Category: Uncategorized

By Dale Atkinson, Esq. 

A recent ARBO Happy Hour webinar addressed the important topic of Board audits.  Regulatory Board audits is a broad topic covering not only financial performance and compliance with fiduciary obligations but also aspects of board effectiveness and efficiencies.   First and perhaps most importantly, Boards of Optometry must know why they exist; specifically, why they were legislatively created and delegated with the authority to enforce the practice act.  While we are all accustomed to reciting the “public protection” purpose of government regulation, a more encompassing response is in order. 

How does this relate to Board audits?  To substantiate the continued existence of a Board or to address legislative changes to optometry regulation, it is incumbent for that Board to understand and articulate why it exists in the first place.  Regulatory Boards are encouraged to dedicate time on their meeting agendas to the “why” question as well as to strategic and generative discussions.  Understanding the why, and where a board is heading, will assist in preparing for legislative and executive branch scrutiny.   

Boards of Optometry are encouraged to engage in outreach to remind readers what the board does and that it is doing so in an effective and efficient manner.  In addition to communicating with applicants and licensees, communication efforts can involve ongoing reports to the legislative and executive branches of government.  When reaching out to government entities, communications can include invitations to attend board meetings, identification of significant events and accomplishments, and constant reminders of the role of the Board of Optometry.  Forging relationships with the legislative and executive branches of government can stimulate reciprocal notices related to amendments to the practice acts and board composition and governance structures.   

Additional outreach can be geared towards trade, academia, media and other outlets that can assist in not only understanding but also promoting regulation. Boards of Optometry also have websites, prepare newsletters, and may have a presence on social media.  Use these vehicles to promote regulation and demystify what and why the Board of Optometry exists.   

One of the most influential communication efforts involves board meeting minutes.  Make sure that board meetings are well run and that the minutes reflect why the board exists and the efficiency of its operations.  Use statistics to help identify the important role the Board of Optometry plays.  Read into the record the mission statement and vision and values of the board at every meeting.  Note statistics related to applications for licensure and renewal, the number granted and denied, the number that remain pending and the average time from completion to issuance.  Similarly, the number of complaints, how many were resolved, how many remain pending and the average time from complaint to resolution.  The number of phone calls to the board, hits to the website, number of newsletters sent, opened and read, and communication efforts to legislative and executive government can also assist in identifying board self-knowledge and effectiveness.  

Boards of Optometry should welcome and always be prepared for audits or sunset review.  Annual reports, whether required or not, should be prepared and disseminated to relevant government entities.  You can be the stimulus to preparedness and influential communication and outreach.  We encourage you to take advantage of these opportunities. 

Tips for New Regulatory Board Members

Being appointed to a Regulatory Board can be a very fulfilling opportunity to use your professional expertise regarding public protection. However, sometimes, this can be a difficult transition. For most optometrists, participation in professional organizations is because we feel strongly about our profession. Although this is a good attitude to have, there is a distinct difference between representing the profession’s welfare and representing the public’s welfare.

Your role on the board is not as an optometrist. You are a public member with optometric expertise. That expertise is the value you bring to the table.

Initially, your default thinking will be in protecting the profession, and understandably, it’s the only reference you’ve known. But that’s not your job as a regulator. Making the mental transition from ‘profession promoter’ to ‘public protector’ can cause a period of cognitive dissonance and can be uncomfortable, especially if you will be making decisions that may be viewed as counter to professional advocacy agendas.

Remember, your job is to protect the public served by your licensees.

Once you have a clear understanding of your role as a regulator, the rest is easier. Here are a few tips to use as a new Optometry Board member:

1. BE PREPARED FOR BOARD MEETINGS
   

   Review Board materials ahead of time. Outline your questions and thoughts to organize your comments for Board deliberations. Be familiar with the statutes and rules you will be working with. Bring them with you! Pay attention and stay alert. The legality of your decisions depends on this.

2. BE FAIR
   

   The public and every person coming before the Board has a right to expect each Board member to handle their matter fairly, competently and reliably. Determine whether you have a conflict of interest. “Any public officer or employee who has, or who’s relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision.”

3. REMEMBER YOU ARE ALWAYS “ON THE RECORD”
   

   Be mindful of your conduct and everything you say at a Board meeting. You are being recorded and minutes are being taken. Assume everything is a public record and that things will always come back to haunt you.

4. AVOID EX-PARTE COMMUNICATIONS
   

   As a Board member you may occasionally be contacted by the public, the press or a party about a pending matter before the Board.  If you are contacted by a member of the public or the press, you should proceed with caution and avoid commenting on matters pending before the Board. For general policies, procedures and information, direct them to Board staff.

