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.1 The implant is preloaded in a
1
DURYSTA, https://www.durysta.com/#about-durysta (last visited Sept. 19, 2024).Opinion of the Attorney General 24-10
October 9, 2024
Page 2
2
sterile applicator with a 28-gauge needle tip.2 Then the needle is inserted into the
cornea and through to the anterior chamber where the implant is released.3 The
implant releases medicine as it dissolves over time.4
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.5
2
Ahmad A. Aref, Durysta (Bimatoprost Implant), AMERICAN ACADEMY OF OPHTHALMOLOGY,
https://eyewiki.aao.org/Durysta_(Bimatoprost_Implant).
3
Id.
4
Id.
5
Compare https://www.hcpcsdata.com/Codes/J (providing J7351 for “Injection, bimatoprost,
intracameral implant, 1 microgram”) with supra note 1 (identifying Durysta as a bimatoprost
intracameral implant of 10 micrograms).Opinion of the Attorney General 24-10
October 9, 2024
Page 3
3
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.6 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—
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. It does not seem federal regulations
exclude procedures coded under HCPCS codes from the practice of optometry. See, e.g., Health
Insurance Reform: Standards for Electronic Transactions, 65 Fed. Reg. 50312 at 50370, § 162.1002(e)
(Aug. 17, 2000), available at https://www.govinfo.gov/content/pkg/FR-2000-08-17/pdf/00-20820.pdf
(establishing that, for “vision services,” the Secretary adopts the “combination” of HCPCS and CPT-4
code sets as the standard medical data code sets); Understanding Optical Billing Codes, PECAA
https://www.pecaa.com/community/blog/billing-coding/understanding-optic…
(explaining that “optometry practices use ICD codes for diagnoses, the CPT codes for procedures, and
the HCPCS codes for remaining procedures and products not covered in CPT”). Rather, the issue is
that the Medicare administrator believes Durysta should be coded like other similar implant
procedures and, as an implant, is not within the permissible scope of optometry in Kentucky.Opinion of the Attorney General 24-10
October 9, 2024
Page 4
4
and not any other entity7—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
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.