient's name.

Under section 29.1(b)(8) of the Regents Rules, it is unprofessional conduct to reveal personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the patient or client, except as authorized or required by law. If you violate this confidentiality rule you may be subject to charges of unprofessional conduct.

Your decision to disclose patient information must be consistent with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), if it applies. More information regarding HIPAA may be found on the United States Department of Health and Human Services Web site at www.hhs.gov/ocr/hipaa.

Health professionals are required to maintain records for each patient that accurately reflect the evaluation and treatment of the patient according to section 29.2(a)(3) of the Rules of the Board of Regents. All patient records must be retained for at least six years, with the exception of records for minor patients, which must be maintained for at least six years and for one year after the minor patient reaches the age of 21.

Accurate and complete patient records serve many purposes. For example, patient records can ensure consumer protection, guide professional treatment, and facilitate professional consultations. Patient records are required in matters pertaining to professional liability and professional discipline.

Practitioners and their patients should be aware that under some conditions other parties might have reason to have access to patient records. For example, in some cases, patient records may be needed by other professionals to provide requisite patient care. Your records, therefore, should be an accurate and legible account of the evaluation and treatment of the patient.

Under Section 18 of the Public Health Law, patients have the right of access to their records under most circumstances. If you deny access to records to a patient, you have an obligation to inform the patient of his/her right to appeal to the Office of Record Access of the Department of Health. Contact information is available on the New York State Department of Health Web site at www.health.state.ny.us/nysdoh/opmc/medright.htm.

If you dispose of records when there is no longer any obligation or need to maintain them, they should be properly destroyed to safeguard patient confidentiality.

Optometrists who retire or sell their practices must make provisions for records to be maintained and accessed, if requested. The obligation to maintain records is not changed by the retirement or sale of a practice by an optometrist.

Your records may be your principal defense to charges of professional misconduct. There is no statute of limitations for charges of professional misconduct.

Optometrists should also make provisions for the maintenance and destruction, as appropriate, of their patients' records in the event of the optometrist's death. In some cases, if appropriate provisions are not in place, the optometrist's estate could be subject to a malpractice suit after his/her death.

The optometrist should adequately monitor the performance of all personnel, licensed or unlicensed, that he or she supervises. The optometrist is ultimately responsible for quality patient care and is accountable for all services provided by administrative and clinical individuals that the optometrist supervises.

Section 29.2(a)(1) of the Rules of the Board of Regents defines as a basis for unprofessional conduct, "abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients."

In the event of an emergency, optometrists may become unexpectedly ill or disabled rendering them unable to continue to provide services. Normally these cases would not be considered abandonment. However, appropriate planning for such events early in the professional relationship can ensure that patients receive the essential services they need when emergencies occur.

Optometrists who surrender or lose a license as a result of a professional disciplinary action should also ensure that patients are referred to other optometrists who can provide essential professional services.

Good practice often involves the need to consult with other professionals to provide for quality patient care. When legally required or when consultation is otherwise appropriate, you should obtain the patient's consent before consulting with other professionals.

It is also good practice, and in certain circumstances it may be necessary, for the patient to give informed consent permitting you to reveal any personally identifiable information to a consultant.

The Office of the Professions does not negotiate or resolve fee disputes. However, fee disputes can often lead to complaints of professional misconduct including claims unrelated to the actual fee dispute, such as claims of negligence or incompetence. Even when these complaints are determined to be unfounded, the optometrist will have had the inconvenience and expense sometimes associated with an investigation.

To avoid these complaints, optometrists should:

• Clarify the billing conditions, including insurance coverage if applicable, with the patient at the outset of the evaluation and treatment, and specify the financial arrangements in terms that the patient can understand.
• Explain to the patient all costs involved with their treatment, including co-payments and expenses that are not covered by insurance. It would be useful to have a written policy in place which is signed by patients to indicate their understanding of the costs involved for their evaluation and treatment and for the optometrist and the patient to develop an individualized payment agreement in advance of treatment when the patient must pay for non-covered expenses.

Insurance billing, though sometimes seemingly uncomplicated and straightforward, may easily lead to disputes and/or allegations of misconduct. To avoid this, billing statements, insurance claims, and treatment reports should be simple, clear, direct, and accurate representations of the services provided, the fees charged for each service, and the nature of the patient's evaluation and treatment.

