Minutes of the                                                                              

North Carolina State Board of Optometry                           

November 12–15, 2009

Grove Park Inn

Asheville, North Carolina


The North Carolina State Board of Examiners in Optometry met at the Grove Park Inn in Asheville, North Carolina on November 12 – 15, 2009 to conduct its regularly scheduled Fall Meeting, to monitor the Educational Program at the Fall Educational Congress of the North Carolina State Optometric Society, and for other purposes.  Present were, Dr. Joel Banks, President, Mr. Roger Mitchell, Secretary/Treasurer, Drs. David Anderson, Michael Clark, Andrew Cook, William Rafferty and Ms. Mary Richardson, Members of the Board.  Also present was Dr. John Robinson, the Executive Director.  Present at the time certain meeting at 10 A.M. on Thursday via conference telephone was Mr. Johnny Loper, the Board’s attorney.  


The President called the meeting to order at 8:35 AM and offered the opening prayer following which he read the ‘ETHICS AWARENESS & CONFLICT OF INTEREST REMINDER’ as required by the North Carolina State Ethics  Commission (a copy of the statement was included in each Member’s meeting notebook).  Before taking up the first item on the Board’s agenda for the meeting Dr. Banks took time to recognize and welcome Dr. Cook as the newest Member of the Board.


Approval of Minutes.  On a motion by Ms. Richardson and seconded by Dr. Cook the minutes of the meeting of September 3–4, 2009 were unanimously approved.


Report of the President   Dr. Banks stated that he had no formal report to give; however, he said that he would comment at appropriate times as the various agenda items were addressed.  On a motion by Dr. Anderson that was seconded by Ms. Richardson the report of the President was accepted unanimously. 


Report of the Secretary/Treasurer.  Mr. Mitchell gave the report of the Secretary/Treasurer.  He called the Members’ attention to a letter dated September 15, 2009 to the Board from Martha L. Garris, Financial Assistant at Four Oaks Bank, responding to questions raised at the Board’s last meeting concerning the insuring of Board funds deposited in that institution and to a memo from the Office of the State Treasurer dated June 30, 2009 regarding the same subject, “Collateralization of Public Deposits and Pooling Bank List”.  The letter and the memorandum explain that beyond the ‘normal’ FDIC insurance protecting the Board’s deposits in Four Oaks Bank there is a “Collateralization of Public Deposits” of all funds deposited in approved banks by Agencies of State Government that insures deposits exceeding the amount covered by the FDIC.  Four Oaks Bank is among those banks appearing on the State Treasurer’s “Collateralization of Public Deposits and Pooling Bank List”.  After he and the Executive Director responded to questions from the Members of the Board he reviewed the Budget Report covering the period July 1, 2009 through November 09, 2009.  He noted that the increase in income over the same period a year ago was largely due to the fact that the renewal applications were mailed on October 15th, a week earlier than last year allowing four weeks for ‘early’ responders to complete the forms and return them with the appropriate fee prior to the preparation of this report.  When there were no further questions from the Board, Dr. Clark moved and Dr. Anderson seconded a motion that the report of the Secretary/Treasurer be accepted.  The motion carried unanimously.


Report of the Executive Director.    As mentioned in the report of Secretary/Treasurer the 2010 license renewals went out earlier this year than in any year in recent memory.   After the printing of the renewal forms the Ernie/Toby system was turned off, and as completed forms have been returned the data is entered directly into the new system.  John Dixon has been in the office every day as the first renewals arrived to make sure that things were working as they should and to fix ‘glitches’ as they occured.   Thus far there have been a number of minor ‘glitches’ which were quickly fixed with little delay in the data entry process.  As  anticipated, as the Administrative Secretary and the Administrative Assistant worked with the new system they identified changes they wanted made to make it easier for them to use and to eliminate as many of what they determined to be ‘duplicate key strokes’ with the entry of data.   Mr. Dixon has been working to make the changes they request. 


