Optometry

The regulatory and control agency that oversees the entire practice and licensing of optometry is known as The California State Board of Optometry. This organization is responsible for maintaining safety and regulation standards for all healthcare practitioners who are optometrists in the state of California. In other words, they not only issue licenses to clinicians like you, but they can also investigate you and determine whether the said license should be revoked under specific conditions. If you are being investigated or are facing disciplinary action, then San Diego License Attorney can help you with every aspect in these civil proceedings.

What Kind of Formal Accusations Can Be Made Against Me?

The investigation always begins with a formal accusation, usually made by a current or former patient, that then compels the state board to begin potential license revocation proceedings. The most common accusations against clinicians (or licensees) include:

1. Any form of conduct that could be considered unprofessional (“unprofessional conduct”)
2. Any form of sexual misconduct, ranging from harassment to assault
3. Not being mentally or physically fit to perform the job
4. Negligence and/or competence in the level and type of care that is provided
5. Alcoholism and/or drug addiction, particularly if the substances are imbibed at the place of work
6. Failure to adhere to infection control protocols as well as health and safety guidelines
7. Practicing optometry while not having a valid professional license
8. Fraudulently obtaining an optometrist license
9. Having unlicensed support staff or assistants working at your practice
10. Operating outside the bounds and/or limits of your optometry license
11. Misuse and/or abuse of topical pharmaceutical agents
12. Advertising practices that could be considered misleading, deceptive, and/or false
13. Operating your optometry practice in a location that is not legal
14. Operating while under disciplinary action by another regulatory agency
15. Any action that may violate the terms of your disciplinary action and/or license probation

The state board will initiate a full investigation, and the resultant administrative hearing will be presided over by an administrative law judge (commonly referred to as an ALJ). If you are found to be “incapable of safe practice,” then you will almost certainly have your license revoked. In essence, this means that the state board and ALJ have determined that the way you practice optometry results in a fundamental inability to guarantee a certain level of safety for your patients.

However, if the nature of your wrongdoing does not fall under the "incapable of safe practice" delineation, then a more likely disciplinary action would be a stayed revocation that is coupled with supervised probation. A stayed revocation means that your license has been temporarily limited or suspended until you fulfill certain conditions that will be handed down by the presiding ALJ and state board.

What Is “Unprofessional Conduct”?

Of the various potential accusations listed above, the most common reason is number (1), “unprofessional conduct.” This is a general term that refers to a whole spectrum of behavior. In fact, it will vary from jurisdiction to jurisdiction, although in California it specifically consists of:

1. The physical and/or mental abuse of a patient
2. Failure to recognize and/or treat common symptoms (this could fall under the category of “negligence”)
3. Excessive prescription of drugs (particularly narcotics) with no valid medical reason
4. The impaired ability or inability to practice optometry due to physical/mental illness
5. Failure to complete the education requirements in order to continue practicing optometry
6. Dishonest and/or fraudulent behavior
7. Failure to maintain adequate patient records as well as maintaining fraudulent patient records
8. Failure to provide a patient with records upon their request
9. Prescriptions (particularly narcotics) and/or treatments that are deemed to be excessive
10. Prescribing medication and/or drugs without performing a proper examination in good faith
11.  Being convicted of a crime that is substantially related to your occupation and/or practice
12. Delegating any form of optometric treatment to an individual without the proper license

As you can see, there is a fair amount of redundancy between the general list of potential accusations and what the California board considers to be “unprofessional conduct.” Depending on the specifics of your situation and the nature of the allegations made against you, state regulators may use more specific parameters in their attempt to revoke and/or suspend your professional license. The tactic that they take will also depend heavily on the nature of their evidence and the specificity of said evidence. 

However, in many situations, they will pursue strictures on your license under the broader term of “unprofessional conduct” even if this phrase can mean any number of things. This may be because the evidence or testimony against you is vague in nature or it may be because they are accusing you of a broad spectrum of transgressions.

The formal accusation of “unprofessional conduct” may also be invoked if the state regulators are attempting to establish a pattern of problematic behavior that limits or precludes your ability to provide an acceptable level of care to your patients. In these situations, they will try to paint your alleged misconduct in broad strokes; this has the potential to be especially damaging to your reputation and good name.