5. HAVE A BASIC UNDERSTANDING OF THE OPEN MEETING LAW
   

   The driving policy behind the Open Meeting Law: That meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided.”

6. BE CAUTIOUS IN EVERY EXECUTIVE SESSION
   

   An “executive session” means a gathering of a quorum of members of a public body from which the public is excluded.  Executive sessions are the exception and not the rule during public Board meetings. The situations that qualify for an executive session are: for legal advice with your attorney, personnel matters, or discussion or consideration of records made confidential by law.

7. HAVE A BASIC UNDERSTANDING OF PUBLIC RECORDS LAW
   

   What is a public record? As a rule, “all records required to be kept are presumed open to the public for inspection as public records.” For your purposes as a Board member, you should have the working assumption that everything you create, use or have access to in carrying out your duties as a Board member is a public record. This can include e-mail communications, recordings of meetings, letters, etc.

8. UNDERSTAND THE ROLE OF THE BOARD’S LAWYER
   

   The Attorney General’s office serves as legal counsel to most State Boards. As a Board member, you will receive legal advice and guidance from the assigned Assistant Attorney General (AAG) to the board. That AAG may also be advising and working with the staff for the Board, department or agency. For some agencies and Boards, their assigned AAG may also assume the role of a prosecutor on behalf of the State on cases before the Board for disciplinary actions or other matters. In these situations, once a complaint has been filed and that AAG assumes an adversarial role, he or she may no longer provide legal advice to the Board on that particular case or matter.

9. ENJOY YOUR TIME AS A PUBLIC SERVANT!

There has been much discussion about the role of regulatory boards in optometry. We all know the primary mission of any regulatory agency is to protect public health and welfare through enforcement of the practice act. However, it seems that outside influences are attempting to change that mission and create broader responsibilities that do not line up with standard regulatory principles and policies.

How do you define ‘public’?

It has been stated by some state regulatory board members that, “everyone is the public”. The problem with this definition is that it renders regulatory boundaries virtually limitless, which opens the gates of outside influence. This leaves the board not only more vulnerable to regulatory capture but also nearly impotent to keep up with such a broad scope of responsibility.

The ‘public’ in an optometric regulatory setting are those patients under the care of an optometrist. It is that segment of the population (public) that we are responsible for.

Normally, when the point is made that, “we are all the public” it tends to refer to a very specific subset of people…and often comes with an agenda. This is a classic symptom of regulatory capture – that is, to expand or distort the definitions so that the board may be more susceptible to outside non-regulatory influences.

This is easy to do because we are voluntary regulators, it’s not our day job, and it can be very difficult to separate the various roles we play in our profession: optometrist, regulator, optometric advocate, and public protector. This makes us susceptible to outside non-regulatory influences that may want to change the system to their advantage. Most often these influences are friends, colleagues, and people we respect in leadership roles, and as a result, it is easy to be influenced by the relationship.

There was a time when regulators, leaders, legislators, and advocates would wear all their hats at the same time. This was/is called the ‘good ‘ol boy’ system. This system did not always follow accepted regulatory principles or policies. Government entities such as regulatory boards are increasingly being called to task and must prove their effectiveness to both the public they serve and the government who appointed them. The good ‘ol boys are increasingly being exposed as an impediment to proper governance and public welfare.

Remember, we are optometric regulators, which means we are public members of our board with optometric expertise. Remember also, who your ‘public’ is. The public you are responsible for are those patients being seen by optometrists licensed in your State or Province.

Are Regulatory Boards Responsible for Access to Optometric Care?

Healthcare regulatory principles assume a relationship between a provider and a patient. If an optometrist never sees a patient, then there is simply no patient to protect. However, here again, is where the definitions may become artificially broadened to satisfy other non-regulatory entities: Are state and provincial boards responsible for making sure patients have access to care?

For example, let’s take two people who have developed blindness.

Person #1: Lives in a rural area with very limited access to healthcare. This person had no access to eye care and developed a vision-threatening disease and lost vision permanently.

Patient #2: Has access to optometric care and developed the same disease. This person also went blind due to the optometrist’s misdiagnosis, mistreatment, and/or mismanagement.

Both scenarios are tragic. However, are regulatory boards responsible for both patients? A regulatory board has jurisdiction and authority over the optometrists licensed in their state or province. In other words, if there is no optometrist involved, there is no authority. Regulatory boards do not have the authority to dictate or direct workforce shortages or demographics – it’s simply not their mission or responsibility.