• Discussing payment and insurance issues (including pre-certification) at the first meeting with the patient, or soon afterward, could help to ensure that the patient fully understands all financial arrangements and could also help to avoid any possible misunderstandings and subsequent disputes regarding issues such as co-payments or contract differences.
• It is good practice to have the patient's written authorization to release information necessary to process an insurance claim or to complete a treatment report for pre-certification; there may be circumstances in which authorization is required.
• Optometrists should be aware of precisely what they are stating when signing any insurance form or report. What information you are asked to provide and what you are asked to attest to often varies depending upon the insurance form or report. For example, a signature as provider on the insurance form may, in some instances, constitute a certification that the signatory directly provided the services him or herself.
• Attention to details and making certain that you have provided all of the required information when completing insurance forms and reports can help to avoid delays in payment and subsequent misunderstandings and disputes between you and the patient.
• When a patient cancels or does not appear for an appointment, it is usually considered fraudulent to bill an insurance company for that appointment unless the insurer has provided for cancellations within the contract.

The Education Law requires that every four years every optometrist practicing in New York State complete approved coursework or training appropriate to his/her practice in infection control and barrier precautions. Regular training is required to prevent the transmission of the human immunodeficiency virus (HIV) and the hepatitis B virus (HBV) in the course of professional practice. Each optometrist must document compliance with this requirement at the time of your first registration and at each subsequent reregistration.

Optometrist should treat all patients with respect and with a professional demeanor. If a complaint is filed, it will be your responsibility to demonstrate that the patient has been treated in a professional manner and that appropriate boundaries have been maintained.

Optometrists should establish a working relationship with patients and when appropriate, with their legal guardian, involving them as active participants in treatment decisions.

Section 29.2(a)(2) of the Rules of the Board of Regents defines unprofessional conduct to include "willfully harassing, abusing or intimidating a patient either physically or verbally."

Sometimes problems may arise due to miscommunication and misperceptions between optometrists and patients/guardians. You should try to recognize the indicators of such problems and try to prevent or quickly defuse these situations.

The optometrist should keep careful records of what transpires in discussions with each patient and if appropriate, their legal representative.

All prescriptions for drugs and devices are required to contain the following information:

• Date the prescription is written
• Prescribers name, address and phone number
• Profession and registration number
• The patient's name, address, and age
• The name, strength and quantity of the prescribed drug or device
• The directions for use by the patient

Other than contact lens prescriptions, optometrists are required to provide a patient with a copy of his or her prescription, upon request. The prescription must include the name, address and signature of the prescriber and date of prescription.

The Federal "Fairness to Contact Lens Consumers Act" requires prescribers of contact lenses to provide the patient with a copy of their contact lens prescription upon the completion of the contact lens fitting, whether or not it is requested by the patient. The prescriber may not require that the patient sign a waiver or release before verifying or releasing prescriptions. For other requirements relating to contact lens prescriptions, visit the Federal Trade Commission's Web site at www.ftc.gov.

The laws, rules, and regulations pertaining to the practice of optometry in New York State can be found at Laws, Rules & Regulations for Optometry. If more detailed information is required, you may contact the New York State Board for Optometry by calling 518-474-3817 ext. 591 or e-mailing optombd@nysed.gov.

Unlicensed individuals, who may also be referred to as unlicensed aides, may not perform tasks that are within the scope of practice for licensed optometrists. This includes “tasks that require professional or clinical judgment."

Tasks that may be performed by unlicensed individuals include, but are not limited to, general office work, preparing equipment, assisting the optometrist with instilling certain eye drops*, maintaining proper documentation of the administration of eye medication, and collecting and recording of patient data under the direct supervision of an optometrist. The unlicensed individual may not initiate, adjust or perform treatment programs, assume responsibilities for planning patient care, interpret clinical data or make referrals. 

Pursuant to Education Law §6509(7) and §6509(9), unprofessional conduct by a licensee, includes permitting, or aiding or abetting an unlicensed individual to perform activities/tasks that require a license. Additionally, under §29.1(b)(10) of the Commissioner's regulations, unprofessional conduct by a licensee includes delegating professional responsibilities or duties to a person when the licensee delegating such responsibilities knows, or has reason to know, that such person is not qualified, by training, by experience or by licensure to perform the duties.

