Can a North Carolina licensed optometrist provide post-operative care to a cataract surgery patient without being charged with the unauthorized practice of medicine?

Plain-English summary

The Executive Director of the Board of Medical Examiners brought a turf battle between two state professional boards to the AG. Federal Medicare regulations governing aphakia (the absence of the natural eye lens after cataract surgery, with or without an artificial implant) allowed an optometrist to bill for post-surgical follow-up, but only if the optometric services fell within the state-law scope of practice of optometry. Did North Carolina law permit licensed optometrists to provide post-cataract-surgery follow-up, or was that the unauthorized practice of medicine?

Assistant Attorney General Robert R. Reilly answered: the routine follow-up procedures fall within the practice of optometry and do not constitute the unauthorized practice of medicine.

Two statutes structured the analysis. N.C.G.S. § 90-18 defines the practice of medicine and makes the practice of medicine without a license unlawful. It identifies certain "allied occupations" (under Chapter 90 generally) as exempt from the unauthorized-practice-of-medicine prohibition when they stay within their statutory scope. N.C.G.S. § 90-114 defines the practice of optometry. Surgery is expressly excluded from optometry; everything else within the statutory definition is allowed.

The cataract surgery itself is performed by an ophthalmologist (an MD): opening the eye, removing the cloudy natural lens, inserting the prosthesis, closing the wound. The ophthalmologist examines the eye after surgery to confirm it is healing properly. If complications appear, the patient stays with the ophthalmologist. If there are no complications, the patient is ordinarily released.

The question is what happens after that release. The follow-up procedures the AG examined include:

• Determining the patient's unaided visual acuity (how well they see without glasses)
• Examining the eye and its surrounding structures
• Performing a slit-lamp (biomicroscopic) external eye exam
• Performing ophthalmoscopic examination of the internal eye
• Measuring intraocular pressure with a tonometer
• Using a phoropter (refractor) to test for corrective-lens needs
• Prescribing corrective lenses if needed

The AG worked through the § 90-114 definition of optometry and concluded that each of these procedures fit. § 90-114 authorizes optometrists to examine the eye and its adnexa, diagnose abnormal conditions, refer for consultation or treatment, employ instruments and pharmaceutical agents, and prescribe and apply prosthetic devices. The follow-up procedures involve no surgery (no invasion of the body), so the surgery exclusion in § 90-114 does not bar them.

The AG agreed with the Medical Examiners on important limits. Three things remain MD-only and may not be done by an optometrist:

1. Administration of intravenous fluids and medications.
2. Removal of sutures (a surgical procedure under any sensible definition).
3. Management of complications (which by definition exceed routine post-op care and may require surgical intervention).

The Board of Medical Examiners had argued for a structural rule: that post-op care is part of "the surgery" and therefore inherently medical. The AG rejected that as too broad. Chapter 90 is structured by granting the full field of health care to MDs and then carving out specified areas for allied professions. Within the carved-out area, the allied profession is authorized to act; the MD's general grant does not reach back in. The cataract surgeon owns the surgery; the optometrist owns the follow-up that fits within § 90-114, provided no complications require the surgeon's attention.

The opinion deliberately did not address ethical concerns about referral relationships and fee-splitting between optometrists and ophthalmologists. The Board of Medical Examiners had not asked those questions, and the AG declined to volunteer answers.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. N.C.G.S. § 90-114 (the optometry practice act) has been amended multiple times since 1986, expanding the scope of optometric practice to include the use of additional pharmaceutical agents and the treatment of certain glaucoma conditions. The basic surgery exclusion remains. The Medicare aphakia billing framework has also evolved. A modern optometrist providing post-cataract-surgery follow-up should consult both the current statute and the current Medicare local coverage determination.

Background and statutory framework

The AG opinion is one of many from the 1980s and 1990s that mediated boundary disputes between the licensed professions in Chapter 90. As optometry expanded its scope (use of diagnostic and later therapeutic pharmaceutical agents, treatment of certain conditions) and as medicine's near-monopoly on eye care began to erode, the Board of Medical Examiners frequently pressed the AG and the courts on what optometrists could and could not do.

The cataract follow-up question was particularly important in 1986 because of the financial implications. Medicare reimbursement for follow-up care after cataract surgery is substantial, and the question of whether the ophthalmologist or a referred optometrist could bill for the post-op visits affected the economic relationship between the two professions. The federal Medicare regulations made the answer turn on state law: state-law scope of optometry determined whether an optometrist could bill federally.

