Regulatory Standards (O. Reg. 119/94 Part II Conflict of Interest under the Optometry Act) Interpreted
Effective April 15, 2014
NB: This document does not apply to associate agreements with other optometrists or physicians where both owner(s) and associate(s) practice together (although these associate optometrists may be considered “independent contractors” by the CRA for tax purposes).
“Independent contractor” means a person who practises optometry under an agreement with another, but who is independent and not controlled by the other or subject to the other’s right to control respecting the member’s conduct in the practice of optometry.
Optometrists are limited as to the types of practice relationships into which they may enter. Where optometrists are engaged in the practice of optometry with anyone other than another optometrist or a physician (or working in other arrangements as allowed by the regulation), optometrists are required to do so as independent contractors. An independent contractor must have a written agreement that states that the optometrist:
- controls the professional services provided to a patient;
- controls who he or she may accept as a patient;
- provides every patient with a copy of his/her prescription;
- sets the fee charged or collected in respect of any professional service;
- controls the maintenance, custody, and access to optometric patient records;
- has access, along with the optometrist’s staff, to the premises, books, and records at any time of day or night; and
- ensures that any advertising related to professional services provided by the optometrist is compliant with Ontario Regulation 119/94 (as amended by Ontario Regulation 24/14 made under the Optometry Act (the “Regulation”)).
- It would be considered a conflict of interest for optometrists to be engaged in practice where a third party restricts their access or ability to provide professional services to their patients. For example, if optometrists cannot provide optometric services to a certain demographic of the population as a condition of the agreement with the corporation, or if optometrists are not allowed to refer patients to another practitioner for visual field testing, optical coherence tomography, or corrective surgery, where it is clinically indicated.
Who may be Accepted as Patients
- In some corporate settings, there is a requirement that clients be “members” in order to access the services of the corporation. Optometrists practising in such a setting should have in their agreement a statement that everyone may access their services, regardless of whether or not they are a “club member.”
Provide All Patients With a Copy of their Prescription
- Optometrists, or their staff, must provide patients with a copy of their prescription. For example, optometrists practising as independent contractors in an optical location should provide prescriptions to patients directly, and not “hand off” prescriptions to the staff of the optical.
- The College considers that optometrists who are working with a corporation but do not have control over the setting and collecting of fees (where the fees are set by the corporation and are consistent across the corporation) are not independent contractors and would be practising in a conflict of interest. This is not to restrict optometrists from having others collect fees on their behalf (such as shared staff), however optometrists must have control over the amount, and how and when fees are collected on their behalf.
Maintenance, Custody, and Access to Records
- Where optometrists are practising as independent contractors with an optician/optical store, every practitioner is the health information custodian for their own patient records. In an independent contractor arrangement, the College would take the position that the optometrist, in controlling the maintenance, custody, and access to the records, would keep the records separate from the optical records. Accordingly, if optometrists leave the practice setting, they would have the right to relocate the optometric records. Optometrists would be obligated to inform patients that the records have been relocated. Arrangements where optometrists do not have unfettered access to, and control of, their patient health records would be considered a conflict of interest.
Access to Premises
- Optometrists must be able to provide care to patients in extraordinary circumstances (e.g., in an emergency) should it be necessary. Accordingly, optometrists working as independent contractors with a corporation (e.g., a large retail entity) must have a system to access their office at all hours.
- Optometrists are no longer prohibited from advertising with non-members, therefore optometrists practising as independent contractors may advertise with non-optometrists. Advertising must be in accordance with the advertising regulations and guidelines and must not, for example, contain testimonials, superlatives, or comparatives. Any advertising of the optometrist’s practice, whether or not the optometrist directly placed the ad, is the responsibility of the optometrist and must comply with the advertising regulation. For example, if an optical advertised “TZVEC Optical has the best glasses in town,” and also included a reference to an independent contractor—“Eye examinations provided by Dr. X on site”—the College considers that Dr. X would be in violation of the advertising regulation, knowingly permitting the publication of an advertisement that includes a superlative.
- Where multiple optometrists practice at the same optical/corporation, each optometrist must have a separate independent contractor agreement with the optical/corporation. An exception to this would be if one or more of the optometrists who are acting as independent contractors, and who have agreements with the optical/corporation, employ associate optometrists. In that case, the optometrists who enter into the agreement as independent contractors will be responsible for ensuring that the associates are not controlled by the optical/corporation and that the provisions of the agreement are respected. In the event of a breach of the independent contractor requirements resulting from the optical/corporation controlling the associate, it is the independent contractor who will be held responsible.
To employ associate optometrists, independent contractors in the above scenario must also practise optometry at the optical/corporation location in order to meet the definition of “independent contractor.” Optometrists cannot be merely an administrator, a figurehead, or in practice full time at a different location(s), because they would not be practising optometry at the location in question.
- It is appropriate for written agreements between independent contractors and optical/corporations to include reasonable terms regarding facility and equipment costs and shared staff. Independent contractors who receive free rent, equipment use, or shared staffing would be considered in a conflict of interest. This is because such arrangements are likely to influence the optometrist’s professional expertise or judgment or, if there is any connection between the “free” rent, equipment, or services and the referral of patients by the member to the optical/corporation, it would constitute a benefit for the referral of patients, which is contrary to the Regulation.
The College may require evidence of the independence of members and proof that appropriate payments of rent, equipment, and/or services are being made. This may include the independent contractor agreements, cancelled rent cheques, financial statements, or other documents. It is also considered a conflict of interest for optometrists to enter into arrangements where the rent is based on the amount of fees charged or the volume of business.
- Optometrists are prohibited from sharing fees with anyone except other optometrists or physicians. An offer of free eye exams by optometrists might involve fee sharing with the optical/corporation and would constitute a conflict of interest as members may only share fees with other members and physicians.
In addition, advertising free eye exams is false or deceptive and is contrary to the advertising provisions in the Regulation. It might also constitute criminal fraud if OHIP is billed for the examination.
College May Request Evidence of Compliance
- The College may request that members practising in an optical/corporation setting produce their written agreements to the College for the purpose of verifying their status as independent contractors. It is not sufficient that independent contractors have an agreement in place; they must actually work in accordance with its terms. The College may require verification that this is happening.