Citations of Pertinent Law, Rules or Regulations:

• Education Law §6509(7) - “Permitting, aiding or abetting an unlicensed person”
• Education Law §6509(9) - ''unprofessional conduct'' 
• Rules of the Board of Regents §29.1(b)(10) - “delegating professional responsibilities to a person..."
• *Education Law §7105(d)(1) - “Exempt persons for instilling eye drops”

Disclaimer: The following advisory constitutes a general discussion of the issues that may arise when a licensee provides professional services. The discussion is intended to alert practitioners to questions and concerns that they may want to consider with their legal counsel, if necessary, and are not to be construed as a directive or other requirement to take any particular action. Practice guidelines provide licensees with general guidance to promote good practice. Law, rules and regulations, not guidelines, specify the requirements for practice and what may constitute professional misconduct. The statements are generally based upon statutory and regulatory provisions relating to the practice of optometry but are not legal interpretations of any of these provisions. The citations to the provisions of law, regulation and Regents Rules are included to add clarity to the discussion.

What is Telepractice ?

Telepractice is used by many professionals in a growing number of areas including, but not limited to, health care (telehealth). Online healthcare encounters are becoming more commonplace, yet consumers may be confused about what constitutes a comprehensive eye examination provided through virtual technologies. It is important, then, to reinforce that standards of professional practice pertain to both in-person and "virtual" services. Telepractice is defined as the provision of professional service over geographical distances by means of modern telecommunications technology. This generic term includes, for example, telehealth, teletherapy, teledentistry, telemedicine, telenursing, etc. In accordance with New York State statutes and regulations, full licensure and current registration are required of any professional who practices in New York State, unless there is a specific exemption in law or licensure and registration requirements have been specifically suspended or waived pursuant to an Executive Order issued by the New York State Governor during a disaster emergency. All New York State licensed professionals are responsible for adhering to the same laws, rules and regulations and for upholding the same standards and competencies when engaging in telepractice as they are when providing face to face or in person services.

Services provided via telepractice may include assessment, diagnosis, consultation, treatment, education, and care management. The delivery of services via telepractice must comply with all laws, rules, and regulations in New York State, including, but not limited to NYS Education Law, Title VIII, Art. 143; 8 NYCRR Part 66 and Part 29 of the Rules of the Board of Regents. Telepractice services should not be used by a provider if they may result in any reduction to the quality of care. Telepractice providers are obligated to instruct and inform the public as to the limits of their services and obtain their consent for a telepractice visit. Since many eye problems have minimal or no symptoms until the problem has substantially progressed, a comprehensive in-person examination may be required. Services provided by means of telepractice must be in compliance with the Health Insurance Portability and Accountability Act (HIPAA) and all other relevant laws and regulations governing confidentiality, privacy, and consent.

Telehealth providers should utilize appropriate codes and billing procedures including the same ethical and legal standards that apply as in traditional treatment. As a general rule, New York State Public Health Law Article 29-G authorizes reimbursement under section three hundred sixty-seven-u of the social services law for health care services provided by telehealth means, including optometrists. For more information or questions relating to reimbursement for telehealth services or the requirements relating thereto, please review New York State Public Health Law Article 29-G or contact the New York State Department of Health.

Telepractice Issues

Telepractice should be considered a modality and applied only as appropriate to address the patient's needs. In order to engage in telepractice in an effective, safe and legal manner, licensed optometrists should consider the following:

1. Telepractice Examination Content: Comprehensive Exam
   
   Telepractice services shall include all comprehensive testing components. The health interests of New York residents are best served by detection of eye disease during examination and, if required, an appropriate referral. Practitioners should institute procedures to properly examine the eye and the adnexa. Examination of the eye through telepractice modalities must maintain the same standard of care as is expected during in-person examination and therefore should include but is not limited to:
    
   • Visual acuity testing
   • Medical/ocular history
   • entrance testing (color/depth perception etc.)
   • refraction
   • medical evaluation which includes intraocular pressure (IOP) testing, anterior and posterior segment findings
   • contact lens evaluation, if appropriate
   • confrontational testing (or equivalent)
   • treatment plan
   
   For the sake of clarity, evaluation should include external tissue observations (lids etc.), corneal and tear evaluation, anterior chamber and angle, lenticular and retina remarks. All eye examination services and providers should be prepared to dilate patients or refer to doctors performing this procedure. All examinations should include a warning as to the limits of an online examination.
    
