Can Kentucky's optometry board accept out-of-country exam scores, and could it waive licensing requirements without a regulation?
Plain-English summary
Senator Stephen Meredith asked the Attorney General two questions about how the Kentucky Board of Optometric Examiners runs licensing. First, was it allowed to amend its regulation (201 KAR 5:010) to accept written-exam scores from the Optometry Examining Board of Canada instead of only the National Board of Examiners in Optometry? Second, did the Board overstep when it waived a licensing requirement without amending the regulation first?
On the first question, the Attorney General concluded the Board acted within its authority. The licensing statute, KRS 320.250, lets the Board accept scores from the National Board "or any other organization approved by the board," and the General Assembly gave the Board "sole authority to determine what constitutes the practice of optometry" and what skills the practice requires. Because the statute's language is plain, the Board could decide that the Canadian exam tests the right skills and accept it by regulation.
On the second question, the Attorney General concluded the Board went beyond its authority. During COVID-19, the Board temporarily waived the requirement that applicants pass Part III of the national exam (an in-person, out-of-state test) and set up alternative testing, but it did this through internal resolutions at Board meetings, not through a promulgated regulation. Kentucky law (KRS 13A.130) says an agency cannot modify a statute or regulation by internal policy or resolution, and any such modification is "null, void, and unenforceable." So the waiver and the alternative testing were without the force of law, anyone licensed using them did not comply with the regulation, and the Board must review those licensees to confirm they meet the requirements.
What this means for you
Optometrists and applicants: Based on this opinion, accepting Canadian (OEBC) exam scores is valid because it was done by amending the regulation. But if you were licensed during the COVID-era waiver using "alternative testing" rather than passing Part III of the national exam, the opinion concludes that waiver was invalid, and the Board must review your licensure to ensure you met the requirements in 201 KAR 5:010.
Professional licensing boards: The opinion is a clear statement of the rule in KRS 13A.130: you cannot change a statute or regulation through a resolution, internal policy, or memorandum. Real changes to licensing requirements have to go through the regulatory process (notice and comment under KRS 13A.270, a regulatory impact analysis under KRS 13A.240, and review under KRS 13A.290). A shortcut by resolution is void.
Legislators: The opinion notes that if the General Assembly disagrees with how the Board exercised its delegated power, it retains the authority under Section 29 of the Kentucky Constitution to restrict or revise that authority by statute.
Common questions
Q: Can Kentucky's optometry board accept Canadian exam scores for licensure?
A: Yes. The Attorney General concluded the Board acted within its authority when it amended 201 KAR 5:010 to accept Optometry Examining Board of Canada scores, because KRS 320.250(2) lets the Board accept scores from the National Board "or any other organization approved by the board."
Q: Who decides what skills an optometrist needs in Kentucky?
A: The Board. The opinion points to KRS 320.240(7), which gives the Board "sole authority to determine what constitutes the practice of optometry," and reasons that it follows the Board also decides what skills the practice requires.
Q: Was the COVID-era waiver of the Part III exam requirement legal?
A: No. The opinion concluded the Board exceeded its authority because it waived the requirement and set up alternative testing through internal resolutions, not a promulgated regulation. Under KRS 13A.130, such a modification is null, void, and unenforceable.
Q: What happens to people licensed under the waiver?
A: The opinion says the Board must review the licensure of optometrists who were licensed under the waiver and alternative testing to ensure they met the requirements established in 201 KAR 5:010.
Q: Why does the difference between a regulation and a resolution matter so much?
A: Because only duly promulgated regulations have the "force and effect of law." A resolution skips the notice-and-comment, impact-analysis, and legislative-review steps that the regulatory process requires, so it cannot lawfully change a licensing requirement.
Background and statutory framework
KRS Chapter 320 governs the practice of optometry and gives the Kentucky Board of Optometric Examiners broad authority to promulgate regulations for licensure. KRS 320.250(1) requires licensure applicants to pass examinations conducted or approved by the Board, and KRS 320.250(2) lets the Board prepare and grade its own exam or "[a]ccept the scores of the applicant from an examination prepared, administered, and graded by the National Board of Examiners in Optometry or any other organization approved by the board." Because the statutory language is clear, the opinion applies the rule that an unambiguous statute "must be accepted as written" (Bell v. Bell), and concludes the Board could accept OEBC scores by amending 201 KAR 5:010.
