Date of Hearing: January 14, 2020

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Evan Low, Chair

ABPCA Bill Id:AB 156

Author:(Voepel) – As Introduced Ver:January 7, 2019

SUBJECT: Eye care: remote assessment.

SUMMARY: Prohibits a person from operating an assessment mechanism to conduct an eye assessment or to generate a prescription for contact lenses or visual aid glasses to a patient at a California residence except for under certain conditions.

EXISTING LAW:

1. Establishes the California State Board of Optometry (CBO) for the licensure and regulation of optometrists, registered dispensing opticians, contact lens dispensers, spectacle lens dispensers, and nonresident contact lens dispensers. (Business and Professions Code (BPC) §§ 3000 et seq.)
2. Establishes the Medical Board of California for the licensure and regulation of physicians and surgeons, including ophthalmologists specializing in the diagnosis and treatment of eye disorders. (BPC §§ 2000 et seq.)
3. States that protection of the public is the highest priority of the CBO in exercising its licensing, regulatory, and disciplinary functions. (BPC Section 3010.1)
4. Makes it unlawful for a person to engage in or advertise the practice of optometry without having first obtained an optometrist license from the CBO. (BPC § 3040)

THIS BILL:

1. Defines various terms used in the bill including “assessment mechanism,” “eye assessment,” “diagnostic information and data,” and “visual aid glasses.”
2. Prohibits a person from operating an assessment mechanism to conduct an eye assessment or to generate a prescription for contact lenses or visual aid glasses to a patient at a California residence except for under certain conditions.
3. Prohibits an assessment mechanism from ever being used for patients under 18 years of age or for patients who have not received an in-person comprehensive eye health examination by an optometrist or physician and surgeon within the previous 24 months.
4. Subjects persons who violate that prohibition to a civil penalty of not more than $10,000 in an action brought by the Attorney General.

FISCAL EFFECT: Unknown; this bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the author.

Background. As advancing technologies have sought to modernize health care delivery and improve patient access to care, policy discussions have persisted around how disruptions to traditional practice may result in the weakening of consumer protections. The optometric profession has been no exception. In particular, several companies have been involved in the development of products aimed at increasing the convenience of obtaining an updated prescription for corrective lenses, which would allow patients to receive that prescription through the use of a smartphone or computer without having to visit an optometrist’s office.

These so-termed remote eye assessment products have been the topic of debate within the optometric practice and have received substantial scrutiny by regulators. In April of 2016, the American Optometric Association (AOA) filed a formal complaint with the federal Food and Drug Administration (FDA), alleging that a platform marketed by a tech company called Opternative posed significant health risks to the public, including the potential for inaccurate prescriptions, missed diagnosis of serious eye conditions, and the creation of a prescription without significant input from an eye doctor.

In February of 2018, the Federal Trade Commission (FTC)’s Office of Policy Planning weighed in on proposed legislation in the State of Washington that would require licensed ophthalmologists and optometrists to conduct an in-person, comprehensive eye examination before providing prescriptions for eyeglass and contact lenses. The FTC argued against the bill, stating that “we are concerned that the Bill may reduce competition, access, and consumer choice in eye care and might also raise costs for consumers.” This stance was supported by various companies actively working to innovate within the remote eye assessment technology space.

Subsequently, in August of 2019, the FDA issued a medical device recall for the Opternative product (now marked under the name Visibly). Officially, the cause for the recall was Visibly’s failure to submit a marketing application and receive clearance from the FDA. The decision was cheered by the AOA and other representatives of the traditional optometric profession.

Notwithstanding the FDA’s decision regarding Visibly, other companies continue to market remote eye assessment products, with myriad distinctions making it difficult to tell whether there will be the same issues with those platforms as well. The dialogue about how to appropriately balance patient access and convenience against perceived circumvention of traditional consumer protection safeguards continues. Both within the federal government and within state legislatures, the future of policy in this technology space still remains clear, and it is likely premature to predict what ultimate outcome will be determined as in the best interest of patients.

ARGUMENTS IN SUPPORT:

None on file.

ARGUMENTS IN OPPOSITION:

TechNet, representing an association of technology companies including those offering remote eye assessment products, writes in opposition. TechNet states that “AB 156 will effectively ban ocular telemedicine/online vision testing, denying California consumers with access to innovative eye care technologies that lower costs and provide access to care.” TechNet argues that “online vision testing and ocular telemedicine allow consumers access to a safe, affordable, convenient solution for necessary eye care.”

POLICY ISSUE(S) FOR CONSIDERATION:

In light of the persistent uncertainty regarding the appropriate policy for regulating remote eye assessment products and technology platform-based vision tests, this bill may be premature and discussions should continue both federally and within California prior to enacting any comprehensive new laws on the topic. The author should identify other ways of empowering the State of California in its efforts to promote safe, effective vision care in lieu of pursuing new policy in a space that remains the topic of productive debate.

AMENDMENTS:

The committee has suggested, and the author has agreed to accept, the following amendments:

1. To postpone consideration of the bill’s provisions relating to remote eye assessment while allowing discussions to continue:

Strike the current contents of the bill.

1. To ensure that the California State Board of Optometry has adequate resources to carry out its existing public protection mission and serve the needs of both California optometric professionals and their patients:

Amend Section 3152 of the Business and Professions Code to expressly authorize the CBO to charge a fee of $50, increasable up to $100, in exchange for endorsing licenses for licensees seeking to become licensed in other states.

REGISTERED SUPPORT:

None on file.

REGISTERED OPPOSITION:

1-800-CONTACTS
American Telemedicine Association
Americans for Tax Reform
Americans for Vision Care Innovation
National Association of Optometrists and Opticians
TechNet
Warby Parker

Analysis Prepared by: Robert Sumner / B. & P. / (916) 319-3301