2. Telepractice Guidelines on Refraction and Other Vision Testing
   
   The determination of refraction data (for an eye glass prescription) is not a comprehensive eye examination Many eye diseases are not detected through an online refraction (see guidelines IIA). When appropriate telehealth services should include testing for prism as part of the spectacle prescription, the optometrist should assess binocularity, depth perception and eye muscle balancing.
    
3. Telepractice and Medically Urgent Patients
   
   For medically urgent patients seeking follow-up examinations for existing or new problems (e.g., red eye, swollen lids, allergic reactions, etc.) through telehealth platforms, testing protocols will be left to the discretion of the health care provider to determine the appropriateness of services. In all instances, patients should to be encouraged to follow-up with the provider based upon their specific recommendations, which may include office visits and/or referrals to other health care providers.
    
4. Telepractice Examinations for Follow Up Visits
   
   For patients who have undergone a comprehensive exam and established a relationship with a provider, intermediate telehealth services may be appropriate. This could include a follow-up visit to perform specific tests or procedures subsequent to comprehensive examination. The provider should determine the appropriateness of providing this encounter through telehealth services.
    
5. Telepractice Technology Requirements for All Examinations
   
   An optometrist providing telehealth services in NYS must be licensed and currently registered to practice optometry in New York State and must provide proof of identity, jurisdiction and licensure status to the patient. For all patient encounters and visits, providers must follow the standard of care that applies to a face-to-face or in- person encounters and visits and perform only those activities within the scope of their license.
    
6. Confidentiality
   
   The licensee shall ensure that the electronic and/or digital communication is secure to maintain confidentiality of the patient's medical information as required by the Health Insurance Portability and Accountability Act (HIPAA) and other applicable federal and state laws. Confidentiality shall be maintained through the appropriate processes, practices and technologies, including disposal of electronic and/or digital equipment and data. In order to ensure confidentiality, encryption, password-restricted access and other technologies should be used whenever possible
    
7. Patient Records, Referrals and Consent
   
   Record keeping for telehealth services must follow standard clinical documentation guidelines used by Optometry professionals. Clinical record documentation includes, but is not limited to, billing (financial) and coding (procedures and diagnosis) as well as addressing the standards of care. Optometrists providing telehealth services must assume the responsibility to maintain medical records in compliance with all existing rules, regulations, and standards of care.
   
   Telehealth services should implement all reasonable referral measures to ensure patients are assisted during the transfer of care to another healthcare provider. This includes assistance in making the referral appointments, referral letter/notes to other healthcare professionals, and follow up if required.
   
   When appropriate, telehealth providers should secure and properly maintain informed consent from patients. Informed consent should address a patient's understanding of potential privacy risks and explanation of procedures to protect data from privacy breaches. The online exam should be documented and protected in the same way as it is in a face to face or in person visit.
    
8. Patient's Rights
   
   The telehealth provider should provide patients with basic information about the services they will be receiving via telehealth, and patients should provide their consent to participate in services utilizing this technology. Telehealth sessions and services should not be recorded without the patient's consent. Culturally competent translation and/or interpretation services should be provided when necessary.
   
   Patient rights policies should ensure that patients receiving telehealth services:
    
   1. have the right to refuse to participate in services delivered via telehealth and be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face or in person visit;
   2. are informed and made aware of the role of the practitioner at the distant site, as well as qualified licensed staff at the originating site;
   3. are informed and made aware of the location of the distant site and all questions regarding the equipment and technology are addressed;
   4. have the right to have appropriately trained and licensed staff immediately available to them at the originating site while receiving the telehealth services;
   5. have the right to be informed of all parties who will be present at each end of the telehealth transmission; and
   6. have the right to select another provider and be informed of any delays related thereto or the potential need to travel for a face-to-face or in-person visit.