AOA Legal Frequently Asked Questions

It is important that you understand the purpose of these FAQs is to impart some general legal information, but it is not a substitute for legal advice. Laws change and even if the law remains the same, the process of legal analysis requires a careful consideration of the facts and how the law applies to that set of facts. This information should be viewed as a starting place, a way to identify when you should consult with your outside counsel for legal advice.

Main Sections


ADA Accessibilty

What accommodations are optometrists required to provide for patients who speak a foreign language?

All providers who receive federal funds from the U.S. Department of Health and Human Services (HHS) for the provision of Medicaid/CHIP services are obligated to make language services available to those with Limited English Proficiency (LEP) under Title VI of the Civil Rights Act and Section 504 of the Rehab Act of 1973 (source: www.medicaid.gov ). State laws may also require a doctor to provide translation services. If the doctor does not participate in Medicaid and does not practice in a state with laws that address the subject, the doctor would not be required by law to provide translation services. However, most providers would like to be able to care for all patients, and there is a range of possible approaches that would allow you to provide such care.

Remember that where required by law (i.e., state law or federal law applicable to Medicaid providers), a doctor is required to provide an effective means of communication with the patient. As is the case with providing care to hearing impaired patients, there is no bright line rule that defines what constitutes an effective means of communication.

For a foreign language speaker, using written means of communication is helpful only if the text has been translated in advance and the optometrist can understand the answers to questions. Effective communication between the patient and the doctor or staff may require a method of real-time communication, in which case commercially-available conference telephone and video language interpretation services are a possible solution. There may also be low cost interpreters available through local social services agencies. A doctor is not required to pay for an interpreter brought by the patient; however, if there is an unresolvable disagreement between the patient and the doctor as to what it takes to facilitate effective communication between the patient and the doctor, the safest approach may be to agree to the patient’s request, in particular for Medicaid providers or doctors who live in states with laws requiring the provision of translation services.

It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, in many cases a patient may prefer to have a family member interpret. If the patient requests it, this an acceptable solution.

HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient’s family present when the care is delivered. While a translator hired by a doctor’s practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliance with 45 C.F.R. 164.504(e). See Title 45 C.F.R. 164.506(c) for more information.

What accommodations are optometrists required to provide for hearing-impaired patients?
As a place of public accommodation, optometrists are required to provide reasonable accommodations to someone with a hearing related disability. The law does not define exactly what is reasonable, but in practice it means something that allows you to provide the same service that you would otherwise provide to a non-disabled person.

For a hearing impaired person, specially prepared written materials describing the test procedure, plus a notepad and laptop (for writing or typing questions), may reasonably accommodate a hearing-impaired person's disability and allow an optometrist to provide the same service. However, if a sign language interpreter is the only way for an optometrist to provide the same service to a patient with hearing disabilities, then the doctor would be required to provide one and bear the cost. Because of the nature of sign-language interpretation, that would mean an in-person interpreter or real time video-interpretation service.  

It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, if a patient prefers to have a family member interpret, that is an acceptable solution.   Information addressing the issue of reasonable accommodations and a list of auxiliary aids for the deaf are available at www.ada.gov, a website maintained by the U.S. Department of Justice Civil Rights Division.  

HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient's family present when the care is delivered. While a translator hired by a doctor's practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliance with 45 C.F.R. 164.504(e). See Title 45 Code of Federal Regulations, Section 164.506(c) for more information.
Do rest rooms in doctor's offices have to be ADA accessible?

The U.S. Department of Justice and Department of Health and Human Services take the position that bathrooms in doctor’s offices must be ADA accessible. However, exact requirements depend on the characteristics of the building, such as the date it was build or last renovated. The ADA Standards for Accessible Design available on the ADA website ( www.ada.gov) provide more detailed information.

For a definitive answer based on your building’s characteristics, it would be best to consult an architect or an attorney who specializes in ADA law. Doctors who lease space should ensure that the issue of ADA accessibility is addressed in their lease and ideally make the Landlord responsible for providing accessible facilities either in the leased space or building common areas.

