(W. Bruce DelValle) – A new frontier has arisen in the seemingly ceaseless tug-of-war pitting inventive technological efforts to provide the best possible products and services to the American public against those who are working to impose slothful and backwards protectionist barriers to secure lucrative profits for themselves.
Entering the battleground is the relatively new field of “telemedicine” and the multi-million dollar efforts of the American Optometric Association (“Big Eye”) to purchase state legislative efforts to kill the innovation.
Telemedicine involves an amazing and unabashedly sci-fi/futuristic technology, whereby an app on your smartphone can perform a routine eye examination from your home or office in about 25 minutes. The examination has been determined to be every bit as accurate and effective as an eye examination in your local optometrist’s office and provides the patient an accurate prescription for eyeglasses or contact lenses without the need for an office visit.
Telemedicine providers have worked diligently to ensure they provide highest quality, safest and most inexpensive method of delivering the health care services in compliance with federal regulations such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). These services are also vastly more convenient and economical to the consumer/patient.
Following the eye exam performed in the comfort of his/her living room, the consumer/patient may then secure contact lenses from a wide variety of online or discount sellers at extraordinary discounts and savings to them – with a near infinite choice of designs, colors and styles that cannot be made available at the local optometrist due to stocking and space limitations.
No need to go to the optometrist’s office; no need to sit in the waiting room, no need to physically sit through yet another yearly eye exam when everyone universally agrees that bi-annual is all that is suggested or required; no need to pay the escalated price of lenses. Sounds great, right?
It is, unless you are an optometrist that depends upon selling contact lenses at incredibly marked up prices for fabulous profits. Optometrists use the eye exams to lure customers into their shops to sell them products. “Skip the exam and skip the certain sale.” That is the fearful message telemedicine has flashed before the Big Eye. And Big Eye is Not Happy!
Therein lies the problem that has caused the American Optometric Association (“Big Eye”) to crank up the Lobbyist’s Big Guns of War for the sake of their perceived “survival.” Never mind that for many years the insurance reimbursement coded amount for a telemedical eye exam is the exact same as for an office visit. No money is being lost because of the eye exam itself. No, it is the freedom from captive sales that is intolerable and cannot be condoned by Big Eye.
Never mind that Virginia’s licensed ophthalmologist groups recently made clear that there have been no reported instances where anyone has been injured by the telemedicine technology and there is no need for a yearly in-office eye exam. That’s why the Virginia legislature laudably passed a new bill, sponsored by Delegate Peter Farrell, that will allow for online vision tests.
Yet, numerous other states such as California and Indiana have passed laws banning ocular telemedicine, thereby emboldening Big Eye and its quest for profits and harming the citizenry. Also, both California and Indiana have pre-existing statutory schemes favoring and incentivizing telemedicine.
At the same time, there are anti-ocular telemedicine bills either on the table or expected to arrive on in the table in four states – Connecticut (HB 6012 by Rep. Kevin Ryan), Minnesota (HF 1031 by Rep. Tama Theis; SF 985 by Sen. Karin Housley) , Nevada (AB 129 by Rep. Jill Tolles) and New Mexico (HB 364 by Rep. Deborah Armstrong) that will impose much of the same.
The use of state legislatures to preserve the profits of an industry in the face of competition is sheer crony capitalism at best and a violation of antitrust laws at worst. After all, even the American Optometric Association acknowledges that eye health examinations are only necessary once every two years for healthy adults, not every time an eye checkup is needed. There is a clear difference between a contact lens exam and an eye health exam that these lobbyists are all too happy to ignore.
The efforts of Big Eye are remarkable in that they have so clearly endeavored to use state legislatures to deny beneficial services to the American people in preservation of profits derived from an obviously atavistic and outdated service model.
The preemption of state legislation by the federal government is one possible tactic to end these protectionist practices. The regulation of telemedicine is undertaken by not less than 3 federal agencies: The Federal Trade Commission, the Federal Communications Commission and the Department of Agriculture. The teachings of the seminal U.S. Supreme Court decision in Fidelity Federal Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982), advise that federal regulations have the same force and effect as federal statutes when applying the Supremacy Clause, U.S. Constitution Article 6, clause 2, to abrogate state law that conflicts with federal or constitutional law.
The efforts to lobby and ban ocular telemedicine destroys the consumer-friendly technological advancements of telemedicine that embody sheer crony capitalism in favor of a technologically backward single industry that is contrary to the best interests of the consuming public.
One would have to be blind to not see that these actions of state legislatures are designed to artificially enrich Big Eye by being protectionist and anti-competitively destructive of the market place and individual liberty. The founding fathers could not have envisioned such an offense to the people.
W Bruce DelValle is a litigator and founding member of the Washington, D.C. constitutional law, commercial and civil litigation firm Fein & DelValle PLLC. He graduated from Penn State University and worked as a nuclear engineer prior to attending Washington and Lee School of Law. This column was originally published by The Hill on March 19, 2017