News Stream

Optometrist cannot dodge branch office license requirements by affiliating with ophthalmologist, court finds

Optometrists in California who want to open a second office are not exempt from the state's branch office requirements, even if the new business location would combine the services of licensed optometrists and ophthalmologists, a state appeals court ruled in October.

(Rudick v. State Board of Optometry)

The licensee in this case, optometrist Anthony Rudick, is a 49% owner in a clinic chain, Ridge Eye Care. In November 2011, Rudick submitted an application for licensure for a Ridge location in the town of Magalia. The board denied the application.

Rudick, said the board, whose principal place of practice was another Ridge Eye Care location in the town of Paradise, as an optometrist with a financial interest in the new location but his principal place of practice elsewhere, would need to obtain a special Branch Office License. Rudick appealed that decision, and the case eventually rose to a state Court of Appeals.

Under California law, optometrists with an ownership interest in a practice must obtain a branch office license for any “offices” other than their principal place of practice. Rudick, in a somewhat novel claim, argued that the meaning of “office” in the relevant laws encompassed only other offices whose principal activity was the practice of optometry.

Ridge Eye Care, like many offices of its kind, combines both optometrist and ophthalmologist services, and Rudick claimed that such a combined business was thus not subject to the state’s branch office requirements. The board contended that any place where optometry is practiced is an “office” covered by branch requirements.

The court, in an October 11 decision, agreed with the board, with Judge Arthur Wick writing that the board’s “interpretation is firmly rooted in the actual language of the statute.”

“Simply put, ‘office’ means any office where optometry is practiced. Plaintiffs’ interpretation, on the other hand, would have us read additional language into section 3077 . . . We decline to insert any restriction into an otherwise unambiguous provision.”

Rudick made a second argument, claiming that, because both a section of California’s Business and Professions Code which permits ophthalmologists to employ optometrists, as well as relevant sections of the state’s Corporation Code —newer pieces of legislation than the provision requiring branch licenses—do not contain branch restrictions, the board’s interpretation requiring a branch office license for combined offices could not be reconciled with those laws.

The court rejected this argument, as well. “The Legislature, when expanding the law to allow for closer business and working relationships

between optometrists and other medical or health professionals, could easily have amended section 4077 to narrow the definition of ‘office’ or to limit or remove its branch office licensing requirements, as plaintiffs now propose,” wrote Judge Wick.

The legislature’s decision not to do so thus led the court to the conclusion that the new laws were not meant to alter the branch requirements.

Finally, the court acknowledged that the branch office requirement would create burdens on firms wanting to employ an optometrist to work at multiple locations, but concluded the incidental hardship was not within its power to remedy, since that hardship was created by statute.