The second part turns on Kentucky's administrative-regulation statutes. KRS 13A.130 prohibits an agency from using an internal policy, memorandum, or other action to modify a statute or regulation, and declares any such modification "null, void, and unenforceable." Only duly promulgated regulations carry the force of law (Sprouse v. Commonwealth). The Board's COVID-era waiver of Part III and its alternative testing were adopted by resolution at Board meetings in 2020 and 2022, bypassing the notice-and-comment (KRS 13A.270), regulatory-impact-analysis (KRS 13A.240), and subcommittee-review (KRS 13A.290) requirements. The opinion analogizes to Gobert, where a department's attempt to reclassify positions by memorandum was invalid, and concludes the waiver had no force and effect of law, requiring the Board to review affected licensees.
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2025-13.pdf
Original opinion text
October 1, 2025
OAG 25-13
Subject: Whether (1) the Kentucky Board of Optometric Examiners has authority to amend 201 KAR 5:010 to accept examination scores for licensure other than from exams administered by the National Board of Examiners; and (2) the Kentucky Board of Optometric Examiners exceeded its legal authority in waiving licensure requirements.
Requested by: Senator Stephen Meredith, Kentucky Senate, District 5
Written by: Aaron J. Silletto, Executive Director, Office of Civil and Environmental Law
Syllabus: It is (1) within the authority of the Kentucky Board of Optometric Examiners to accept examination scores from other jurisdictions, and (2) beyond its authority to waive licensure requirements absent proper regulatory procedures.
Opinion of the Attorney General
Senator Meredith has asked this Office to opine on the authority of the Kentucky Board of Optometric Examiners (the "Board") with respect to licensing. Specifically, Senator Meredith asks whether the Board has authority to (1) allow examination results from jurisdictions outside the United States and (2) waive licensure requirements without first amending the applicable regulation.
I. The Board has authority to allow written exam results from non-U.S. jurisdictions.
The Board has amended 201 KAR 5:010, which governs licensure requirements for the practice of optometry in Kentucky, to allow results from written exams administered by the Optometry Examining Board of Canada ("OEBC") in lieu of Part 1 of the National Board of Examiners in Optometry ("NBEO") results. 201 KAR 5:010 § 1(1)(e). Previously, subsection (1)(e) stated, "A person wishing to apply for a license to practice optometry shall submit to the board . . . [n]ational board results." The Board has not exceeded its authority in amending the regulation to accept OEBC scores for licensure.
Through KRS Chapter 320, the General Assembly has given the Board broad authority. The Board is directed to "promulgate reasonable administrative regulations and do any and all things that it may deem necessary or proper for the effective enforcement of this chapter and for the full and efficient performance of its duties hereunder and the reasonable regulation of the profession of optometry." KRS 320.240(4). Specifically, the General Assembly directed that "[t]he administrative regulations shall include the classification and licensure of optometrists by examination or credentials." Id.
KRS 320.250 establishes eligibility parameters that must guide the Board's regulations. Under KRS 320.250(1), "[l]icenses to engage in the practice of optometry shall be issued only to those . . . who successfully pass examinations conducted or approved by the board at a time and place fixed by the board." Licensure examinations "may consist of written, clinical, or practical examinations and shall relate to the skills needed for the practice of optometry in this Commonwealth." KRS 320.250(2). In administrating the examination requirement, the Board may:
(a) Prepare, administer, and grade the examination;
(b) Accept the scores of the applicant from an examination prepared, administered, and graded by the National Board of Examiners in Optometry or any other organization approved by the board as qualified to administer the examination; and
(c) Require passage of an examination on Kentucky optometric law.
KRS 320.250(2)(a)–(c) (emphasis added).
The plain language of the statute clearly entrusts the Board with authority to determine which examinations are capable of adequately testing the Commonwealth's optometrists. The Board may accept scores from the NBEO, as had been the practice under the prior version of 201 KAR 5:010, but it may also accept examination scores from "any other organization approved by the board." KRS 320.250(2)(c).
Where statutory language is clear, unambiguous, and expresses the legislative intent, "there is no room for construction and the statute must be accepted as written." Bell v. Bell, 423 S.W.3d 219, 223 (Ky. 2014). Here, the statutory language clearly indicates the General Assembly has given the Board authority to accept scores from an examination administered by "any" organization the Board approves.
Opponents of the amendment to 201 KAR 5:010 § 1(1)(e) to allow OEBC scores argued the OEBC examination is deficient because it does not "relate to the skills needed for the practice of optometry in this Commonwealth" as required by KRS 320.250(2). It is true that the Board cannot ignore the requirement in KRS 320.250 that "[t]he examinations . . . shall relate to the skills needed for the practice of optometry in this Commonwealth." But the determination of what skills are needed for the practice of optometry in Kentucky is to be made by the Board.