The Board’s action to require COPE approval of all courses offered outside the State of North Carolina (out of state meetings) effective January 1, 2010 prior to their being considered for approval as meeting the Board’s continuing education requirement has resulted in a number of critical concerns that require the Board’s attention and need to be addressed.  There is a need for more concise guidelines in the criteria for approval of all courses including those given within the state.  Further, problems heretofore not encountered are arising due to the increasing numbers of ‘not for profit’ organizations co-sponsoring continuing education events with ‘for profit’ companies and organizations.  Standards for approval must be uniform for both vendors and courses, leaving little or no room for ‘mix and match’ approval of any event if the intent of the continuing education requirement is to be truthfully met. 


The office is awaiting a Board decision to increase the number of continuing education hours required for license renewal before proceeding with ‘rulemaking’ to update the listings of the Schools and Colleges of Optometry and the changes in the National Board Examination requirements with the thought that it would be much simpler and more cost effective to do all three at the same time.


A copy of an e-mail received by Dr. Banks from Dr. Herb Smith is in the meeting notebook noting that the State Society has appointed him and two others to an ad hoc committee to ‘look at the question of competency’ of optometrists in North Carolina.  This is brought to the Board’s attention for discussion at this meeting.


A copy of a letter to Dr. Banks from Dr. Duane Binkley asking the Board “to consider the nature of duplicate licenses for an optometrist seeing patients in a nursing home setting” and possibly waiving or reducing the costs of the branch office licenses and their renewal in such instances is also included in your meeting material.  Dr. Binkley is seeing patients in over 70 different nursing homes as scheduled by the various nursing homes based upon their needs.   If nursing homes provide for the services of optometrists on a regularly scheduled basis as opposed to a ‘local’ or near-by optometrist being ‘on call’ to see patients in that facility rather than have the patient transported to the optometrist’s office, then the location of the nursing home providing for optometric services is considered to be a branch office for the optometrist providing their residents or patients optometric services.  The Board has no authority to ‘waive’ the branch office requirement or ‘decrease’ fees that are set forth in statute and the Rules and Regulations of the Board in situations such as Dr. Binkley describes. [See NCGS 90-.118.2; 90-118.10; 90-123(8) and Subparagraph of Section .0200 of the NCAC] 


In your notebooks for your review prior to our time certain meeting with Mr. Loper are copies of letters drafted by Mr. Loper to the Chairmen of the Finance and Health Committees of the United States Senate addressing the issue of maintenance of competence (MOC) to practice optometry and the statutory authority and responsibilities of the Board under the laws of the State of North Carolina in such matters.   Health Care Reform bills are pending before both Houses of the United States Congress that contain language addressing maintenance of competence (MOC) of all health professionals to practice.  While it is not at all clear at this time as to what the specific language relative to issues of maintenance of competency might be, Mr. Loper articulates previous positions taken by the Board on the subject.


Finally, little progress has been made since we last reported on the reorganization of the data base of cases and the writing of new scenarios for its Clinical/Practicum Examinations.  This is a project that requires a huge volunteer effort unless the Board is willing to make large expenditures to pay individuals to do the work required.  As you are aware, there have been many interruptions over which the Board had little control; however, it is our hope that we can get things ‘back on track’ and that we can report progress by the time the Summer 2010 examinations take place.


Dr. Banks, this concludes my report; however, as the meeting progresses there may be additional items that need addressing.  On a motion by Mr. Mitchell seconded by Dr. Cook and carried unanimously, the report of the Executive Director was unanimously accepted.


