Texas optometrists mount defense in court and legislature of landmark law on vision plan abuses

Two years after celebrating passage of its first-in-the-nation law curbing anti-competitive practices by vision benefits managers (VBMs), optometry’s advocates in Texas are back in the legislature. 

H.B. 3211 was filed Feb. 24 to improve access to vision care, counteracting VBM aim to limit optometrists’ participation as in-network providers.  

“This bill is a continuation of efforts by the Texas legislature, which passed H.B. 1696 in 2023 to address anti-competitive practices in the vision benefits market,” says Tommy Lucas, O.D., director of advocacy for the Texas Optometric Association (TOA). 

“They’re trying to tilt the playing field in their favor,” Dr. Lucas adds. “Basically, they’re thumbing their noses at the state legislature.” 

What did the landmark H.B. 1696 do? 

H.B. 1696 broke new ground for Texas optometrists—and potentially for doctors of optometry across the country in their fights to end abuses by VBMs. Signed by Texas Gov. Greg Abbott in June 2023, the law’s passage reflected a decade of planning, pushing and persevering by the TOA. 

Specifically, it will prevent grievous abuses by vision benefit plans, such as: 

• Patient steering. Plans cannot encourage or incentivize patients to seek services at any particular in-network provider, or at locations, retailers or e-commerce sites that the plan owns or affiliates with. 

• Doctor tiering. Plans cannot tier in-network providers based on noncovered service discounts, amount doctors spend on products or brands, etc. 

• Practice control. Plans cannot offer different fee schedules based on doctors’ practice or business decisions, such as lab or supplier choice or affiliations. 

•  Chargebacks. Plans cannot utilize chargebacks when the plan is not paying for the cost of goods to be delivered. 

• Covered services. Plans cannot call a product or service “covered” when there is no reimbursement from the plan to the doctor nor can plans require doctors to provide a covered service or product at a loss. 

• Requiring unrelated information on claims. Plans cannot require reporting of unrelated or unneeded patient information to file a claim or receive reimbursement, e.g., prescription information or facial measurements and photographs. 

• Extrapolation in audits. Vision plans cannot use extrapolation as a technique to complete an audit. 

Further, Texas’ law requires plans to provide transparency about in- and out-of-network coverage for patients and doctors, as well as requires a 90-day notice for contract changes. Importantly, the law also empowers doctors to call out violations directly to the state. 

Not long after H.B. 1696’s signing, Dr. Lucas says, the VBMs hatched plots to get around the law. Not only did they go to court, but they also made contracts with doctors “evergreen” so the insurer would not have to comply with parts of the new law. 

The newly proposed H.B. 3211 details the conditions for applying for and inclusion in a plan, including specifying what kind of information can be sought by the insurer and key delivery dates. 

Among its provisions: 

• Applications for licensed optometrists and therapeutic optometrists must be available online on VBM websites. 

• VBMs must utilize the same credentialing requirements for each applicant and allow each optometrist to be a plan participant to the full extent of their licensure. 

• Not later than the fifth day after the date the VBM receives an application that meets credentialing requirements, the plan must deliver to applicants a contract, including reimbursement fee schedules, provider handbooks and provider manuals. 

“H.B. 3211 strengthens patient choice by ensuring that any properly credentialed optometrist who agrees to the VBM’s contract terms can participate as an in-network provider—allowing Texans to see the optometrist of their choice when using their vision plan,” Dr. Lucas says. 

A timeline of VBM circumvention 

How did we get here? 

June 2023—H.B. 1696 is signed by the governor and is set to go into effect in September 2023. The celebration would soon be tempered.  

August 2023—Several vision plan plaintiffs file a suit in the U.S. District Court for the Northern District of Texas. Plaintiffs included Visionworks of America, Inc., the National Association of Vision Care Plans, Inc., VSP, and Healthy Vision Association. At the time, the judge denied the plaintiffs’ request for a temporary restraining order allowing these provisions to become effective. 

January 2024—The district court judge grants the TOA’s motion to intervene in the lawsuit, allowing the TOA to advocate alongside the State of Texas and the Attorney General’s office in defense of H.B. 1696. 

March 2024— The judge denies the state’s motion to dismiss and grants the temporary injunction against the anti-steering and anti-tiering provisions of H.B. 1696. The State of Texas appeals the decision to the 5th Circuit Court of Appeals, halting the continuation of the case in district court for the time being. 

February 2025—H.B. 3211 is introduced. 

The TOA has not been sitting idly by. 

The TOA is continuing its efforts with state legislators to shed light on VBM market concentration and tactics employed to disrupt access to care and essential doctor-patient relationships.  

“We hope that the Texas legislature will continue to examine what the VBMs are doing, which is walling-off patients into their vertically integrated profit systems and limiting available optometrists from joining their networks,” Dr. Lucas says. “VBMs cannot be in control of doctor or patient decision-making, and they cannot continue to threaten access to care as they have, just to suit their financial interests." 

Save the date!   

If AOA state affiliates are interested in elevating advocacy in their states, save these dates for the AOA State Government Relations Center (SGRC) Regional Advocacy Meetings in 2025.   

• Aug 15-16 in Chicago, Illinois  

• Oct. 24-25 in Phoenix, Arizona   

Registration will open soon, and additional details will come.