Minutes of

North Carolina State Board of Optometry

July 30-August 3, 2009

Jane McKimmon Center

Raleigh, North Carolina

The North Carolina State Board of Optometry met in Raleigh, North Carolina, Thursday, July 30 through Monday, August 3, 2009 at the Jane McKimmon Center on the Campus of North Carolina State University to conduct the Summer 2009 Clinical/Practicum Examinations, to hear reports from the officers and staff, to review complaints and for other purposes. Present were Dr. Joel Banks, President, Mr. Roger Mitchell, Secretary/Treasurer, Drs. David Anderson, Michael Clark, William Rafferty, William Hendrix and Ms. Mary Richardson, Members of the Board. Present as Staff were John D. Robinson, OD, Executive Director, Janice Peterson, RN, Administrative Secretary, and Ms. Sara Roberts, Administrative Assistant. Mr. Johnny Loper, the Board’s Attorney, was present on Thursday and again during lunch on Sunday to meet with the Board in closed session to discuss litigation and policy matters pursuant to GS 143-318.11(a)(3). Present as Clinical Examiners were: Drs. Jill Bryant, Kenneth Bumgarner, Jamie Casper, Ania Hamp, Dave King, Magda Metwalli, John Miller, Sandra Moore, Brett Munn, and Robert Rosenstein. Present as an observer for a full day of the examinations was Dr. Scott Gordon. Dr. Christopher Lievens from Southern College of Optometry also observed the examinations for a full day on Sunday.

At 4:15 p.m. Dr. Banks called the Board meeting to order and offered an opening prayer. In accordance with the State Government Ethics Act, he read the North Carolina State Ethics Commission “Ethics Awareness & Conflict of Interest Reminder”.

APPROVAL OF MINUTES. On a motion by Dr. Anderson seconded by Dr. Clark and carried unanimously, the Minutes of the Meeting held in Myrtle Beach, June 11-14, 2009 were approved.

On a motion by Dr. Rafferty, seconded by Dr. Anderson and carried unanimously, the minutes of the Annual Meeting held at noon on June 11, 2009 were approved.

REPORT OF THE PRESIDENT. Dr. Banks had no formal report; however, he did take the opportunity to thank the Members of the Board for their trust and faith in his leadership abilities by electing him to serve a second term as President for the 2009 - 2010 fiscal year.

REPORT OF THE SECRETARY/TREASURER. Mr. Mitchell presented the Budget Report for the period 07/01/09 through 07/31/09. Upon a review of the Report by Members of the Board and the answering of questions, a motion was made by Mrs. Richardson, seconded by Dr. Anderson and carried unanimously to accept the report of the Secretary/Treasurer.

REPORT OF THE EXECUTIVE DIRECTOR. There are a number of issues that were brought to the Board’s attention that will require action in the immediate future. They include:

