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AOS court case threatens our physician status

June 21, 2012

An Urgent Message from AOA President Dori Carlson, O.D.

While most of the American Optometric Society (AOS) lawsuit against the American Board of Optometry (ABO) has been defeated even before going to trial, the lone remaining claim will damage the profession and disrupt AOA advocacy. The AOS lawsuit is no longer about board certification, rather it is about AOS legal tactics threatening our core identity and our future standing in all aspects of health care. Thus, no matter your personal opinion about board certification, the line has been crossed by the AOS, either by design or failure to consider the dangerous consequences of placing our status as physicians in jeopardy.

It is my sad duty to inform every AOA member that last week the legal tactics of the AOS resulted in a federal judge stating that optometrists are not physicians, thus creating a serious threat to our profession. It now appears possible if this claim goes to trial a federal judge could take action precipitated by the AOS that would be the most decisive and far-reaching reversal of our profession’s progress ever and would be seized upon by medicine and third-party payers to oppose us for decades to come in state, federal and third-party advocacy arenas.

Optometrists can, and do, often disagree about which state’s scope expansion bill or federal legislative or regulatory victory has advanced our profession the most over the last 25 years. However, one undeniable fact understood by every OD is that the 1986 federal law that recognizes optometrists as physicians in Medicare has been the foundation of all of our advocacy success and the underpinning of our profession’s standing as health care providers.

Unfortunately, after withstanding a quarter century of withering attacks from the House of Medicine and the even more powerful insurance industry, our hard-won, federally recognized physician status is now at extreme risk of being wiped away by a federal judge at the urging of a small group within optometry led by the AOS. By taking their endless war against the ABO and by extension, the AOA, into federal court, a handful of our own colleagues are doing what medicine and insurers have been unable to do. They’ve put our physician status on trial and in pursuing their limited vision for optometry in court, they’ve opened the door to undoing all that we’ve gained from state, federal and third-party advocacy during the professional lifetime of nearly every active AOA member.

How is this possible?

The remaining claim against the ABO, due to proceed to trial within a few weeks, in essence centers on whether or not optometrists are physicians. As it stands now, the answer will be determined by a federal judge, and he’s already made it clear that he’s skeptical about optometry. In fact, in his summary judgment order from last week, Federal District Court Judge A. Howard Matz said very plainly that “Optometrists are not physicians.”

The judge’s statement is no accident. From the beginning, the AOS has claimed that ABO certification is not equivalent to board certification for physicians, and that it’s literally false for optometrists to claim that they are board certified by the ABO. Court documents make it clear that the AOS’s case rests heavily upon convincing the judge that board-certified optometrists would be deceiving the public for making the factually correct statement that they achieved the requirements established by the ABO. The essence of their argument is that for an optometrist to be board certified is misleading to the public because the board certification process is unique to medical education and medical residency. This argument, that we are not worthy of parity with MDs, is expected from medicine, never from a group claiming to represent optometry.

AOS doctors and those who agree with them on this issue have always been free to decline to pursue ABO certification, to remain ineligible for the Medicare and other bonus payments linked to board certification and demonstration of maintenance of certification now and into the future and to run their own practices as they see fit. From the beginning of this case, we’ve wondered why they would go to court to deny a colleague’s right to make a different choice and to pursue parity with Medicine.

Lawsuits often bring forth unintended and unexpected consequences. In this case, we have, on the surface, what appears to be debate about optometric board certification that in the light of a judge’s statement last week is now transformed into a lawsuit threatening our physician status. We sincerely hope that it was never the intention of any fellow optometrist to be the cause of a self-inflicted wound to the profession. However, that matters little since allowing the AOS lawsuit to go to trial would cause irreparable harm to the professional future of every optometrist.

Although saddened by this turn of events, we have not given up. As the AOA has done in every state, federal and third-party battle since 1986, we will vigorously defend optometry’s physician status in this case through every means available to us.

Clearly, this is a time for unity. We all must come together to fight for our survival as an independent profession. No matter your personal opinion about board certification, the fight for our physician status is on the line.

Sincerely,

Dori Carlson, O.D.

3 comments

  1. Dr. Anthony B. Carter of Galesburg, IL submitted this letter as a comment on the AOS web site under the entry “Court Denies ABO Motion to Dismiss; Case Will Go To Trial in July.” Dr. Carter gave AOA permission to re-post his letter here.

    AOS Threatens our Status as Physicians!

    After reading some of the comments on this board, it is scary to see how many of our colleagues have little to no clue what your organization is doing. This lawsuit is purely “lets stick it to the man” and nothing more. What will come out, however, may be far different than what you anticipated.

    The results of the pre-trial case are NOT great news for all optometrists. What the trial will do is compare optometric board certification to medicine’s model, and we will be asking a judge (who probably sees an ophthalmologist) to determine if we are physicians or not and if we should have the FREEDOM to create our OWN standards in our OWN profession. It is going to come down to the question of “are optometrists physicians?” The judge has already stated the answer is “NO.” What does this do to medicare? What does this do to our insurance reimbursement rates? I’ll tell you what it does. First it opens optometry to discrimination. If we are not a physician, we certainly won’t be paid like one. A reduced reimbursement from health insurance panels is almost a certainty. Second, it puts us back to 1986 and puts us under the boot of organized medicine for the rest of our professional careers.

    It is important to remember that BOARD CERTIFICATION IS OPTIONAL. Will it create two classes of optometrists? Maybe, maybe not. What certainly has created two opposing groups of optometrists is your organization. What you are doing is harmful to optometry.

    As an organization formed seemingly purely out of the resentment of another organization, the AOS and it’s mission statement are flawed from the start. It is a “take my ball and go home” type of behavior that I’m sure most of you should have outgrown years ago.

    Since you don’t want a cookie means that NO ONE can have a cookie. It’s outright childish and selfish. If you don’t want to be board certified then DON’T DO IT! Be satisfied with the bare minimum. Sit back and grin as you watch optometry fail and become Ophthalmological Assistants. Save the money that you would have spent on board certification because you will need it as you work harder and harder for less and less money.

    I’m sure the impact of board certification will at first be very little. In fact by the time most of your members retire, they may see little to no changes with the certification. Long term, it is my hope that it is another positive step that allows our profession to drive forward, give our patients the care they deserve, and that we may reap the dignity and respect that the profession of optometry deserves. Stop what you are doing, stop destroying optometry, I LOVE IT.

    If the goal of the AOS is to put optometry back 30 years, then kudos – you’re doing a great job, but add that to your mission statement (we wouldn’t want to mislead the public). Make sure your patient’s know this too. Might I suggest a sign in your waiting room that says “I’m against optometric board certification, I’m satisfied with the bare minimum.”

    -Anthony B. Carter, O.D.


  2. Dr Carter and the AOA Community at large:

    If the AOA creates a two-tiered system with Board Certification, I guarantee there will be a class-action lawsuit against the AOA by the 98% of it’s membership who have absolutely no intention whatsoever of becoming Board Certified. It’s a lose-lose situation. To that, why is the AOA so secretive about it’s finances? Why aren’t rank-and-file AOA members asked to vote on topics as “big” as Board Certification? Please try to find out, and put it in your next letter.


  3. Dr. Ancona,

    Thank you for your post. Your representatives from your state have voiced their concerns on your behalf at each House of Delegates which occurs annually. Those are the people you elected at your state level to represent you. That process has been in place for many years. It is in those meetings that all financials are disclosed.

    Perhaps you can request to be a delegate from your state next year. We would love to have you there.

    Again, thanks for the post.

    Dori Carlson, OD



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