What are guidelines for ADA accessibility for a practice's website?
The ADA requires that the goods, services, privileges, or activities provided by places of public accommodation must be equally available to people with disabilities. The U.S. Department of Justice takes the position that this requirement extends to business websites, which can be difficult to navigate for those with low vision or physical disabilities. However, there are no regulations that provide specific guidance about how to make websites accessible. In response to a letter from members of Congress, the U.S. Department of Justice wrote in October 2018 that given the lack of any specific regulatory requirements, businesses have flexibility in deciding how to make their websites accessible. In the past, some individuals had successfully brought suit against businesses for failure to meet the voluntary Web Content Accessibility Guidelines (WCAG). The October 2018 DOJ letter specifically refuted the idea that lack of compliance with the WCAG guidelines automatically indicates noncompliance with the ADA. However, the WCAG guidelines should be viewed as a best practice, and business owners who comply with those guidelines can feel certain that their websites would be considered accessible to those with disabilities. The best time to adopt accessibility features for a website is when a new website is being built, substantially overhauled, or moved to a new platform. However, it is possible to incorporate basic accessibility features in an existing page. The WCAG guidelines are available here: https://www.w3.org/TR/WCAG20/. The letter from DOJ may be seen here: https://tinyurl.com/y26t3ntp.

Business of Optometry

What are my obligations regarding patient records and patient notification when closing a practice?
When closing a practice, it is best to make plans well in advance of the planned closing date to allow time to notify patients and find a repository for patient records.

Usually, the easiest method of securing patient records is to find another doctor to agree to take custody. It is imperative that there be a written agreement with the new records custodian (in this case, the doctor) requiring the custodian to maintain records in conformance with all state and federal laws regarding patient records and privacy. The doctor taking over the records should also agree to indemnify the original doctor in the event a claim is brought against the original doctor because of the new custodian's failure to properly maintain the records and make them available to patients.

The agreement with the new custodian should also include a provision allowing the original doctor to obtain access to a patient file if necessary in case a need arises in the future, for example to respond to an insurance audit or a lawsuit. Laws regarding how patients must be notified of a practice closure vary from state to state, so always check with your state association and/or state board of optometry for guidance.

Some states permit physicians to publish a notice in a local newspaper announcing the sale or closing of a practice in lieu of particularized notice to each patient. Other states put a time limit on the patient notification obligation, i.e. the doctor must notify only those patients seen within the past two years (the precise number of years may vary). If a closure is anticipated well in advance, and a plan for securing patient records is in place, a practice might consider providing written notice to patients during patient visits, thereby reducing the number of notices that must be mailed.

Finally, the notification to patients should contain information about where patients may obtain care in the future. Special care should be taken to ensure that patients being treated for ongoing conditions receive referral information about doctors of optometry who can continue to treat their condition.
How should I go about hiring Prospective Counsel?
Just as your patients went through a series of steps to determine which optometrist they wanted to select, so too will you have to consult several resources to determine what outside counsel you wish to use and when. The AOA does not give lawyer referrals. Referrals services however are available through some AOA affiliate associations as well as local and state bar associations. Attached is a comprehensive chart that identifies lawyer referral websites available in each of the fifty states. You should also ask friends, relatives, coworkers, or other members of your community to recommend lawyers with which they have worked especially if they were seeking help for legal issues like those you are facing. Remember, you want to select an attorney who is familiar with and practices in the area of law you are dealing with. Before you retain your lawyer, you should meet with the lawyer to determine if he/she is the best attorney for the job. Many attorneys will meet with you initially at no cost but make sure this is the case before you meet with the attorney.
What questions should I ask prospective counsel in an interview?
Make sure you find the answers to the following questions when interviewing outside counsel
  1. Am I being charged for this initial interview?
  2. How will the attorney fee be assessed? Will it be a flat fee (a set fee for the job-for example, $500.00 for a simple will), an hourly rate or a contingent fee (for example, 1/3 of the judgment amount)? If the attorney will charge via an hourly rate, what will that rate be?
  3. Does the attorney require a retainer? What is the nature of the retainer? A retainer fee is an amount of money paid upfront to secure the services of a lawyer. Once all fees have been paid, then the retainer is returned to the client.
  4. Before your meeting with the lawyer check to see if the attorney has had any complaints against him or her with the State Bar and what they were about. If you see something that concerns you, you may wish to discuss it with the attorney.
  5. Ask the attorney about their experience dealing with your type of legal matter.
  6. How responsive is the attorney? You may want to follow up your meeting with the attorney with a short email asking a question or two that requires an answer. The attorneys’ response to the email or lack thereof will give you a good indication of how responsive the attorney may be to your case.
  7. Will the attorney be handling the matter, or will it be referred to an associate? An associate is typically a junior attorney who works under the direction of a partner. Associates bill at a lower hourly rate than partners.
  8. How long do you estimate it will take to complete this matter?
  9. How much do you estimate your services will cost me?
What expectations should you have of an attorney once you have hired him or her?
When you go to the meeting with the attorney, you may want to bring:
  1. A written summary of the issues.
  2. The names, addresses, and phone numbers of all people or entities involved.
  3. All documents related to the matter.