• Action by the House of Delegates of the American Optometric Association that approved the creation of the “American Board of Optometry” whose purpose will be to develop and implement a program that will grant ‘Board Certification” to those optometrists meeting the requirements and to act as a ‘credentialing’ body for third party payers (including but not limited to Medicare and Medicaid and other programs that may be established as a result of ‘health care reform’) that address ‘Maintenance of Competency’ for those optometrists maintaining their Board Certified status.
• Current Board policy addressing the use of ‘Board Certified’ in the promotion of themselves or their practices by licensees will be in conflict with the use by licensees for ‘promotional purposes’ the credentials that are to be bestowed by the to be created American Board of Optometry (should plans for its establishment move forward) upon those meeting the yet to be finalized ‘criteria’ for ‘Board Certification’. Mr. Loper and others in his Firm have researched the ‘law’ and prepared a document that address the issue based upon legal precedent coming out of their research. A copy of this document is a part of your meeting note book.
• We have prepared a draft of a memorandum that addresses the action of the AOA’s HOD and the Board’s position as to the effect of their action on current Board Policy regarding ‘board certification’, issues of maintenance of competency and the statutory authority and responsibility of the Board to speak for its licensees when necessary to third party payers including, but not limited to, Medicare and Medicaid. It is recommended that the Board review this document and make whatever changes deemed appropriate so that the statements contained therein are clear and concise before sending it out to all North Carolina licensed optometrists.
• In the face of what is being planned at the national level by the American Optometric Association as a result of the action of its HOD’s in Washington last month the Board must determine its continuing role as the ‘credentialing body’ for North Carolina licensed optometrists including, but not limited to, its statutory authority and responsibility to ensure (for the public welfare) the ‘Maintenance of Competence’ of all those who hold a current license to practice optometry in North Carolina. To this end the Board might consider increasing the number of hours of continuing education require annually for license renewal from 20 to 25 hours and to include an ‘evaluation’ component for a minimum of 25 % of those hours classified as ‘certified hours’.
• With adjournment of the 2009 Legislature the bill that would define ‘surgery’ in the optometry licensing act (Article 6 of Chapter 90 of the NCGS) was never heard in the House Health Committee, thus not eligible for consideration in the short session in 2010. There is a petition for ‘rule making’ that has been sent to the Medical Board by the NC Medical Society and its constituent Societies (including SEPS) that require limitations on the use of the word or title ‘doctor’ by non-physicians. Mr. Loper with input by the Executive Director and the President is preparing a response to this petition on behalf of the Board that will be sent to the Medical Board within the next few days. The Medical Board will consider the ‘petition’ at its September meeting. We will monitor the situation as necessary, and should the petition move forward we will be prepared to testify against its adoption before the Administrative Rules Commission.
• Questions concerning ‘scope of practice’ are frequently received in the Board office. There are occasions where such questions are directed at Board Members. At our meeting in Myrtle Beach it was the consensus of the Board that there should be a ‘standard’ answer to be used by the Board Members should they receive requests for such information. A copy of the recommended ‘response’ is in the meeting note book. It was prepared by Mr. Loper with the help of the Executive Director and President. It is recommended that it be kept close at hand to use when needed. Inquires needing or requesting further information should be referred to the Board office.
• Information concerning the ‘new’ National Board examination format was shared with you earlier. We have been working with the NBEO’s Executive Director on the language needed to update the Board’s rules to reflect changes in the NBEO Parts and format. There will be no need to edit the current rule, rather adding another ‘sub-paragraph’ to update the requirement for ‘passage’ of the NBEO.
• The Board’s software programmer and data systems manager is in your note book. He indicates that the ‘basic’ system written using ‘Microsoft Sequal Server’ to replace the d-base system in use for years is now finished except for testing some of the components and the writing of the software to enable staff to create ‘reports’ required to respond to current and anticipated needs of the Board. It is no secret that this project has taken much longer and has cost more than anticipated. It has been a source of great frustration by the Board Members and the Staff. Target dates for completion have been set by the programmer a number of times but were not met. In Myrtle Beach Dr. Anderson expressed the opinion that should the latest target date not be met that the Board consider bringing in an ‘outside expert’ to review the work that has been done and what will be needed to complete the project. By consensus the Board agreed with his opinion.

Dr. Banks, I have nothing further to report at this time.

On a motion by Dr. Clark, seconded by Dr. Anderson and carried unanimously the report of the Executive Director was accepted.

On a motion by Dr. Clark, seconded by Mr. Mitchell and carried unanimously the Board authorized Dr. Anderson, at his discretion, to seek the services of an ‘outside’ expert in the ‘writing’ and use of software for data management similar to that being written for the Board to review and make a professional appraisal of the work done to date in the writing of the Board’s new software and the programs that have been created to meet the Board’s data management needs, including but not limited to, the renewal of licenses, issuing and tracking branch offices, management of continuing education courses and credits earned by licensees and tracking and renewal of licenses for professional corporations, said expert or consultant to work with the cooperation of the Board’s Executive Director, Administrative Secretary and Mr. Dixon.