Improving access to eye care is much needed in rural and isolated communities. Professional advocacy groups have long worked to address these issues of access – and due to their efforts, access to eye care has greatly improved, but much work is still needed in this area. The point here is that access to eyecare is not the responsibility of regulatory boards. Entities that attempt to influence boards to take on this burden can distract from a board’s true mission which is considered regulatory capture.

It goes without saying that the role of a regulator can be challenging given that we are human and come with our own individual experiences and biases. However, understanding a regulatory board’s mission, authority and jurisdiction will help to maintain focus and be true to your responsibility as a board member.

Optometry regulators are tasked with the important role of protecting the public through the enforcement of the practice act. But an often overlooked question is why government decides to regulate the professions. Government is the only entity that can require action (or inaction) as a means of meeting its goal of a civilized and protected society. Government regulation of the optometry profession provides protection to all persons involved and the public as a whole. Applicants, licensees, and consumers of optometry services are afforded rights that ensure a fair process of granting a license and a mechanism of enforcement for the benefit of all. The regulation of the professions is state and provincial-based, meaning each jurisdiction has the right to determine how to regulate in the interest of the persons residing in and seeking the services of a professional. That is why there may be slight differences in the requirements for licensure eligibility and renewal. The Association of Regulatory Boards of Optometry assists its Member Boards by providing programs and services intended to promote uniformity and increase the efficiencies and effectiveness of the optometry regulatory community.

Optometry boards follow the statutes in determining how to license and renew the credential granted to applicants seeking to engage in the practice. The statutes establish the scope of practice which determines what activities can (and cannot) be undertaken and when licensure is required. The intent of these requirements of licensure is to ensure that only qualified persons be granted the authority to practice optometry. Optometry boards gather information about applicants to determine if they qualify for licensure. The gathered information includes education, examination(s), experience, and criminal background checks. If qualified, the board issues a license authorizing that individual to practice optometry. Optometrists periodically renew their licenses after establishing the completion of qualifying continuing education. Boards are authorized to sanction persons that failed to adhere to the legal requirements.

Imagine where we would be without the government licensure of optometrists?

What is the Association of Regulatory Boards of Optometry (ARBO)?

ARBO represents the national and international regulatory arm of the optometric profession. ARBO serves the regulatory agencies responsible for initial and continued licensure. Those regulatory agencies (State and Provincial Boards of Optometry) are responsible for protecting a very specific subset of the general public – that being the public that the profession serves – optometric patients. These regulatory agencies do not protect or advocate for the profession, the doctors, the educators, or the students – these entities have their own organizations that advocate for them. In order for state and provincial regulatory boards to be effective and responsible for their mission and their public, it is important that there is a well-defined line between advocacy groups and the regulatory boards.

The ARBO is a 501(c)3 corporation. ARBO’s mission is to serve its member regulatory boards. ARBO’s only interests are those of the member boards and of the laws that the boards are charged with enforcing.

• ARBO creates and provides services and programs to lessen the burden on state/provincial government for:
  • Initial licensure
    • NBEO/NBERC
  • Maintenance of licensure
    • COPE
    • OE TRACKER
    • CELMO
• ARBO also provides programs and guidance to educate Board members on how to think, act and perform as a regulator.

ARBO serves to protect its members by acting as a watchdog for regulatory capture. That does not mean that we work against various professional advocacy organizations. We are a proud profession and our professional organizations understand the importance of excellent patient care and protection. In many ways, we fight the same battles for providing quality care for patients. Still, as noted, our roles in the optometric profession are distinctly different and must remain distinctly separate organizations.

ARBO’s purpose is stated in our bylaws (ARTICLE II):

The purpose of this Association shall be to exchange information and engage in programs and joint activities relating to the professional education, licensure, and continuing education of optometrists, to improve reciprocal relations and help in solving the mutual problems of the member Boards, and to engage in other activities as the Association may determine, for the purpose of improving the standards of the profession, the delivery of health services and the services of the regulatory licensing agencies, all for the welfare and protection of the general public.

The lifeblood of any volunteer organization is the willingness of its members to volunteer their time and talent to the organization. ARBO has been blessed with the generosity of its many members who have contributed to the continued success of the organization for over 100 years. There are many committees that can fit your time and commitment requirements. ARBO staff provides support and guidance, and fellow committee members can develop relationships to last a lifetime.

If you’re looking for a way to get more involved try one of our committees – you won’t be disappointed!