Remember many times attorneys charge by the hour. The more organized you are in presenting your case, the more time you will save your attorney and the more money you will save yourself!

What things can I do to prepare for an interview with this attorney?
You should expect your attorney to:
  1. Prepare a written fee agreement that outlines everything you must pay and the reason for those charges.
  2. Tell you the strengths and weaknesses of your case.
  3. Keep you informed as to the status of your case and what he or she is doing to advance your case.
  4. Follow your instructions (so long as they are reasonable, legal, and ethical);
  5. Protect your interests and keep you informed when he or she is making important decisions about your case
  6. Not represent any client whose interests are adverse to your interest
  7. Provide you with copies of all the documents and letters that relate to your matter
  8. Send you monthly bills that outline all the work that he/she has done in your case and the fee for the work as well as any expenses incurred.
What expectations will the attorney have of you as his/her client?
  1. Be present and on time for your appointments.
  2. Give her/him your contact information and make sure to update that information if it changes.
  3. Be completely honest. Except in special circumstances, the lawyer must keep what you or he tells you completely confidential.
State Bar Lawyer Referral Services


An important consideration for any optometrist who decides to open his/her practice is what form of business organization he/she should chose. There are a variety of different types of business organizations and there are advantages and disadvantages associated with all of them.

What business structure options do I have?
  1. Sole proprietorship
  2. Parnership
  3. C Corporation
  4. S Corporation
  5. Limited Liability Corporation

There are several advantages and disadvantages associated with each of these forms of business organizations.

What are some of the advantages and disadvantages associated with a sole proprietorship?
In a sole proprietorship, the business is owned by one person, usually the individual who has the responsibility of running the business on a day-to-day basis. There are no special requirements to create a sole proprietorship. Basically, a person just starts their business. It is not necessary to register as a sole proprietorship. In some states, if a fictitious name is used, a fictious name registration must be made.

Advantages associated with a sole proprietorship is the ease of formation as noted above. In this form of business organization, the owner retains all the profits, and those profits are taxed only once. The owner can make all the decisions concerning the business and is in complete control of their company. Tax forms are not complicated for this form of business. Assets are easy to liquidate upon the death of the owner.
A huge disadvantage with a sole proprietorship is that the owner faces unlimited liability if anything happens in the business. The owner’s personal assets are at risk. If someone sues a sole proprietor and secures a judgment, business and personal assets can be seized to satisfy that judgment. A sole proprietor is also much more limited in their ability to raise capital. The sole proprietor may have to take consumer loans to finance their business expansion.
What are some of the advantages and disadvantages associated with a partnership?
A partnership is when two or more people share ownership of a single business. A partnership can arise by operation of law. In other words, if two people work together on their business and share profits, the courts will find that a partnership exists. It is much better though if the partners have a legal agreement that sets forth how decisions will be made, profits will be shared, disputes will be resolved, how future partners will be admitted to the partnership, how partners can be bought out or what steps will be taken to dissolve the partnership when needed.

One advantage to a partnership is that it is easy to establish and can arise simply by the actions of the parties. However, a partnership agreement is well worth the effort to prevent problems in the future. Profits are taxed only once as the income passes through the partnership to the individual partners. Successful partnerships often bring together people with different skills sets to enhance the business.

There are also disadvantages associated with a partnership. First, partners are jointly and severably liable for the actions of the other partners. So, if your partner decides to lease the pricy downtown office space, the other partner will be bound by that business decision. This divided decision making inherently can cause problems. Profits made in the partnerships need to be shared with the other partners. Additionally, as noted above, the business can suffer if a detailed partnership agreement is not in place.

Most partnerships are general partnerships. However, there is a form of partnership known as a limited partnership. In a limited partnership, there must be at least one general partner and one limited partner. A limited partner does not participate in the day-to-day management of the business. A limited partner’s risk is limited to the amount of money they have invested in the partnership. The general partner’s risk is unlimited.
What are some advantages and disadvantages associated with a C Corporation?
A C corporation is taxed separately from its owners. It gives the owners limited liability which tends to encourage more risk taking and potential investment.

One of the advantages associated with a C corporation is the limited liability. If the corporation is sued and the corporation is adequately capitalized and has pursued all the corporate formalities, liability is limited to the corporation. Personal shareholders of the corporation are not personally liable for the debts of the corporation. It is also easier to transfer an ownership interest in the corporation. Shareholder need only sell their shares of the corporation. Capital is easier to raise through the sale of stock.