Appointments and Assignments. Dr. Banks made the following appointments and assignments:


Dr. Rafferty and the Executive Director to continue working on issues and criteria related to the Board’s approval of continuing education courses including the clarifying of criteria for approval by the Board of both vendors and courses;

Dr. Anderson and himself to continuing working with the Executive Director and Staff in the reorganization of the scenario data base;

The Executive Director to work with selected Clinical Examiners , Board Members and Staff to create a workable system by which case scenarios can be created, evaluated and stored for future use in the Board’s examinations;

The Executive Director to appear at the meeting of the Executive Council of the State Optometric Society on Thursday evening to respond to those issues raised by Dr. Herb Smith in his e-mail and to answer any questions that Members of the Council might have concerning continuing education requirements and the Boards position on initial and continuing competence of North Carolina optometrists; and

The Executive Director to notify Dr. Binkley that the Board is unable to act favorably on his request to waive or reduce fees for branch office licenses for locations within nursing homes providing services of optometrists’ for their residents or patients.  


Report of the Probable Cause Committee.  The Executive

Director reported for the Committee. When it was discovered

that the person filing the complaint with the Board had also filed a civil complaint against the optometrists, the Probable Cause Committee consisting of Drs. Anderson and Robinson were advised by Mr. Loper shortly after it was appointed that it should wait to proceed with its investigation pending the outcome of court appearances of the person filing the complaint and the optometrist against which it was filed.   Mr. Loper had obtained copies of the complaint filed with the courts and the date the matter was to be heard.  When he contacted the court after the date the matter was to be heard to determine the results of the trial, he learned that the case had been dismissed because the complaining witness failed to appear.   Finally, when he attempted to contact the person making the complaint to ask why they failed to appear in court resulting in the dismissal of their complaint and to determine if they still wished to pursue the matter before the Board, he never able to get a response; therefore, the complaint file at the Board in the matter has been closed.


The Regional Association of Regulatory Boards in Optometry (ARBO) held during the SECO International Educational Congress    SECO and the Regional Meeting of the Association of Regulatory Board’s in Optometry are scheduled to be held in Atlanta February 10 - 14, 2010 and are traditionally attended by the Executive Director and one or more of the Professional Members of the Board.  This year there is a conflict in the meeting dates of the SECO Congress and the Board’s Winter 2010 examinations.  Dr. Cook has responsibilities at SECO and has noticed the President that he will not be present for the examinations.  Dr. Rafferty as the President of ARBO will go for a day but will be back in time for the examinations.


The President asked the Executive Director to contact Dr. David Baxter, a former Member of the Board, to ask if he would be present at the Winter Examinations to fill in as a ‘Board Member’ in the examination stations at the Winter 2010 examinations.


Time  Certain Meeting with Mr. Loper. At precisely the hour of 10:00 A.M. a motion was made by Mr. Mitchell and seconded by Ms. Richardson to go into closed session  in accordance with the provisions of NCGS 143-318.11(a)(3) to

receive privileged information and advice from the Board’s attorney Mr. Loper, and regarding potential litigation. The motion carried unanimously.


In closed session Mr.  Loper reviewed with the Board certain communications to committees of the United States Senate drafted by Mr. Loper at the direction of the Board.  Mr. Loper answered questions from the Board regarding the

intent of the letters, the content of the letters, and the specific language used.  Mr. Loper provided advice regarding certain possible language changes.  After Mr. Loper responded to various questions from the Board Members, and on a motion by Dr. Anderson, seconded by Mr. Mitchell and carried unanimously, the Board voted to return to open session.  No motions were made and no votes taken while the Board was in this closed session.


Letters to Senators Baucus and Harkins.  Following careful review and frank discussions by the Board of the two letters drafted by Mr. Loper to Senator Max Baucus, Chairman of the Senate Finance Committee and to Senator Tom Harkins, Chairman of the Senate Health Committee in reference to pending Health Care Reform legislation and requirements that the Centers for Medicare and Medicaid make PQRI incentive payments based upon “Maintenance of Certification (MOC) or equivalent programs”, and after approving several changes in what would become the final draft, the North Carolina State Board of Optometry without dissent by any Member of the Board, instructed Mr. Loper to send the revised letters via e-mail, facsimile and the USPS to the two Senators.  Copies of both letters are attached to these minutes.