The AG's analysis is firmly grounded in the statutory text. § 90-114's definition of optometry uses broad terms ("examine the human eye," "diagnose, treat, and refer," "employ instruments, devices, pharmaceutical agents and procedures") that comfortably cover non-surgical eye examination and lens prescription. The surgery exclusion is the key boundary. The AG read "surgery" reasonably narrowly to mean "invasion of the body," which left ordinary clinical examination outside the surgery exclusion.

The structural argument the AG used at the end is also worth noting. Chapter 90 "Medicine, Allied Occupations" creates a regulatory scheme where medicine has the default authority, but each allied profession (optometry, dentistry, podiatry, etc.) has a carved-out area where its statute controls. The MDs argued the carving-out was narrow and that everything not explicitly granted was reserved to medicine. The AG read the carving-out the opposite way: the allied profession statute is interpreted to give meaningful authority, and medicine's general grant does not retroactively contract the allied scope.

Common questions

Can an optometrist remove sutures if the patient is convenient to the optometrist but not to the ophthalmologist?

No. The opinion explicitly states that suture removal is outside optometry's scope. The patient would need to return to the ophthalmologist (or another physician) for suture removal even if it is less convenient.

What if the optometrist detects a complication during the follow-up?

The patient should be referred back to the ophthalmologist. The optometrist may not manage the complication. The AG opinion treats referral as a core optometric function under § 90-114, so the referral itself is within scope.

Can the optometrist prescribe an oral antibiotic if a minor post-op infection is suspected?

The 1986 framework allowed optometrists to use pharmaceutical agents only in collaboration with a medical doctor. Subsequent amendments to § 90-114 have expanded optometric pharmaceutical authority in North Carolina. A modern optometrist should consult the current statute and any board-issued formulary.

Does this opinion apply to other types of eye surgery (LASIK, glaucoma surgery, retinal surgery)?

The opinion is framed in terms of cataract surgery specifically, but the structural analysis would extend to other types of eye surgery where the post-op procedures fall within § 90-114's definition. Each surgery type requires its own analysis. Routine follow-up that involves clinical exam without invasive procedures is likely within optometric scope; follow-up that involves IV medications, suture management, or complication treatment is not.

Can the ophthalmologist contract with the optometrist for shared post-op care?

The opinion did not address contracting arrangements directly (the AG explicitly declined to address fee-splitting). Modern co-management agreements are common in cataract care, with the surgeon performing the surgery and an optometrist providing follow-up under a written referral / co-management plan. Such arrangements are governed by separate ethical and regulatory rules (Stark law for federal billing, state medical practice rules, etc.) beyond the scope of this AG opinion.

Source

• Landing page: https://ncdoj.gov/opinions/optometrists-post-operative-care-of-cataract-surgery-patients-practice-of-medicine/

Citations

• N.C.G.S. § 90-18 (practice of medicine; allied occupation exceptions)
• N.C.G.S. § 90-114 (practice of optometry; surgery excluded)

Original opinion text

Requested By:

Bryant D. Paris, Jr. Executive Director Board of Medical Examiners

Question:

Does post-operative care of cataract surgery patients by a licensed optometrist constitute the unauthorized practice of medicine?

Conclusion:

The procedures identified herein as components of post-operative care of cataract surgery patients fall within the definition of optometry when done by a licensed optometrist and do not constitute the unauthorized practice of medicine.

The question presented is whether post-operative care of cataract surgery patients by a licensed optometrist constitutes the unauthorized practice of medicine. The question arises from Medicare regulations and policies regarding optometric services of aphakia. The regulations and policies allow for surgical follow-up by optometrists provided that the services performed are within the scope of practice of optometry as determined by state law. Related questions concerning ethical considerations of referral and fee-splitting between opthalmologists and optometrists were not asked by the Board of Medical Examiners and are not addressed in this opinion

Aphakia is defined for purposes of Medicare as the absence of the natural crystalline lens of the eye whether or not an intraocular lens has been implanted. Opening and entry into the eye is performed by an opthalmologist who removes the cloudy natural lens, inserts the prosthesis (artificial lens) and then closes the entry would. The opthalmologist examines the eye after surgery to determine whether the eye is healing without complications. If there are complications, the patient remains under the care of the opthalmologist. If there are no complications resulting from the surgery, the patient is ordinarily released from the care of the opthalmologist. If there are no complications, the question is whether and within what limitations an optometrist may provide post-operative care, such as determining the patient's unaided visual acuity, examining the eye and its adnexa (the surrounding structures), performing a slip lamp (biomicroscopic) examination of the external eye, performing a monocular opthalmoscopic and binocular indirect opthalmoscopic examination of the internal eye, determining the intraocular pressure by use of a tonometer, employing a phoropter (refractor) to determine whether corrective lenses are necessary for optimum vision, and if so, to prescribe the proper lens, and other ancillary procedures.

