Non-Optometrist Ownership, Sales Bonuses, and Prescription Release
An optometrist is offered a position as the only OD in a new optical boutique in Fargo. The boutique is owned by a non-optometrist investor who will own 100% of the practice, set all fees, keep the patient records in the company's name, and pay the optometrist a base salary plus 15% of all eyeglass and contact lens sales. The investor plans to advertise 'Free comprehensive eye exam with every complete pair of glasses' and 'Lowest prices in North Dakota-guaranteed.' The optometrist will be an independent contractor and will use the investor's electronic health record, which allows the investor to view all clinical notes. The optometrist is also asked to sign a contract clause stating that patients who do not purchase glasses will be charged a $75 'records fee' before their prescription is released. The optometrist has an active North Dakota license and no ownership interest.
1. Identify the ownership, fee-splitting, and clinical-control problems in the proposed arrangement.
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The central problem is that a non-optometrist investor would own and control the professional practice. North Dakota law and board rules restrict the corporate practice of optometry and generally prohibit non-optometrists from controlling clinical judgment or sharing in professional fees. Calling the optometrist an independent contractor does not cure the arrangement if the investor owns the records, sets fees, and views clinical notes.
The 15% bonus on optical sales is a volume-based incentive that may constitute prohibited fee splitting and creates a conflict with clinical independence. The optometrist could be pressured to prescribe or sell more eyewear. The investor's access to clinical notes also raises confidentiality concerns; clinical records should be controlled by the licensed provider or an entity permitted by law. A compliant structure might use an optometrist-owned professional corporation that leases space and staff from the investor, with a fixed salary not tied to sales. The optometrist should have the contract reviewed before signing.
2. Evaluate the two advertised claims under North Dakota advertising rules.
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'Free comprehensive eye exam with every complete pair of glasses' is conditional. If the exam is not genuinely free and the patient must buy glasses to avoid a charge, the advertisement must clearly disclose the conditions, the minimum purchase, and any restrictions. A slogan that implies a free exam but actually bundles the cost into the glasses price can be misleading.
'Lowest prices in North Dakota-guaranteed' is an unsubstantiated superlative. Unless the practice can verify the claim at the time it is made, it risks being deceptive. Advertising rules prohibit false, misleading, or deceptive statements and may require that discounts and guarantees be clearly explained. The optometrist should not approve the ads until the conditions are disclosed and the price claim is either substantiated or removed. Professional advertising also should not create unreasonable expectations or imply superior quality without a basis.
3. May the practice charge a $75 'records fee' before releasing the patient's prescription to a patient who does not buy glasses?
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No. A patient is entitled to receive the prescription after an eye examination, and the practice cannot condition release on purchasing eyewear or paying a penalty fee. Withholding a prescription to pressure a sale is unprofessional and may violate both the Practice Act and consumer-protection principles. A copying or records fee may be permitted for copies of records if it is reasonable and authorized, but it cannot be used as a precondition to the prescription itself.
The optometrist should insist that prescriptions be released promptly and without purchase conditions. If the practice wants to charge for copies of the full record, the fee should be separately stated, reasonable, and consistent with law. The contract clause should be rejected. The optometrist's license is at risk even if the investor designed the fee, because the licensed provider is responsible for the professional environment.