ARBO Volunteer Committee Options

COPE (Council on Optometric Practitioner Education)

Description: The objectives of COPE are:

• To accredit optometric continuing education providers and activities for the public welfare.
• To monitor programs to help assure the quality and independence of continuing education in appropriate settings with adequate administration.
• To reduce duplication of effort by member boards.
• To create a uniform method of recording continuing education activities.
• To be the reference source for member boards for information about continuing education providers and activities utilized by licensed optometrists to fulfill their continuing education requirements.

Term: Eligible for two 3-year terms (Note: This committee is set through 2024. Volunteers are not currently needed)

• 1 monthly virtual meeting.
• 1 annual in-person meeting.

OE TRACKER (Optometric Education Tracker)

Description: OE TRACKER captures and stores continuing education attendance data for optometrists. The information can be accessed online by optometrists and licensing boards. OE TRACKER saves time and reduces paperwork by tracking/auditing CE credits electronically. The OE TRACKER committee reviews the program annually and makes recommendations for changes and updates.

Term: 1 year

• Virtual meetings every other month.
• 1 annual in-person meeting.

NBERC (National Board Exam Review Committee)

Description: The NBERC verifies the quality and integrity of the National Board Examinations.

Term: 2 years+

• All work is done between October and December:
  • Via email and 2-3 virtual meetings.
  • One in-person 3-day meeting in Charlotte, NC in October.

CELMO (The Council on Endorsed Licensure Mobility for Optometrists)

Description: CELMO assists ARBO’s member optometry boards in reviewing applications for licensure from established practitioners in other jurisdictions in a uniform and consistent manner.

Term: 1 year +

• Virtual meetings every other month.
• One annual in-person meeting.

Judicial Council/Resolutions

Description: Prior to the Annual Meeting, the Judicial Committee will review prior resolutions for relevancy. The Resolutions committee will review and present any new resolutions to the House of Delegates at the Annual Meeting.

Term: 1 year

• 1-2 virtual meetings prior to the Annual meeting in June.
• Possible in-person meeting at the Annual meeting.

Nominating

Description: The Nominating Committee reviews and interviews candidates, and makes a slate of nominees to present to the ARBO House of Delegates for open positions on the ARBO Board of Directors.

Term: 1 year

• 1-2 Virtual meetings prior to the Annual meeting in June.
• Possible in-person meetings at the Annual meeting in June.

Bylaws

Description: The Bylaws Committee reviews any proposed amendments and presents them to the House of Delegates at the annual meeting along with the committee’s recommendation regarding the amendment.

Term: 1 year

• 1-2 Virtual meetings prior to the Annual meeting in June.
• Possible in-person meetings at the Annual meeting in June.

Communications

Description:

• To establish a timely, accurate, effective and efficient system of communication between the ARBO organization and relevant stakeholders.
•  To develop, write and edit content that will be of value to the ARBO member boards.

Term: 2 years+

• Quarterly virtual meetings.
• Draft writing and editing.
• One in-person meeting at the Annual Meeting in June.

COPE®. The Council on Optometric Practitioner Education, the only nationally recognized accreditation system for optometric continuing education (CE), was developed by ARBO to assist ARBO’s member licensing boards by providing assurance that the optometric CE courses they accept for license renewal are of the highest quality.

COPE accreditation addresses professional practice gaps and focuses on improving knowledge, performance in practice, and patient outcomes with improved public health as the goal. COPE is the sole entity available to Boards of Optometry that addresses these needs.

COPE’s Accreditation Criteria are designed to change:

• Optometrists’ competence (strategies for translating new knowledge into action) or
• Optometrists’ performance (what they do in practice) or
• Patient outcomes.

COPE is also a valuable tool that can be referenced when looking to expand the scope of practice. COPE’s accreditation process has been designed to be equivalent to CE/CME accreditation in most mainstream healthcare professions including, but not limited to, medicine, pharmacy, and nursing.

COPE also represents optometry in the Joint Accreditation for Continuing Education in the Health Professions collaborative. Joint Accreditation promotes interprofessional continuing education activities specifically designed to improve interprofessional collaborative practice in health care delivery.

COPE has evolved over time from a CE approval process to a true CE accreditation system based on specific criteria and meeting the highest standards in healthcare CE/CME accreditation.

Approval vs. Accreditation

State and provincial optometry boards originally ‘approved’ CE. The process was not standardized and was fraught with efforts by commercial and professional entities to use CE as a method to promote their products or services. ‘Approval’ requirements involved well-meaning volunteers with little or no experience or expertise in adult learning theory or CE/CME accreditation. As a result, almost any CE from any source could be ‘approved’.

