Political deal let optometrists do eye injections, records show

Staff WriterSeptember 2, 2006 

  • Here are the major players in the optometry-medical board negotiations:

    JIM BLACK, speaker of the House, a Democrat from Mecklenburg, and an optometrist

    ANDREW WATRY, executive director of the N.C. Medical Board until 2003

    DAVID HENDERSON, Watry's successor

    JOHNNY LOPER, lawyer for the N.C. Board of Optometry

    GEORGE MILLER, former Democratic representative from Durham

    THOMAS MANSFIELD, lawyer for the medical board

    JACK ROBINSON, executive director of optometry board

    M. SCOTT EDWARDS, an optometrist who runs the state optometry society's political action committee. He and Black are embroiled in an unrelated campaign fundraising scandal.

Six years ago, Andrew Watry sought legislation to help the N.C. Medical Board do a better job of policing bad doctors. Watry, the medical board's executive director, wanted tougher regulations and a fee increase to hire more staff.

But correspondence released to The News & Observer shows that Watry could not get his legislation through the state House until the board gave the state's roughly 1,000 optometrists something in return -- the right to perform five kinds of eye-care procedures that included injections into and near the eyes.

The correspondence shows that House Speaker Jim Black, a Mecklenburg Democrat and an optometrist, was kept aware of negotiations on the issue and sought to help the optometrists.

Black, through a spokeswoman, said he did nothing to hold back the medical board's legislation.

Deal-making occurs all the time in the General Assembly, and is an important part of how the legislature works. But the correspondence about the deal with the optometrists is unusual for its candor and offers a look into the practice of North Carolina politics that the public rarely sees.

The correspondence was merely part of a long turf battle between physicians and optometrists over who could perform the potentially lucrative procedures.

In most states, the procedures are typically done by ophthalmologists, who are medical doctors; optometrists are not.

The fight did not end until last year, on terms that generally favored the optometrists.

The N.C. Board of Optometry first requested approval for the procedures in 1998.

Watry discussed the concession on June 28, 2000, in a voice mail to the optometry board's lawyer, Johnny Loper, which Loper's secretary transcribed. The News & Observer obtained the transcription and other correspondence from the optometry board.

"As you know, we're in the throes of trying to get some legislation down there, and of course the optometry issue is key to all this," Watry said.

The transcription goes on to refer to the procedures by their "CPT codes," a medical shorthand for Current Procedural Terminology codes, which practices use to bill for their work. It refers to then-Rep. George Miller of Durham, sponsor of the bill the medical board wanted, and to a consent agreement, a proposed treaty that would settle the dispute.

"I'm demonstrating to Mr. Miller that we are not [vacillating] in our approval of the CPT codes and for that purpose am producing a copy of a modified consent agreement."

The consent agreement would have given the optometry board authority over the five injections -- including one in the outer layer of the eye and another in the eyelids.

Watry was eager to get Loper's signature on the agreement so he could bring it to the legislature. "I hate to put you on the spot like this, but you know how things get in the frenetic last few minutes of legislation," Watry said in the voice mail. Loper signed the agreement.

The House passed the medical board bill 12 days later. The agreement fell apart, however, after the state Senate declined to pass the legislation. Soon afterward, the medical board backed out of its agreement with the optometry board.

But the agreement continued to haunt the medical board.

The optometry board sued the medical board in November 2003, saying it had made a valid agreement three years before. Last year, after a judge made a key preliminary ruling in favor of the optometrists, the two boards reached a settlement. It allowed optometrists to perform three of the injections immediately. Two others are subject to further discussion.

Ten days after the 2005 settlement was signed, other fee increase legislation that the medical board sought to help pay for increased regulation came to life in the General Assembly and passed both chambers.

Cynthia Hampton, a former president of the state ophthalmology society, said the correspondence suggests that the medical board bent to political pressure and gave optometrists the right to do procedures that could cause serious harm if done improperly. Hampton, an ophthalmologist from Henderson, led the society in 2000, and vigorously fought the agreement.