The General Assembly has granted the Board the "sole authority to determine what constitutes the practice of optometry" in the Commonwealth. KRS 320.240(7); see also OAG 24-10. Therefore, it logically follows that the Board is the entity with authority to determine the "skills needed for the practice of optometry in this Commonwealth." KRS 320.250(2); see KRS 320.240(6) ("Nothing in this chapter shall be construed as allowing any agency, board, or other entity of this state other than the Kentucky Board of Optometric Examiners to determine what constitutes the practice of optometry."); KRS 320.240(7) ("The board shall have the sole authority to determine what constitutes the practice of optometry and sole jurisdiction to exercise any other powers and duties under this chapter."). In amending its own regulations to accept scores from the OEBC, the Board has seemingly concluded that the OEBC does test those skills needed to practice optometry in the Commonwealth. It is not for this Office to question the Board's conclusion.
Thus, it is the opinion of this Office that the Board has acted within the powers granted to it by the General Assembly in amending its regulations to accept OEBC examination scores for licensure. Nevertheless, should the General Assembly believe the Board has wrongly exercised the powers granted to it, the General Assembly still possesses the power to restrict or revise the Board's authority by enacting further statutory guidelines. Ky. Const. § 29; see also Legislative Rsch. Comm'n ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984) (emphasizing that the General Assembly is the sole legislative branch of government and that it has the right to withdraw delegation of that power).
II. The Board acted beyond its authority in waiving licensure requirements without adhering to KRS Chapter 13A.
As discussed in Part I of this Opinion, in 201 KAR 5:010, the Board has promulgated a regulation on licensure as the General Assembly instructed in KRS 320.240(4). The General Assembly requires applicants for licensure to "successfully pass examinations conducted or approved by the board." KRS 320.250(1). In 2020 (and until August 2025), 201 KAR 5:010 § 1(1)(e) required an applicant for licensure to provide NBEO results. The regulation did not, at that time, allow an applicant to use any alternative examination results. Id.
Yet, apparently, the Board approved licenses for some applicants without receiving all parts of the applicants' NBEO results. In response to a request for information, the Board explained to the Office that, during the COVID-19 state of emergency, the Board "temporarily waived the requirement that prospective licensees pass Part III of the National Board exam, which mandated completion of an in-person test at an out-of-state location." To replace Part III of the exam, the Board "instituted alternative testing measures." These changes to the licensure requirements were made via resolutions presented at Board meetings on September 17, 2020 (initially authorizing the waiver) and November 4, 2022 (extending the waiver through 2023). There is no evidence of the Board promulgating a regulation—emergency or otherwise—to effectuate the waiver or to allow the alternative testing.
The General Assembly has expressly prohibited an administrative body from "modify[ing] a statute or administrative regulation" via its own "internal policy, memorandum, or other form of action." KRS 13A.130(1)(a). In fact, any such modification "is null, void, and unenforceable." KRS 13A.130(2). Only "[d]uly promulgated administrative regulations have the 'force and effect of law.'" Sprouse v. Commonwealth, 662 S.W.3d 304, 307 (Ky. App. 2023).
In waiving the requirement for Part III of the exam results and allowing alternative testing, the Board sought to "modify a[n] . . . administrative regulation." Resolutions of the Board—like the ones passed at its 2020 and 2022 meetings—are internal actions that are not subject to notice and comment requirements or any of the statutory mandates in place for promulgating administrative regulations. See KRS 13A.270 (requiring a notice and comment period); KRS 13A.240 (requiring the promulgating agency to prepare a regulatory impact analysis); KRS 13A.290 (requiring review by the Administrative Regulation Review Subcommittee). Such resolutions, therefore, cannot modify a regulation, and the Board's attempt to use them to change the exam requirements was invalid. See Commonwealth, Educ. & Humanities Cabinet, Dep't. of Educ. v. Gobert, 979 S.W.2d 922, 926 (Ky. App. 1998) (holding that the Department of Education's attempt to reclassify positions via memorandum was invalid).
As such, the waiver and allowance for alternative testing were without the force and effect of law. It is further the opinion of this Office that any person who applied for a license to practice optometry using the waiver and alternative testing did not comply with the relevant regulations.
In our request for information, the Office asked the Board whether "there are any optometrists currently working based on a waiver" and whether those who were licensed under the waiver have since complied with the full licensure requirements provided in 201 KAR 5:010. In response, the Board stated that, "[i]n the Board's opinion, no Kentucky-licensed optometrist is providing services based upon a blanket waiver of testing requirements; all licensees have either passed Part III of the National Board exam, or successfully completed the alternative testing measures instituted by the Board during the Covid-19 state of emergency." But, as discussed above, the "alternative testing measures" were and are invalid as a matter of law under KRS 13A.130. Accordingly, the Board must review the licensure of those optometrists who were licensed under the waiver and alternative testing measures to ensure they have met the licensure requirements as established in 201 KAR 5:010.
Russell Coleman
Attorney General
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law