A disadvantage with a C Corporation is double taxation. The company’s earnings will be taxed at the relevant corporate tax rate, and dividends paid to the owner shareholder will be taxed separately as personal income. A corporation can be costly to form as there are specific documents that must be filed with the Secretary of State’s office. There are also more administrative duties associated with operating a corporation vs. a sole proprietorship, partnership, or LLC. You will be required by law to have annual meetings, notify stockholders of the meetings, and keep minutes of the meetings in a specific location. Typically, corporate taxes are paid at a different time frame than personal taxes, which adds another layer of operational complexity.
What are some of the advantages and disadvantages associated with a S Corporation?
An S corporation is a tax classification. An S corporation provides limited liability protection but also offers corporations with 100 shareholders or fewer to be taxed as a partnership. An S corporation is also known as an S subchapter. The shareholders must report their income on their individual income tax returns. The advantages associated with the S corporation are limited liability and an avoidance of double taxation by having profits taxed only once. Capital is also easier to raise through the sale of stock.

Disadvantages associated with S Corporation is that they can be more complicated and costly to form. Stockholders are limited to individuals, estates or trustees.
What are some of the advantages and disadvantages associated with a Limited Liability Company?
A limited liability company is a legal designation that can protect small-business owners from personal liability in business obligations. Owners of LLCs are known as members. LLCs can have one owner (single member LLC) or more than one owner (multi-member LLC). Owner-employees of LLCs are self-employed. LLCs offer a formal business structure, while they can also be taxed similarly to sole proprietorships or partnerships. An LLC is more flexible than a corporation in organization and profit distribution, and does not come with the same annual meeting requirements of a corporation. An LLC canchoose taxation as a corporation, and owners can save money by electing S corp. tax status. A limited liability company is a hybrid business structure that provides the limited legal liability of a corporation and the operational flexibility of a partnership or sole proprietorship.
State by State Links on Business Organizations


Employment

A doctor of optometry is hiring another optometrist and needs an employment contract. What should be included in the contract?
Subjects that typically must get considered when drafting employment contracts are the following:
  1. Noncompete agreements (distance and duration restrictions for where a former employee can practice)
  2. Payment of expenses such as malpractice insurance and professional society memberships.

Nos. 1 and 2 are highly state specific. A practice that employs a doctor of optometry would want to make sure that it keeps all the patient files and that a physician who leaves cannot set up shop across the street right away. The law mostly lets the employer do this, but there are limits.

Guidance for physician employment contracts are included in these links:

https://www.verondi.com/uploadedFiles/Harris_County_Medical_Society/Practice_Resources/Practice_Operations/Practice_and_Payment_Models/AMAemployment_agreement.pdf
https://www.acponline.org/system/files/documents/running_practice/practice_management/human_resources/employment_contracts.pdf

Can an independent contractor agreement include a noncompete provisions?
While independent contractor agreements and non-compete provisions do not logically seem to go together, there have been instances when courts have upheld non-compete provisions for contractors. Do not necessarily count on such provisions being unenforceable. One potential issue combining the two matters in the question is the contractor getting labeled as an employee by the Department of Labor, which creates liability. A different option is to enter into a contractor agreement with confidentiality provisions prohibiting the use of patient lists, but that type of arrangement is not ideal for the company. If a company is uncomfortable with utilizing a more watered-down noncompete provision, the business may hire the physician as an employee under some type of noncompete provision. You would need an attorney from the state in which employment took place to look at any agreement you wanted to sign.
What are the major considerations as it relates to the form of relationship selected between a business and a doctor of optometry (employee or independent contractor)?
This important decision is a personal one for someone’s business. A major consideration is compliance with the law / IRS / Department of Labor. Three macro factors to help in deciding whether a worker is an employee or independent contractor are behavioral control, financial control, and relationship. A worker should be labeled as an employee if they are working under supervision, are provided detailed instructions, formally evaluated, directed/controlled financially by the business, the hours are strictly controlled, provided employee-type benefits, and/or the relationship is labeled as an employee-employer relationship.

A worker should be labeled as a contractor if the hours are not specially dictated by the business, the worker does not need supervision, there isn’t training, the individual is generally free to look for other business opportunities, there is not the expectation that the relationship will continue indefinitely, there isn’t an evaluation system, and the written contract describes the relationship as a contractor relationship.

Here are the factors from the IRS to help decide: https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation.

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