California ODs successful in litigation, legislation

Issue: October 2006

ByJennifer Byrne

A June 12 state supreme court ruling in California has sustained state laws that prohibit optical retailers from forming economic relationships with optometrists. The court rejected the defending optical company’s claim that an exemption from the ban for regulated health care plans applied to them.

In other California optometric news, the COA successfully proposed amendments to a children’s vision advisory screening resolution and sponsored to passage a bill that strengthens California’s law to keep plano cosmetic contact lenses from being sold without prescriptions and fittings.

Supreme court ruling

In 2002, California attorney general Bill Lockyer sued the Pearle Vision Chain, which is now owned by Luxottica Group, claiming that the chain’s 46 stores in the state illegally combined the prescribing and the making and selling of lenses.

The litigation, known as People v. Cole, claims that Cole violated the Business and Professions Code sections 665 and 2556, which forbid business and financial relationships between dispensing opticians and optometrists or ophthalmologists. According to Tim Hart, director of Government and External Affairs for the California Optometric Association (COA), Cole appealed before trial, claiming that its vision plan for customers fell within the managed care exemption found in the Knox-Keene Act. The Fourth District Court of Appeals disagreed, and the state supreme court affirmed its decision.

The COA, representing half of the state’s actively practicing optometrists, filed an amicus curiae (friend of the court) brief supporting the attorney general’s position on appeal.

COA: “Pleased” with ruling in litigation

According to Mr. Hart, the People v. Cole ruling is good news for optometrists and patients in the state.

“The members of the California Optometric Association are pleased that the California Supreme Court ruled unanimously in People v. Cole that the legislature never intended to create a loophole in current law that would allow optical corporations to interfere with practicing optometrists’ professional judgment,” Mr. Hart told Primary Care Optometry News. “California’s existing system is designed to protect eye care patients by guaranteeing them access to diagnoses and treatments based solely on science and free from economic interference.”

Luxottica’s LensCrafters chain has filed a separate civil lawsuit – naming Lockyer as a defendant – alleging that the California statutes violate the dormant commerce clause of the U.S. Constitution.

“This litigation is not over,” Mr. Hart said. “There are two other cases, Snow v. LensCrafters in state superior court and NAOO v. Lockyer in U.S. District Court in which the same statutes figure as well. Now that the Cole appeal is decided, these cases will go forward.”

Mr. Hart said the COA is optimistic about the outcome of that litigation.

“We trust that in these two remaining suits, the judges are as wise as our highest court where the protection of eye care consumers is at issue.”

Amendments made to screening bill

Mr. Hart also told PCON that the COA succeeded in amending a resolution creating a legislative advisory panel on the effectiveness of preschool vision screenings. Assembly Concurrent Resolution (ACR) 145, sponsored by the California Academy of Ophthalmology, calls for the appointment of a two-house panel to study the state’s existing vision screening and appraisal requirements for children starting first grade. This advisory panel will make recommendations on school vision screenings and the need for comprehensive follow-up treatment.

The COA had requested that amendments be made to this resolution, specifically indicating that ACR 145 “should include discussion of the clinical studies reviewed by the American Optometric Association [AOA], which have concluded that all children should receive a comprehensive eye and vision examination,” according to a COA statement.

The COA also suggested that the membership of this panel should reflect more of an optometric presence.

“Currently, doctors of optometry treat 70% of primary eye care patients, and they must be better represented on the panel,” the COA statement read. “The current membership is over-representative of MDs and under-representative of ODs. We propose the addition of a representative from the American Academy of Optometry (AAO) and the California Teachers Association and the removal from the panel of the member from the California Medical Association.”

The COA had taken a stance of “oppose unless amended” on the legislation, Mr. Hart said.

The resolution was amended on June 26, and because the amendments addressed most of the issues raised by the COA, the COA changed its position on the ACR 145 to “neutral,” Mr. Hart told PCON.

He said the following changes were made:

As introduced, ACR 145 provided for the appointment of five MDs and only one OD, with no clinical representation. As amended, the resolution provides for three OD appointments, including a fellow of the American Academy of Optometry.
As introduced, ACR 145 contained clinical language only from medical sources; COA felt that the guidelines and position statements on early eye exams adopted by AOA and the AAO should be included, as well. The compromise reached was that the resolution itself would not speak to clinical findings, and that function would be left to the advisory panel, when appointed.
As introduced, ACR 145 did not include representation for the California Teacher’s Association, the segment of the education committee that is most politically influential when mandated school screenings or examinations are proposed.

“It has passed both houses of the legislature,” said Mr. Hart. “It’s considered legislative business only and will not require gubernatorial action.”

Cosmetic lens bill passed

A bill that makes it a deceptive business practice for anyone to represent that plano contact lenses – already defined under California law as “prescription ophthalmic devices” – may be purchased without a prescription or fitting was signed into law.

AB 1382, which was approved by the governor on Aug. 23, adds to existing law, which already provides that “it is a deceptive marketing practice for any licensed physician and surgeon, licensed optometrist or registered dispensing optician to publish or cause to be published any advertisement or sales presentation representing that contact lenses may be obtained without confirmation of a valid prescription.”

California law has regulated plano lenses as prescription devices since 1996, but civil remedies applied only to licensed eye care professionals. Congress last year enacted legislation that amended the federal Food, Drug and Cosmetic Act to define nonprescription contact lenses as “medical devices;” the new law is not intended to obstruct existing state laws on the same subject, according to the COA.

Section 2341.3 of the Business and Professions Code empowers the Food and Drug Branch at the Department of Health Services, the medical board and the state board of optometry to collaborate on preventing and punishing the marketing of “prescription ophthalmic devices” without complying with the requirements of the state Sherman Act governing “drugs and devices.”

For more information:

Tim Hart is director, government and external affairs, for the California Optometric Association. He can be reached at 2415 K St., Sacramento, CA 95816; (916) 441-3990, Ext. 227; fax: (916) 448-1423; e-mail: timh@coavision.org.