Whatever their tactic may be, San Diego License Attorney has the requisite experience in every one of these cases. We are well prepared to handle any number of specific formal complaints as well as the more general “unprofessional conduct” that is frequently invoked in these disciplinary hearings.

It is also important to note that minor disagreements and/or poor customer service do not fall under the general term of “unprofessional conduct.” In these situations, the aggrieved customer may report you to the Better Business Bureau (BBB), or they may use any number of online portals to rate your business. Neither of these cases, however, falls under the jurisdiction of the state Optometry board and will not threaten your professional license. 

What Kind of Disciplinary Actions Am I Potentially Facing?

The severity of the disciplinary action may vary tremendously depending on the nature and type of violation or misconduct. The maximum penalty is usually the permanent and irreversible revocation of your optometry license, whereas the minimums are much more varied, including:

1. A stayed revocation with three (3) to five (5) years of license probation
2. A short period of suspension, usually thirty (30) days
3. Mandatory continuing education designed to prevent the violation from occurring in the future
4. State board regulators performing regular monitoring at the work-site for the duration of the probation
5. Miscellaneous other conditions and/or stipulations as deemed necessary by the state board or presiding ALJ

Any and all disciplinary actions that are leveled against you will be posted online as a matter of public record. These may include:

1. Suspension
2. Probation
3. Denial of your application for a license
4. Fine and/or citation
5. Formal letter of censure

Because these various disciplinary actions are posted online for the public to see, any optometrist who has faced even a minor disciplinary action may suffer a loss of income due to an inability to keep old patients or secure new ones. It may also affect their ability to gain employment at a larger clinic or practice. Consequently, any disciplinary action, even seemingly minor ones, should be fought and/or appealed under the guidance of an experienced license attorney. This will ensure that you protect your reputation and good name, thereby protecting your future business and capacity to make a living.

What Are the Operating Limits of My Optometry License?

As delineated in number (10) of the above list of formal accusations, operating beyond the limits of your license is the second most common reason for disciplinary action and/or license revocation. This is because the state board considers these actions to be potentially dangerous for patients. Furthermore, unlike many other stipulations in your license to practice optometry, these explicitly delineate the procedures you may perform as well as the procedures that you are not licensed to perform.

In the state of California, your optometry license allows you to:

1. Diagnose and treat glaucoma if the patient is over eighteen (18) years old and does not suffer from angle closure glaucoma
2. Prescribe topical medications, including antivirals and/or steroids
3. Prescribe oral medications, including acyclovir or codeine/hydrocodone for up to three (3) days
4. Prescribe controlled medications, including Schedule II (only hydrocodone) and Schedule III
5. Perform a procedure known as corneal scraping as well as taking culture
6. Perform procedures known as debridement of the corneal epithelia or lacrimal irrigation/dilation
7. In patients with possible diabetic retinopathy, you may administer oral fluorescein
8. Perform an injection only to treat anaphylaxis (an allergic reaction)
9. Order cultures, smears, complete blood counts, urinalyses, acid-fast stains, X-rays, and tear fluid analyses in order to properly diagnose disorders of the eye and/or adnexa

Conversely, under the constraints of your state board license, you are not allowed to:

1. Use needles and/or scalpels to remove any foreign body.
2. Perform any kind of injection (except to treat anaphylaxis).
3. Use any kind of laser for corrective surgery, including LASIK, YAG, PRK, PRELEX, and/or RLE.
4. Perform a probing of the lacrimal tract in the nasal cavity.

Adhering to these parameters is absolutely vital when running your practice. If you are accused of operating outside the limits of your license by performing a prohibited procedure, then the state board will initiate an investigation that may result in the revocation of your license.

Mitigating and Aggravating Factors for Your Disciplinary Action

If a formal accusation has been made against you, San Diego License Attorney will do everything in its power to avoid disciplinary action being imposed on you. This includes:

1. Presenting any and all evidence that is exculpatory in your favor
2. Summoning expert witnesses that will bolster your case
3. Invoking witness testimony that contradicts the various allegations
4. Cross-examining any witnesses against you in order to dismantle their testimony
5. Undermining and effectively arguing against the evidence and/or arguments of the prosecution (state board)

Unfortunately, if there is too much evidence against you or the witness testimonies are effectively impenetrable, then disciplinary action may be simply unavoidable. In these situations, there are aggravating and mitigating factors that your defense team will have to address.

