One door vs. two door debate continues

Last month, the Tennessee Board of Optometry ruled that optometrists located inside retail stores must separate their offices from the retailer. The rule, which went into effect this month, will require all ODs and retailers make the necessary physical changes by July 1.

According to The Commercial Appeal, more than 10 Walmart and Sam’s Club locations in Tennessee will be affected by the new rule. The rule is intended to protect the independence and professional judgment of the ODs leasing the space and ensures the ODs can set their own hours.

The Board rejected a request to adopt an emergency rule to postpone the rule’s effective date until July 2016.

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"Tennessee has historically been a two-door state," says Mark J. Uhler, OD, president of the Energeyes Association for Corporate-Affiliated Optometrists. "We understand the current ruling modifies that rule slightly and stipulates that the optometrist's office has no direct access to the optical without some sort of physical barrier.

No door should open directly to the optical. Ultimately this is a move by the Tennessee Board of Optometry to create a greater physical separation between the clinical/professional service from a retail operation. I applaud this move and the Board for spearheading it."

The Tennessee Association of Optometric Physicians chose not to comment for this story.

Physical and professional separation

The new rule in Tennessee has reignited a debate across the country about similar rules creating a separation-both physical and professional-between ODs and retail spaces.

“We have had this rule in Texas for many years,” says Bill C. Thompson, OD, of Richardson, TX, in a conversation that originated on online discussion forum ODWire.org. “The intent, along with other rules, is to keep the retail optical from controlling the doctor's practice. Whether this is effective can and has been debated for years.”

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Court to hear case in California

While many states have similar rules, according to Craig Steinberg, OD, JD, California has some of the strongest laws.

One such law states that ODs cannot have any membership, proprietary interest, coownership, landlord-tenant relationship, or any profit-sharing arrangement in any form, directly or indirectly, with any optician. Another law states that the ODs must own and have exclusive control of their practices.

It also states that patient records are the sole property of the optometrist and are free from any involvement of anyone not licensed to practice optometry.

And finally, it states that an optometrist’s name or practice cannot be linked in advertising or in any other manner with that of a commercial concern from whom the OD is leasing space.

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“I am currently representing two optometrists suing Costco (which is an optician) and an intermediary corporation asserting that the presence of optometrists inside Costco stores in California violate these laws and seeking an order barring optometrists from practicing inside Costco in California,” says Dr. Steinberg in the ODWire discussion.

Who’s in control?

So can a retail space exercise control over an OD’s practice? Dr. Thompson says yes and no, but it’s best if the two entities have a good relationship.

“They can't tell you how or when to schedule patients, who to hire for your staff, how to answer the telephone, etc., but if they cancel your lease, you can't practice there anymore, so you do try to work together and not make them angry over small stuff,” he says.