Report of the Examination Review Committee.   Dr. Rafferty reported on behalf of the Examination Review Committee.  He and the Executive Director met in the Board office on October 14, 2009 with two candidates who had failed the Summer 2009 Clinical/Practicum Examinations.   The scoring of the examinations (including the notes made by the clinical examiners) was reviewed with each candidate.  Upon review of the results of their examination with each of the candidates no evidence was discovered to support changes in either of their score; therefore, it is recommended that the results of the examinations stand as reported.  On a motion by Dr. Anderson seconded by Dr. Cook and carried unanimously the Board in accepting the report of the Committee determined that the examination results as reported to the candidates would stand. 


Winter 2010 Clinical/Practicum Examinations.   Based upon the number of applications held over from the Summer 2009 examinations and the number that is in the hands of potential registrants at the time of this meeting, the number of applicants taking the Winter 2010 examinations will certainly be no more than twenty.  There is a possibility – though remote - that there could be less than ten applicants by the time of the deadline for filing applications meaning there would not be an examination (for the first time ever). Assuming that the number will not exceed twenty, no more than four sessions over a period of two days will be required.  Therefore, it is recommended that the Board and Clinical Examiners arrive in Raleigh on Friday afternoon February 12, 2010 for orientation and examination stations set-up. Three sessions will be conducted on Saturday the 13th, and if required the remaining one on Sunday, February 14th.  In the very unlikely event that the number of applicants exceeds 20 it would be possible to do three sessions on Sunday.  Until we have information otherwise the Board office is looking at a schedule that will accommodate up to twenty candidates with the Board Members and Clinical Examiners arriving at the McKimmon Center at 3 P.M. on Friday, February 12, 2010 with departures no later than 3 P.M. on Sunday afternoon, February 14, 2010. On a motion by Dr. Clark, seconded by Dr. Anderson and carried unanimously the Executive Director was authorized to select the Clinical Examiners from  those who were at the Summer Examinations and if necessary from those who have served preciously as Examiners.  Should it become necessary he may select one or more Examiners from those individuals who have appeared as observers at a previous examination. Finally, following brief discussions the Executive Director was authorized to proceed with plans for a two day examination schedule with arrivals by the Board and the Clinical Examiners at the McKimmon Center in Raleigh on Friday, February 12, 2010 at 3:00 P.M.


Meeting To Determine the Winter 2010 Examination Results.  A date for the Board to meet to determine the results of the Winter Examination must be established prior the end of the February meeting.  It is recommended that the date be the week-end of March 26 – 27, 2010.   Members of the Board were requested to review their calendars for possible conflicts in order that a date be finalized.  Likewise, a date must be established by the time the Winter examinations start for those applicants who might not be successful in passing the examinations to review their results with representatives of the Board.  It is recommended that the review be scheduled for no later than the third week in May so that the recommendations of the Committee can be submitted to the Board at its meeting in June. The President asked that Dr. Rafferty be prepared to act as the Board Member on the Examination Review Committee and that he consult with the Executive Director as to the most convenient time for him to meet in the Board office during the first half of May 2010 to conduct the review session.


On a motion by Dr. Clark, seconded by Mr. Mr. Mitchell and carried unanimously, the meeting was recessed at 12:30 P.M. on November 12, 2009.  The remainder of the meeting was devoted to attending the orientation sessions for the new licensees and in monitoring the continuing education program at the Fall Educational Congress of the North Carolina State Optometric Society.


The next meeting of the Board for the purpose of conducting the Winter 2010 Clinical/Practicum Examinations and for other purposes will be at the Jane McKimmon Center in Raleigh, NC beginning at 3:00 P.M. on Friday, February 12, 2010.  Adjournment will depend on the number of applicants but will be no later than 3:00 P.M. on Sunday, February 14, 2010.



                                                                                                Approved February 12, 2010

                                                                                                                                Raleigh, NC