Aggravating factors that will almost certainly increase the severity of your disciplinary action include:

1. Harming the patient’s health
2. Putting the patient in danger of being harmed
3. Any acts that violate the sacred trust between patient and clinician
4. A lack of remorse for your conduct
5. Having any prior violations on your record, thereby establishing that this is a pattern of behavior
6. Benefiting financially from any one of these violations, thereby establishing that greed was the motive for your professional misconduct
7. Committing a crime while a minor is present

On the other hand, there are mitigating factors that greatly improve the chances that you may face minimal disciplinary action such as simple probation. These factors include:

1. A full-fledged admission of the nature of your transgressions and/or wrongdoing
2. Exhibiting genuine regret for your conduct
3. A low probability that you will repeat the violation
4. Open cooperation with the investigation
5. No prior history of significant violations
6. A significant amount of time having passed since the incident without any additional violations being committed

The exact nature of your disciplinary action will depend on how well these mitigating circumstances are presented to the presiding ALJ and state board. That means that even if you know that you cannot avoid disciplinary action, it is still within your best interest to retain the services of a highly experienced and effective firm like San Diego License Attorney in order to properly present your mitigating circumstances.

Cases of Addiction and/or Substance Abuse

Healthcare providers have higher rates of addiction than almost any other occupation, largely because of the stress associated with the work and the access to potent narcotics used to treat various conditions. Consequently, the California State Board of Optometry takes instances in which their constituent optometrists are addicted to drugs and/or alcohol very seriously. This is because healthcare practitioners are far more likely to harm a patient if they are constantly inebriated or have their judgment substantially impaired due to their substance abuse.

This has resulted in the development of a standard protocol for handling these cases, also known as a system of “uniform standards.” The first step in this protocol is having a diagnostic evaluation overseen by an expert clinician to determine if you are addicted to drugs and/or alcohol. While this evaluation is being conducted, the cessation of your practice will be a compulsory order. You will also be subject to two (2) or more random drug tests every week while you await the results of this clinical evaluation.

Furthermore, substance abuse is the only kind of misconduct that has minimum standards and metrics that are explicitly specified by the state board. For example, randomized drug testing must adhere to the following minimums:

1. Year one (1) of probation - a minimum of 52-104 randomized tests per year
2. Year two (2) of probation - a minimum of 36-104 randomized tests per year

Furthermore, if the investigation determines that you are, in fact, addicted to drugs and/or alcohol, then a probation officer will determine if you need to:

1. Undergo substance treatment (and the precise parameters of that treatment)
2. Have investigators monitor your practice during the course of your probation
3. Attend group meetings like Narcotics Anonymous (NA) or Alcoholics Anonymous (AA)
4. Meet any other conditions that may be imposed throughout the course of the probation

If you pass the initial evaluation, you will likely be able to continue your optometry practice without any level of restriction. If you do not pass this evaluation, however, then you will have various probationary terms imposed on you. San Diego License Attorney can help you negotiate for these terms to be less restrictive, allowing you to continue practicing optometry.

Do I Have to Cover the Costs of the Investigation and Disciplinary Action?

Yes, you do. It is important to note that the California board requires any optometrist who has faced a formal disciplinary action to cover the costs incurred by the entire process. This includes any and all costs associated with the investigation as well as the monitoring that will be imposed for the duration of your probation. This is the official policy of the state board to “recover” the costs associated with disciplinary actions in order to keep the costs of licenses and various services at a more manageable level.

However, if you are facing financial hardship and are unable to pay these official costs, it is important to retain a license attorney to help you negotiate a solution to the problem; this is most frequently a one- (1) year payment plan. It is crucial to note that the approval of this plan by the state board and the presiding ALJ is contingent on the fact that you follow all the stipulations of your probation. In fact, missing a payment during this period of time actually constitutes a violation of said probation, so you must work closely with your legal team to set up a payment plan that is feasible given your financial situation and level of income.

Find A License Attorney Near Me

Your license is your livelihood; do not let yourself be blindsided by an accusation, investigation, probationary hearing, and/or potential license revocation. Each of these scenarios should be treated seriously every time, and the San Diego License Attorney is ready to help you in your time of need. We are available 24/7, every day of the year, at 888-959-0068 for a complimentary consultation. Contact our San Diego licensing defense lawyer, and we can start developing a defense strategy right away.