In Kentucky, who decides whether a procedure like the Durysta eye implant is within an optometrist's scope of practice?
Plain-English summary
A Medicare administrator told the Kentucky Board of Optometric Examiners it would deny coverage when optometrists place Durysta, a dissolvable eye implant that lowers eye pressure, because the administrator viewed Durysta as an "implant" that falls outside what optometrists are allowed to do in Kentucky. The Board, which thinks the procedure is within optometry, asked the Attorney General whether it (the Board) has the sole authority to decide what counts as the practice of optometry, so that insurers cannot second-guess it.
The opinion says yes, with an important caveat. By statute, KRS 320.240(7), the legislature gave the Board "the sole authority to determine what constitutes the practice of optometry," and KRS 320.240(6) says no other agency, board, or entity may make that call. So when there is a dispute about whether a procedure is in scope, the Board decides, not a Medicare administrator or an insurer. Kentucky's insurance statute (KRS 304.17-305) reinforces this: health policies that cover optometric services must reimburse for what the Board has determined is within the lawful scope of optometry.
But the opinion is careful about the limits. The Board's authority is "constrained by statutory limitations," including the legislature's explicit exclusions, such as nonlaser surgical intraocular implants (KRS 320.210(b)(9)), full-thickness corneal incisions (b)(3), and posterior-chamber injections (b)(16). If the Board wants to read "nonlaser surgical intraocular implants" to mean only permanent implants, it has to show a textual basis for that, because statutory interpretation turns on the words the legislature used. And the opinion expressly declines to decide whether Durysta is in scope: the Attorney General says he has no authority to make that determination and is not doing so. The takeaway is about who decides (the Board), not what the answer is.
What this means for you
Optometrists and the Board
Under this opinion, the Board, not an insurer, is the body that decides what is within the practice of optometry (KRS 320.240(7)), but it must stay within the statutory exclusions and ground any interpretation (like reading the implant exclusion as covering only permanent implants) in the statute's text.
Health insurers and Medicare administrators
The opinion's position is that a payer cannot substitute its own judgment for the Board's on whether a procedure is within optometry's scope, and that under KRS 304.17-305 a policy covering optometric services must reimburse what the Board has determined is in scope.
Healthcare attorneys and billing staff
Note two limits the opinion flags: it does not resolve whether Durysta is in scope, and it does not address a situation where the Board's determination would clearly conflict with federal law such that preemption is in play.
Common questions
Q: Does this opinion say optometrists can place Durysta?
A: No. The opinion is explicit that it does not decide whether Durysta is within the scope of optometry. It only decides who gets to make that call: the Board.
Q: Can an insurer or Medicare administrator overrule the Board on scope of practice?
A: Under the opinion, no. KRS 320.240(7) gives the Board sole authority, and KRS 320.240(6) bars other entities from making that determination.
Q: Is the Board's authority unlimited?
A: No. The opinion stresses the Board is constrained by statutory limits, including the legislature's explicit exclusions (for example, nonlaser surgical intraocular implants in KRS 320.210(b)(9)), and must base its interpretations on the statutory text.
Q: Does insurance have to pay for in-scope optometric services?
A: The opinion reads KRS 304.17-305 to mean that a health policy covering optometric services must reimburse for services the Board has determined are within the lawful scope of optometry.
Background and statutory framework
The practice of optometry is defined in KRS 320.210, which includes "all routes of administration of pharmaceutical agents" (KRS 320.210(1)(a)(1)) subject to limits (KRS 320.240(12)-(14)), and which carries explicit exclusions for full-thickness corneal/scleral surgeries (KRS 320.210(b)(3)), nonlaser surgical intraocular implants (KRS 320.210(b)(9)), and posterior-chamber injections (KRS 320.210(b)(16)). KRS 320.240(7) gives the Board "sole authority to determine what constitutes the practice of optometry," and KRS 320.240(6) forecloses other entities from doing so. The opinion applies textualist interpretation principles (Kenton Cnty. Bd. of Adjustment v. Meitzen, 607 S.W.3d 586 (Ky. 2020); In re Partin, 517 B.R. 770 (Bankr. E.D. Ky. 2014); Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683 (Ky. 2020); Univ. of Louisville v. Rothstein, 532 S.W.3d 644 (Ky. 2017)), and reads the insurance-reimbursement statute KRS 304.17-305 to follow the Board's scope determination.
