When Do I Need an Independent Contractor Agreement?
Optometrists who practise with another person or entity (organization or corporation) that is not an optometrist or a physician must be able to show that they are independent. “Independent” means that the optometrist’s decisions are not controlled or influenced by anyone or anything. This preserves the optometrist’s freedom to make clinical decisions that are in the best interests of their patients. Optometrists alone are responsible for ensuring that their business arrangements comply with Ontario laws.
When do I have to show that I am an independent contractor?
You must be able to show that you are independent anytime you work with a person (an optician or a non-optometrist business owner) or entity (an organization or corporation, such as Costco, Lenscrafters, Walmart, Iris, Hakim Optical, or a privately owned optical store) that is not another optometrist or a physician. In these cases, you must have a written agreement (referred to as an “independent contractor agreement”) stating that you are independent.
I am working for a laser surgery centre. Do I need an independent contractor agreement?
Yes. The centre is neither an optometrist nor a physician, so you must declare that you are independent through such an agreement.
I do not have anything in writing, but I do have a handshake agreement. Is this enough?
No, a handshake is not enough. The law requires you to have an independent contractor agreement in writing; this can be found under “Part II: Conflict of Interest” in this Ontario regulation. The College has developed these independent contractor policies to further explain the requirements: Regulatory Standards Interpreted and Risk & Control. If you have any questions, please contact the College.
I’ve been asked to work at an optical store for a few days this summer. Do I need an independent contractor agreement for just a few days?
Yes. If you are engaged in practice for any length of time where an independent contractor agreement is required, you must have one in place (and in practice) to demonstrate that you are independent.
The optical store I work at says they own patient records. Is this okay?
No, the optical store cannot own optometric records. As an independent practitioner, you must have care, custody, and maintenance of the patient records (refer to OPR 5.1 The Patient Record). Any independent contractor agreement that you enter into must specifically state that you own and maintain the records. This means that if you leave the arrangement, the records must go with you, and you have the responsibility to inform patients of the location of their records.
I have not hired or trained the staff at the optical store, I just show up to do eye exams. Am I responsible for anything that staff members say or do?
Yes. You are responsible for any and all staff acting on your behalf (making appointments, communicating with patients, doing the billing, etc.). The staff at any location where you practise are an extension of you. In the eyes of the public and the College, their actions and behaviour are considered your actions and behaviour (Your Patients, Your Staff, Your Responsibility).
I work at the optical store just once a week and I pay $50 per month in rent. Is this enough?
Not likely. In order to be truly independent, you must be paying a reasonable amount of rent (that is, rent that is normal for the area) for the space you use. It must also include an amount that covers your share of expenses, including but not limited to utilities, staff salaries, taxes, equipment, and maintenance.
The optical store has asked me to hand over my patient prescriptions directly to the optician. Is this okay?
No, it’s not okay. You should not be handing the prescription to anyone but the patient (Optometric Prescriptions: Release of Prescriptions). Once finalized, you must give the prescription directly to the patient and not to the optical staff. The prescription belongs to the patient, who has the right to choose where to fill it. Providing the prescription to the patient is one way in which the optometrist demonstrates to the public that they are truly independent from the optical.
The optical store where I work advertises “free eye exams.” I was not involved in this. Am I responsible?
Yes, you are responsible. Any advertising of your practice must be in compliance with the advertising laws, and it is your responsibility to ensure that it complies, even if you did not directly design, approve, or place the ad.
There is no such thing as a “free” eye exam; if there was, you as the optometrist would not get paid for that eye exam. In some schemes, the cost of the exam is absorbed by the optical if the patient orders eyewear and the optician then pays the optometrist for the exam. This could be considered sharing fees, which is illegal. Also, if the exam is billed to OHIP, it is not a free exam and should not be advertised as such.
I occasionally work with a company that operates a mobile clinic that travels to university and college campuses and elementary schools. Do I need an independent contractor agreement for this?
Yes, an independent contractor agreement is required whenever you practise with another person or entity that is not an optometrist or a physician. The quality of care that patients receive at a mobile clinic is expected to be equal to that which they receive in a more traditional practice setting. Optometrists must ensure that:
- there is a daily appointment record and patient health records,
- the optometrist is not pressured by the company to see more patients per day than can be properly assessed,
- patients know how to contact the optometrist after the exam for follow-up or for access to their records, if necessary, and
- patients are properly billed for services provided.
Optometrists must pay a reasonable amount for the use of the mobile clinic and the services of support staff, and must provide patients with a copy of their prescriptions at the conclusion of the exam. In short, whether the clinic is mobile or traditional, the requirements outlined in the OPR are the same, including the need for an independent contractor agreement.
Who is ultimately held accountable for compliance with all of this?
Optometrists alone are responsible for ensuring that their business arrangements comply with Ontario laws. People who are not optometrists may not know the laws that optometrists must follow. They cannot be held responsible if your practice is found to violate the laws, but you will be. Optometrists who practise in contravention of the laws may be found guilty of professional misconduct, which may result in fines, temporary suspension, or other serious outcomes.
If you are not sure whether your current or proposed practice arrangement complies with the laws, please consult the resources referenced in this document and contact the College for further guidance if needed.