Court-appointed official deems signatures at heart of Arkansas scope saga invalid

Invalidated signatures once again threaten to derail an ophthalmologist-led effort to overturn Arkansas' 2019 optometric scope of practice law, but optometry's advocates can't afford to let up in a fight for the profession's future.

In a report compiled for the Arkansas Supreme Court, a court-appointed special master determined nearly 52,000 of the 64,027 signatures collected on behalf of a ballot question committee, "Safe Surgery Arkansas," shouldn't be counted by the secretary of state's office on the grounds that such signatures were procured by paid canvassers not certified as having passed a criminal background check. The remaining 12,116 signatures, therefore, do not meet the 53,491-threshold necessary to trigger a referendum, the report notes. However, the report findings are pending decision by the state's highest court, which might not come until later this fall.

"We are pleased with the final report," says Vicki Farmer, chairperson for Arkansans for Healthy Eyes, a coalition of doctors of optometry and patients supporting Arkansas' scope of practice law (formerly Act 579). "The findings speak for themselves-the opposition did not follow petition requirements, leaving 51,911 signatures invalid, and therefore the measure does not qualify for the ballot."

Posted to the court docket Monday, the 22-page report from retired circuit judge Mark Hewett, a special master appointed by the state's Supreme Court in April, concluded that a list of paid canvassers submitted to the secretary of state's office from June 13, 2019, onward did not certify that the canvassers had passed a federal criminal background check. Only eight of the 85 paid canvassers were certified to the secretary as having passed a criminal background check before beginning canvassing.

The special master's report notes this violation triggers the "do not count requirement" under Arkansas' elections code and, therefore, the bulk of signatures requires disqualification. The state Supreme Court will now take the special master's report into consideration before making its own decision.

"Of course, we will await the Court's final say in the matter, but in the meantime, we remain hopeful Arkansas' patients will finally be able to benefit from the improved access to quality eye care Act 579 was put in place to provide," Farmer says.

Arkansas' hard-fought scope law

Signed into law March 27, 2019, by Gov. Asa Hutchison, the bipartisan-support scope legislation (Act 579) amended the state's optometric scope of practice act to permit ophthalmic procedures in keeping with optometric education-selective laser trabeculoplasty and YAG laser capsulotomy, certain injections (excluding intravenous and intraocular), removal of lid lesions, and chalazion incision and curettage-but still prohibited doctors of optometry from performing cataract surgery, radial keratotomy surgery and selling prescription drugs. Nonetheless, opposition immediately coalesced in the form of the ophthalmologist-led "Safe Surgery Arkansas."

In June 2019, the opposition group challenged the scope law and began collecting signatures to place the law on the November 2020 general election ballot. Initially, the group fell short of that mark when the secretary of state's office invalidated more than 61,000 of 84,000 signatures collected by unqualified canvassers; the invalidation stemming from a state law passed concurrently to Act 579 that required canvassers to file affidavits.

The issue came before the state's Supreme Court, where it was disclosed that a state elections official alleged unethical behavior concerning the affidavits in question. However, the court later ruled 4-3 that the secretary of state's office must count the signatures thereby placing the question on the November ballot. Pending decision of the high court, the measure to repeal Act 579 may appear on the November ballot when turnout is likely to be high due to a presidential election.

Despite the recent special master's report, "Safe Surgery Arkansas" released a statement to indicate the group remains confident the Supreme Court will allow the signatures in question to stand and continue forward with the referendum. By mid-June, "Safe Surgery Arkansas" had raised nearly $2 million in monetary contributions across 30 states to support their campaign.

Such is the case, Arkansans for Healthy Eyes is prepared for all possible outcomes and continues to challenge the ballot initiative for November's general election. Nationwide, doctors of optometry, state associations and the AOA have helped raise $780,000 in monetary contributions for Arkansans for Healthy Eyes, but the coalition still needs the profession's support.

"Optometry is fighting a well-oiled ophthalmology machine that has one purpose-to maintain a monopoly on patient care," says William T. Reynolds, O.D., AOA president. "Our fellow doctors in Arkansas are experiencing the same tired and underhanded tactics that ophthalmology has used for decades and we need all hands on deck to secure this win for the future practice of optometry." 

Support optometry's future

As a profession, optometry delivers 85% of the primary eye health care in America with doctors of optometry practicing in counties that make up 99% of the U.S. population. Such accessibility is why the AOA and state associations affirm that optometry is well-positioned, highly educated and qualified to provide these kinds of expanded eye health and vision care services. However, restrictive state laws based on outdated and tired misrepresentations of optometry's education and capabilities have created self-imposed barriers to maintain a status quo.

Optometry's advocates continue working tirelessly to modernize state scope of practice statutes that allow doctors of optometry to practice at the top of their education and training and provide communities with contemporary optometric care.

"Today, only a handful of states permit optometry to practice the quality medical care we are trained, willing and able to provide, but for our health care system to work effectively and efficiently, every practitioner needs to practice to the highest level of their training and scope," Dr. Reynolds says.

"The AOA will continue helping state affiliates work toward advancing their respective scope of practice laws so that Americans can benefit from 21st-century optometric eye health and vision care."

Here's how the profession can immediately support Arkansas' fight and future scope battles:

• Contribute to the Arkansans for Healthy Eyes campaign to help assure optometry's advocates can make a stand and positively affect the future of optometric care in America. Contributions also may be made by check to Arkansans for Healthy Eyes, PO Box 3521, Little Rock, Arkansas, 72203.