Coverage for Optometrists

By Kimberly Wynkoop

OMIC Legal Counsel

Digest, Summer 2010

OMIC’s mission and value commitment are to meet the specific insurance needs of the changing ophthalmic practice of members of the American Academy of Ophthalmology. Academy members often employ optometrists in their practices. Therefore, in order to provide comprehensive medical professional liability insurance for these practices, OMIC offers coverage to employed optometrists.

Optometrists applying for coverage with OMIC must fill out the Application For Additional Insured Employed Optometrist. If approved, the optometrist will be named on the policyholder’s declarations page. The OMIC policy provides that coverage applies only to services within the scope of the optometrist’s training, licensure, and employment by the employer. If the optometrist has other employment or provides activities outside of his or her employment by the OMIC insured, he or she must maintain separate coverage for that.

Optometrists are covered by OMIC for their liability due to their own actions as well as those of persons acting under the optometrist’s supervision, direction, or control, so long as that person was acting within the scope of his or licensure, training, and professional liability insurance coverage, if applicable. Likewise, ophthalmologist insureds are covered for their vicarious liability exposure arising out of the actions of any persons, including optometrists (employed or otherwise), under their supervision, direction and control, so long as that person was acting within the scope of his or licensure, training, and professional liability insurance coverage, if applicable. Entity insureds and their owners are also covered for their vicarious liability for the actions of optometrists for whom they are found legally responsible.

Generally, OMIC offers coverage to optometrists at either shared limits with the employer or separate limits. Currently, the premium for shared limits is based on 5% of the ophthalmologist Surgery Class 3 premium. The premium for separate limits is 9% of the Surgery Class 3 premium. For policies effective on or after January 1, 2011, the rates will decrease to 3.5% and 6.5% of the Surgery Class 3 premium, respectively. Part-time discounts may be available for optometrists employed for fewer than 10 hours per week.

Optometrists who are not employed by insured ophthalmologists or entities must secure their own coverage from a provider other than OMIC. Optometrists who are employed by an OMIC insured but choose to obtain coverage elsewhere must maintain liability limits at least equal to the limits carried by the employing ophthalmologist or entity. Non-employed optometrists otherwise affiliated with the policyholder (e.g., via contract) are not required to carry the same limits as the policyholder, but it is recommended.

While OMIC does not require implementation of specific optometrist supervision guidelines as a condition of coverage, OMIC recommends that practices have a written protocol that clarifies conditions and situations that optometrists may manage independently, those requiring consultation with an ophthalmologist, and those that must be referred to an ophthalmologist (see the Hotline in this issue, as well as “Coordinating Care with Optometrists,” available at www.omic.com).

Optometrists who take call must follow written protocols and have appropriate backup. An ophthalmologist must always be available within a reasonable response time to take patient referrals in the event a situation arises that exceeds the optometrist’s scope  of expertise or legal scope of practice. If the optometrist takes call for a hospital or emergency room, coverage is subject to review by members of OMIC’s physician review panel. The optometrist must submit a copy of the hospital’s written call protocol for evaluation (see “Coordinating Care with Optometrists”).

Regarding postoperative care, OMIC’s policy permits optometrists to provide a portion of the outpatient postoperative care if the optometrist is clinically competent and lawfully able to provide the care, the patient has given written informed consent prior to surgery for the planned comanagement, and the delegated care is performed under the operating ophthalmologist’s supervision (see the lead article and “Coordinating Care with Optometrists” for more information).

Although at least one state permits optometrists to perform laser surgery, OMIC does not insure optometrists who perform surgery, whether laser or incisional. OMIC based this decision on the lack of data available on this liability risk and on OMIC’s assessment that it does not have the expertise to properly underwrite, rate, and administer claims arising from surgical procedures performed by optometrists. Due to the related vicarious liability risks, OMIC is not willing to extend coverage to any policyholder that employs optometrists who perform surgery or to any outpatient surgical facility at which optometrists operate. Coverage of optometrists who perform intraocular injections (if permitted by scope of practice laws) requires physician review.

Special rules for coverage of optometrists apply in Kansas, Nebraska, and Pennsylvania due to state patient compensation fund requirements. (See your policy or inquire with your underwriter for more details.)

Will OMIC insure my ancillary staff for fluorescein angiography?

Betsy Kelley, VP Products

Non-physician employees are covered for services they render within the scope of their employment, training, and licensure. Since laws vary from state to state, it is important to verify applicable scope of practice laws before permitting non-physician personnel to administer intravenous fluorescein dye. While all states allow unlicensed personnel to perform venipuncture, some impose specific training and certification requirements. Additional requirements may apply for the administration of fluorescein. For example, many states allow only licensed personnel, such as registered nurses, to administer intravenous dyes and medications due to their increased risk. Even if not mandated by state law, the practice should ensure that anyone responsible for administering IV fluorescein is properly trained and certified.

Regardless of who can lawfully administer the dye, a physician should be on site and immediately available when the injection is performed. In addition, two staff members should be present (either in the room with the patient or within shouting distance) during the procedure. These precautions are necessary since fluorescein angiography carries the rare but life-threatening risk of anaphylactic reaction. Should an emergency occur, one staff member can remain with the patient while the other calls for help; the physician can direct the resuscitation effort while awaiting the arrival of paramedics.

To assist insureds in the prevention of and improved response to the risks of fluorescein angiography, OMIC has developed risk management recommendations and a sample consent form for this procedure.

For more coverage questions, please refer to the Coverage Questions page.