Citations and references
Statutes:
- KRS 320.210; KRS 320.210(1)(a)(1); KRS 320.240(12)-(14) (practice of optometry; pharmaceutical agents)
- KRS 320.210(b)(3), (b)(9), (b)(16) (statutory exclusions)
- KRS 320.240(7), (6) (Board's sole authority); KRS 304.17-305 (insurance reimbursement)
Cases:
- Kenton Cnty. Bd. of Adjustment v. Meitzen, 607 S.W.3d 586 (Ky. 2020); Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683 (Ky. 2020); Univ. of Louisville v. Rothstein, 532 S.W.3d 644 (Ky. 2017); In re Partin, 517 B.R. 770 (Bankr. E.D. Ky. 2014) (statutory interpretation)
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/2024.10.09%20KBOE_Final.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
October 9, 2024
OAG 24-10
Subject: Whether the Kentucky Board of Optometric Examiners has the sole authority to determine what constitutes the practice of optometry.
Requested by: Benjamin C. Fultz, Counsel for the Kentucky Board of Optometric Examiners
Written by: Lindsey Keiser, Assistant Attorney General
Syllabus: The Kentucky Board of Optometric Examiners has the sole authority to determine what constitutes the practice of optometry, constrained only by statutory limitations.
Opinion of the Attorney General
The Kentucky Board of Optometric Examiners ("KBOE") has asked the Office of the Attorney General to provide an opinion on whether the KBOE has the sole authority to determine what constitutes the practice of optometry. The question has arisen because a Medicare administrator informed KBOE by letter that it would deny coverage for the placement of a dissolvable implant, called Durysta, into the eye by optometrists in Kentucky. Specifically, this Medicare administrator asserted that Durysta should be coded like other implants, and therefore, as an implant, it is excluded from the scope of the practice of optometry under Kentucky law. The KBOE has determined the procedure is within the practice of optometry as defined by KRS 320.210(2), and believes other entities, including insurance companies, should not be able to dispute the KBOE's determination.
Background on Durysta
Durysta is an FDA-approved ocular implant intended to reduce eye pressure caused by open angle glaucoma or high eye pressure. The implant is preloaded in a sterile applicator with a 28-gauge needle tip. Then the needle is inserted into the cornea and through to the anterior chamber where the implant is released. The implant releases medicine as it dissolves over time.
Durysta and the Scope of Optometry under Kentucky Law
Under Kentucky law, the practice of optometry means "[t]he evaluation, diagnosis, prevention, or surgical, nonsurgical, or related treatment of diseases, disorders, or conditions of the eye." KRS 320.210. It includes "all routes of administration of pharmaceutical agents," KRS 320.210(1)(a)(1), although the type of pharmaceutical agents that can be used—and when and by whom—is limited by statute, see KRS 320.240(12)-(14). The General Assembly has also explicitly excluded some types of procedures from the scope of optometry. Relevant here, the General Assembly has excluded nonlaser surgeries "requiring full thickness incision or excision of the cornea or sclera," KRS 320.210(b)(3), "[n]onlaser surgical intraocular implants," KRS 320.210(b)(9), and "nonlaser injections into the posterior chamber of the eye to treat any macular or retinal disease," KRS 320.210(b)(16).
The KBOE believes none of these exclusions apply to Durysta. First, Durysta is injected into the anterior chamber of the eye, so the exclusion of injections in the posterior chamber in (b)(16) does not apply. Second, since the application of Durysta involves an injection with a needle rather than a "full thickness incision or excision of the cornea," it is not excluded by (b)(3). Third, the KBOE asserts Durysta should not be excluded by (b)(9) as a non-laser surgical intraocular implant because the KBOE believes this exclusion refers to "permanent artificial replacements" and Durysta is not permanent.