REVIEW OF COMPLAINTS: There was discussion regarding a complaint that had been filed relative to a yellow page ad for an optometrist in this state and the implication in the advertisement that the practice offered “retinal laser surgery” and “cataract surgery”. Appropriate letters of concern and the violations in question pointed out to the respective licensees will be forthcoming from the Board attorney.

CLOSED SESSION. On a motion by Mr. Mitchell, seconded by Dr. Anderson and carried unanimously, the Board went into Closed Session to receive information and advice from the Board’s attorney and to discuss matters of litigation pursuant to GS 143-318.11(a)(3).

In closed session, the Board received a report from Mr. Loper regarding (1) the results of research performed by Mr. Loper’s firm concerning possible responses to a petition for rulemaking filed with the North Carolina Medical board by the North Carolina Medical Society and others seeking to have the Medical Board regulate the use of the term “doctor” under certain circumstances and the possible effect of such a rule, if enacted, on health care providers not licensed by the Medical Board; and (2_ the results of research performed by Mr. Loper’s firm regarding possible response to the American Optometric Association regarding its establishment of the American Board of Optometry for the purpose of “board certifying” optometrists and the benefits of informing the Board’s licensees of the Board’s position in this regard. Mr. Loper responded to the Board’s questions and outlined possible response to both of these issues.

On motion by Dr. Clark, seconded by Dr. Rafferty and carried unanimously the Board voted to return to open session. No vote or other action was taken by the Board in the closed session.

MEMORANDUM REGARDING BOARD CERTIFICATION. On a motion by Dr. Clark, seconded by Dr. Anderson and carried unanimously, the Board approved a memorandum to be sent to all licensees concerning the Board’s position regarding Board Certification and the approval by the House of Delegates of the American Optometric Association of a program on Board Certification under the governance of a to-be created American Board of Optometry. A copy of the memorandum is attached.

RESPONSE TO THE PETITION TO MEDICAL BOARD BY THE MEDICAL SOCIETY AND OTHERS REGARDING RULEMAKING GOVERNING THE USE OF THE TERM DOCTOR. On a motion by Dr. Anderson, seconded by Mr. Mitchell and carried unanimously, the Board authorized Mr. Loper to draft a response on behalf of the Board of Optometry to the Medical Board prior to their taking any action on the petition for rule making received from the Medical Society stating its concern with the proposed rule submitted to the Medical Board by the North Carolina Medical Society and others that would have the Medical Board undertake the responsibility of regulating the use of the term “Doctor” by anyone other than physicians licensed by that Board notwithstanding the fact that there are other health care practitioners providing medical services under the laws of this state who have a “Doctorate Degree” recognized by the state that have been granted by Institutions of Higher Learning.

CLINICAL EXAMINERS HONORARIUM. On a motion by Dr. Clark seconded by Mrs. Richardson and carried unanimously the Board approved that five days honorarium be paid to each of the Clinical Examiners, as well as all travel and meal expenses as required for each of them.

NEW BUSINESS There was no new business

OLD BUSINESS. Board members were reminded that the ethics law requires that all public servants and their immediate staff attend a refresher presentation at least every two years after attending a Basic session. New members have six months from the date of appointment to attend a Basic ethics education session. The State Ethics Commission website posts a calendar of scheduled presentations.

EXAMINATION OF THE CANDIDATES. Fifty-one candidates whose applications had been approved appeared for examination. The first session began at 7:45 a.m. on Friday July 31, 2009 and the last session ended at 2:10 p.m. on Monday August, 3, 2009.

Their being no further business on a motion by Dr. Clark, seconded by Dr. Rafferty and carried unanimously the meeting was adjourned at 2:30 p.m. on Monday, August 3, 2009.

The next meeting of the Board to determine the results of the Summer 2009 Clinical/Practicum Examinations and to consider other matters that might come before the Board will be held at the Board Office in Wallace beginning at 6:30 p.m. on Thursday , September 3, 2009 and conclude no later than 4 p.m. on Friday, September 4, 2009.

Approved 09/04/09

Wallace, NC