The Board of Medical Examiners submits that since surgery is excluded from the definition of optometry in G.S. 90-114, post-operative care is beyond the scope of practice of optometry because it is part of the surgery exclusion. The Board argues that post-operative care is a medical matter in that it involves a full range of complex medical judgments and is an essential part of the surgery process. The Board continues that the administration of intravenous fluids and medications and the removal of sutures is beyond the scope of practice of optometry. This Office agrees with the position of the Board of Medical Examiners concerning administration of intravenous fluids and medications and the removal of sutures and believes that the Board of Examiners in Optometry does not contest these matters. The Board of Medical Examiners also submits that prompt decision-making and use of medication during post-operative care does not permit collaboration by an optometrist with a medical doctor which is the prerequisite for prescribing medication, other than topical pharmaceutical agents, by an optometrist.

The Board of Examiners in Optometry takes the position that the practice of optometry as defined in G.S. 90-114 is a recognized exception under G.S. 90-18 to the unauthorized practice of medicine. The Board contends that pursuant to G.S. 90-114 an optometrist, within his or her area of specialized practice, may examine the human eye and its adnexa by any method; may diagnose, treat and refer for consultation or treatment any abnormal condition of the human eye and its adnexa; may employ instruments, devices, pharmaceutical agents and procedures when investigating, examining, treating, diagnosing or correcting visual defects or abnormal conditions of the human eye or its adnexa; and may prescribe and apply pharmaceutical agents and prosthetic devices to correct, relieve, or treat defects or abnormal conditions of the human eye or its adnexa. The Board contends that the scope of practice of optometry includes within it the procedures previously listed as components of post-operative care where there are no complications resulting from the surgery.

Surgery is a principal part of the practice of medicine under G.S. 90-18. Surgery is also specifically excluded from the definition of optometry under G.S. 90-114, which itself, when done by a licensed optometrist, is exempted from the unauthorized practice of medicine under

• G.S.
• 90-18. Therefore, provided there are no complications resulting from the surgery, if a procedure is included within the definition of optometry and not performed by means of surgery, the procedure, when done by a licensed optometrist, does not constitute the unauthorized practice of medicine but falls within the practice of optometry. Although the term "surgery" is not defined in G.S. 90-18, the breadth of the definition cannot prohibit the performance by an optometrist of those procedures reasonably included within the definition of optometry, under circumstances where there are no complications resulting from the surgery. The procedures identified as components of post-operative care fall within G.S. 90-114 in that they are done (i) to examine the human eye, (ii) to diagnose the condition of the eye, (iii) to refer the patient back to the opthalmologist for consultation or treatment (such as administration of intravenous fluids and medications and the removal of sutures), (iv) to investigate, examine, treat, diagnose or correct visual defects and abnormal conditions by the employment of instruments, devices, pharmaceutical agents and procedures, and (v) to prescribe and apply lenses. Furthermore, the procedures do not involve an invasion of the body so as to constitute surgery.
• G.S.
• 90-114 provides that an optometrist may use and prescribe pharmaceutical agents upon collaboration with a medical doctor. The statute does not contain any exclusion for postoperative care.

The premise of the Board of Medical Examiner's argument is that post-operative care cannot be divorced from the surgical operation, which all agree falls within the practice of medicine. However, the structure of Chapter 90 of the General Statutes, entitled "Medicine, Allied Occupations", grants the entire field of health care to physicians licensed to practice medicine and then carves out specified areas for each of the allied occupations. It is the opinion of this Office that the procedures identified herein as components of post-operative care fall within the definition of optometry when performed by a licensed optometrist, and do not constitute the unauthorized practice of medicine where there are no complications as a result of the surgery.

LACY H. THORNBURG Attorney General

Robert R. Reilly Assistant Attorney General