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Optometrists Want a Monopoly, Doctor Says

LUBBOCK (CN) - A Texas ophthalmologist claims the state's optometry board is unconstitutionally targeting his practice for "having the audacity" to compete with in-state optometrists by hiring his own optometrists and sharing space with an eyewear retailer.

Dr. Peter M. Ho and eyewear chain National Vision Inc. sued eight members of the Texas Optometry Board in Lubbock federal district court on October 7.

Ho's practice offers eye exams in the same location where National Vision offers prescription eyewear in order to provide convenience for his patients, but the defendants claim this arrangement is a "monopoly for optometrists," the complaint states.

Ophthalmologists are medical doctors who must complete medical school and residency. They are specialists in both medical and surgical eye issues. Optometrists, on the other hand, must attend a college of optometry. They are trained primarily about the eyes and do not receive a complete medical education regarding the entire body.

"The Optometry Board attempts to quash this legitimate competition by threatening an optometrist employed by Dr. Ho's practice," the 19-page complaint states. "But restricting Dr. Ho's employees in the course of their employment would be to regulate Dr. Ho's practice of medicine, an activity reserved to the Texas Medical Board. The Optometry Board is overreaching both its authority and its purpose." (section 1) The Texas Optometry Act bans independent optometrists from sharing the same space as national eyewear providers. (section 3) "In fact, the statute requires an actual separation - e.g., a floor to ceiling wall - between the two establishments, forcing patients to exit one office in order to enter the other," the complaint states. "There is no health and safety justification for such a physical and economic barrier - its effect is to reserve the single-stop business model for in-state optometrists only. This protectionist scheme prevents interstate competition in the Texas prescription eyewear market, needlessly increasing consumer prices and limiting consumer choice." (section 3) The plaintiffs argue the defendants are ignoring a physician exemption in the law that allows Ho to employ an optometrist who is subject to his "control, supervision, or direction" to attend to patients. (section 8) "[T]he plain language of the statute allows Dr. Ho to co-locate his practice with a national optical company such as National Vision and to employ an optometrist to treat patients in that location," the complaint stated. "To read the statute to prohibit Dr. Ho's arrangement with National Vision improperly ignores the physician exception intended by the Texas Legislature and is not supported by any health and safety rationale for the co-location rule." (section 9) The plaintiff contend an optometrist who is employed by a licensed physician is subject to the professional oversight and responsibility of the physician, who themselves are heavily regulated by state and federal laws other than the Texas Optometry Act.

"That comprehensive regulatory scheme amply protects Dr. Ho's patients in these circumstance," the complaint stated. (section 9) National Vision is the fourth largest optical retailer in the United States, with over 700 locations in 43 states, according to its web site. (link) The Texas Optometry Board did not respond to a request for comment.

The plaintiffs seeks a declaration that the defendants' interpretation of the Texas Occupation Code is unconstitutional. They also seeks injunctive relief from the defendant's enforcement.

The plaintiffs are represented by Fernando Bustos of Lubbock.

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