At least one Medicare administrator disagrees. In a letter to KBOE, the Medicare administrator seems to assert Durysta is excluded from the scope of optometry by (b)(9) simply because it is an implant. The Medicare administrator seems to think that if Durysta is an implant, it is not an injection. In particular, the Medicare administrator asserted it was improper for optometrists to use CPT code 66030: "Injection, anterior chamber of eye with medication" for Durysta rather than one of the HCPCS J-codes, which cover the administration of medicine by implants. And indeed, there is a J-code for a bimatoprost intracameral implant—and that is what Durysta is—just for a different dosage amount.
Who decides whether Durysta is in the scope of optometry in Kentucky?
In KRS 320.240(7), the General Assembly established that the KBOE "shall have the sole authority to determine what constitutes the practice of optometry." Indeed, the General Assembly clarified that nothing in the statute should be construed to allow any other agency, board, or entity of the State to make such a determination. KRS 320.240(6). Therefore, when there are questions about whether a procedure is within the scope of the practice of optometry in Kentucky, the KBOE has the "sole authority" to make that determination. See KRS 320.240(7). Thus, interpreting Kentucky's law to determine whether Durysta is within the scope of optometry is a job reserved solely for the KBOE.
Of course, the KBOE remains constrained by any limitations imposed by the General Assembly through statute. This includes the explicit exclusion of "[n]onlaser surgical intraocular implants." KRS 320.210(b)(9). The KBOE cannot ignore these constraints or, more generally, the constraints of statutory interpretation principles. For instance, "[d]iscerning legislative intent requires a focus on the words chosen by the legislature." Kenton Cnty. Bd. of Adjustment v. Meitzen, 607 S.W.3d 586, 592 (Ky. 2020). This means the intent of the legislature must be ascertained from the "words used in enacting statutes rather than surmising what may have been intended but was not expressed." In re Partin, 517 B.R. 770, 773 (Bankr. E.D. Ky. 2014) (citations omitted); see also Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683, 689 (Ky. 2020) ("[O]ur rules of statutory interpretation assume the Legislature knows what it is doing and intends the clearly expressed language of the legislation."); Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) ("[W]e assume that the Legislature meant exactly what it said, and said exactly what it meant." (cleaned up and citations omitted)). So, if the KBOE believes "non-laser surgical intraocular implants" only refers to permanent implants, it needs to demonstrate some basis in the text for this belief. But it is indeed for the KBOE—and not any other entity—to make this demonstration as part of its determination about whether Durysta is in the scope of optometry.
Kentucky's statutory provisions about insurance coverage support this conclusion. Under KRS 304.17-305, "any policy of health insurance issued in this state" that "provides for reimbursement of any service which is within the lawful scope of practice of an optometrist duly licensed as provided in KRS Chapter 320" must reimburse for such services. This means insurance providers providing such coverage must cover what the KBOE determines to be within the scope of the practice of optometry because the General Assembly has designated the KBOE as the sole authority to make that determination as a matter of law.
Conclusion
Accordingly, the question of whether a procedure is within the scope of the practice of optometry is solely within the decision-making purview of the KBOE as constrained by statutory limitations.
Russell Coleman
ATTORNEY GENERAL
Lindsey R. Keiser
Assistant Attorney General
[Footnote 6: This Opinion does not address an instance where the KBOE's determination clearly conflicts with federal law or regulations such that preemption must be considered. Here, the only question is whether Durysta is in the scope of the practice of optometry in Kentucky.]
[Footnote 7: Nothing in Kentucky law evinces that the General Assembly envisioned—or allows—a role for any other entity. This includes the Office of the Attorney General. Therefore, nothing in this opinion should be read as a determination about whether Durysta is within the scope of the practice of optometry. The Attorney General has no authority to make that determination and does not attempt to do so here.]