Accreditation, on the other hand, requires specific guidelines and standards to be followed. Specifically, COPE accreditation incorporates accreditation criteria and Standards for Integrity and Independence, which ensure a high-quality, evidence-based, non-biased program of education. The COPE accreditation requirements provide not only the highest quality CE that meets industry standards but also the strongest defense against any criticism of optometric CE used for license renewal.

The COPE accreditation program is the gold standard in optometric continuing education and is a model for CE accreditation throughout the healthcare industry.

Top 5 Reasons a Regulatory Board Should Use COPE:

1. Highest Standards in Healthcare. COPE has evolved from an approval process to an accreditation system that meets the highest standards in healthcare.
2. Improved Patient Outcomes. COPE CE addresses practice gaps and focuses on improving knowledge, performance, and patient outcomes.
3. Accredited. COPE CE is designed to be relevant, effective, evidence-based, and free from commercial influence.
4. Equivalency with Medicine. When looking to expand the scope of practice, COPE’s equivalency to medicine’s accredited CME means legislators are assured that COPE accredited continuing education is of the highest quality.
5. Public Health Assurance. Public health is best protected by requiring accredited CE which measures outcomes and incorporates quality improvement measures.

In the 1980s most states had a very limited scope of practice for optometrists consisting of refraction and contact lens fitting. In the 41 years that have followed, the practice of optometry has grown to fill a much-needed gap in primary eye care. Keeping up with the ever-expanding scope of practice is professionally exciting, but can be a challenge for regulatory agencies to ensure that their licensees have mastered the new skills.

When deciding scope-of-practice issues, legislators will ask how this increased scope will be tested to assure competency. This often leaves the State Boards searching for an answer. Fortunately, the National Board of Examiners in Optometry (NBEO), ARBO’s exam partner, can help with this task. NBEO is constantly updating examinations to meet the expanding needs of State Boards and the Laser and Surgical Procedures Examination (LSPE™) is the newest example.

LSPE is the only nationally standardized examination of its kind, in measuring competency in laser and surgical skills, surgical decision-making, and patient management. LSPE is a stand-alone, elective exam containing both a laser and surgical section. Each of these sections contain performance of clinical skills and computer-based multiple-choice items. The exam is offered to fourth-year optometric students, optometric residents, and optometric practitioners.

The clinical skills portion covers the following:

• Selective laser trabeculoplasty
• Peripheral iridotomy
• YAG capsulotomy
• Suturing
• Chalazion excision

The multiple-choice section covers, in addition to the above topics:

• Eyelid surgery
• Injections
• Ocular anesthesia

For States looking to expand into lasers and surgical procedures in the future, LSPE can be an important tool to assure legislators that ‘testing for competency’ is already in place. Like the other NBEO regulatory licensing examinations, LSPE is valid, uniform, and defensible. More information on LSPE can be found at https://www.optometry.org/exams/lspe.

The National Board of Examiners of Optometry is in the process of revamping Part III CSE (Clinical Skills Exam).  This is a major undertaking and will have a lot of moving parts to put it together. The reason for the update follows the path of progressive, comprehensive healthcare. The standards of care have changed so that it is no longer adequate to simply test whether an applicant can perform a specific clinical skill. The applicant must know why the skill is important and how will it help guide treatment.  As doctors in our clinics, we can teach a tech to perform many of the clinical skills we use on a day-to-day basis. What separates the doctors from the tech is the in-depth knowledge of why a procedure is being performed, to accurately interpret the results and develop a treatment plan.

The new Part III will continue to test clinical skills, but will also introduce more cognitive skills relating to specific procedures.  This change will introduce a more accurate and robust indication of entry-to-practice. Your board can be assured that applicants for licensure are meeting the standards for a changing and progressive profession.

The NBEO does not work in a vacuum; feedback from stakeholders is crucial. The NBEO recently conducted a stakeholder survey to understand which skills stakeholders felt were most essential. A job task analysis, tentatively planned for early 2020, will sample a broad base of the profession to ensure that the new test accurately reflects the clinical and cognitive knowledge for entry-level practice.

• What specific clinical skills are important? Why? What is the thinking behind requiring a specific test or procedure? What will the provider gain from the results of a test or procedure?
• How should a minimally qualified candidate (MQC) use the skills test to guide treatment?

These are cognitive processes that we do every day, so is it enough to just test the skill without testing the reasons behind it? This is the future of entry-to-practice testing.

ARBO will keep you informed on the progress of Part III.