Optometrists are learning how to perform the injections in credentialing classes that cover a weekend, while ophthalmologists, who are medical doctors specializing in eye care, spend years in hospital residencies learning such techniques.

"I have to think that the political pressure was coming from the speaker," Hampton said. "Why would any legislator other than Speaker Black, who is an optometrist, care about these injection codes?"

She is not the only person who suspected Black used his political clout to force an agreement. Loper wrote in a 2003 e-mail message that Thomas Mansfield, the medical board's chief attorney, had the same suspicions.

"Mansfield said he thought that he could prove that the Speaker put pressure on the Medical Board to approve the 5 CPT Codes by threatening [through George Miller, or otherwise] to hold up the fee increase that Watry wanted passed," Loper wrote.

Mansfield said he recalled the discussion with Loper, but Mansfield does not think he made so strong a claim.

Black could not be reached for comment. His spokeswoman, Julie Robinson, said that Black did not pressure the medical board to allow the injections.

"He was not involved in the discussions between the Medical Board and the Optometry Board regarding the injections, and absolutely did not hold up the medical board fee bills in order to force the two Boards to settle their differences," Robinson said in a statement.

Jack Robinson (no relation to Julie Robinson), the longtime executive director of the optometry board, said he and his board did not strike a deal with Watry on the medical board legislation in 2000. Loper, the optometry board attorney, said he did not know whether any dealing took place. Miller, who lost a re-election bid in 2000, said he has no recollection of the negotiations involving the legislation.

Correspondence from the medical and optometry boards shows that the medical board knew that the optometrists saw they had a tremendous political advantage in having Black as House speaker.

Last year, Black inserted a provision in the state budget that required all children to receive a comprehensive eye exam before entering school. This year, lawmakers relaxed the requirement after complaints from school officials, parents and ophthalmologists.

The optometry board correspondence also shows that M. Scott Edwards, secretary treasurer of the state optometrists' political action committee, saw the medical board bill as a bargaining chip for optometrists to win the right to perform the injections. The correspondence of Edwards, who could not be reached for comment, shows he viewed Miller as the optometrists' agent for pressuring the medical board.

The correspondence does not make clear the extent of Black's involvement in negotiations over the injections issue, but it shows he was kept informed.

Watry faxed Black a copy of the proposed 2000 agreement, for example, and requested his input.

When the agreement disintegrated, the optometry board began planning its lawsuit.

The correspondence shows that in 2003, Black offered the optometry board the services of his legislative legal counsel, Linda Attarian. According to an e-mail message Loper wrote to Robinson at the time, Black would seek private funds to pay Attarian for the work.

Loper met with Attarian and told her she wasn't needed "to jump into a lawsuit," the e-mail message said. Attarian "seemed relieved," he added.

Attarian left the speaker's office last year to work for the N.C. Department of Health and Human Services. In a phone interview, Attarian said she told Black it wasn't a good idea for her to work on the lawsuit. "He agreed after I told him it would be a conflict of interest," she said.

Julie Robinson, Black's spokeswoman, said in the statement that Black asked Attarian to meet with optometry board officials to learn about the dispute and look for a legislative remedy to resolve it. She said Black never told Attarian to assist on the lawsuit.

Watry, the former medical board executive director, now works for the N.C. Department of Health and Human Services. He said the medical board's legislation was held hostage by the battle.

He said he did not see a public health issue with optometrists' performing the injections, and thought the ophthalmologists were more worried about a financial loss than the quality of health care.

Watry said he had little involvement with Black, other than the fax he sent Black of the proposed injections agreement.

Watry's successor at the medical board, David Henderson, and Mansfield said the correspondence suggests Watry and the medical board cut a deal with the optometrists in 2000. But they and other medical board officials who worked on the 2005 lawsuit settlement say there was no deal involving the fee increase the board won shortly after.

"We made it clear," Henderson said, "that we, as a board, were not going to get involved in anything that would be construed as deal-making."

Staff writer Dan Kane can be reached at 829-4861 or dkane@newsobserver.com.

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