FTC Staff Comment to Washington State Rep. Paul Graves, regarding S.S.B. 5411/H.B. 1473

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
Bureau of Economics
February 9, 2018
The Hon. Paul Graves
State of Washington, House of Representatives
469 John L. O’Brien Bldg.
P.O. Box 40600
Olympia, WA 98504-0600
Dear Representative Graves:
We appreciate the opportunity to respond to your invitation for comments on the likely
competitive impact of Substitute Senate Bill 5411/H.B. 1473 (“the Bill”).1 In particular, you
asked us to comment on the likely impact of the proposed legislation on Washington consumers
and the market. If adopted, the Bill would require licensed ophthalmologists and optometrists to
conduct an in-person, comprehensive eye examination before providing prescriptions for
eyeglass and contact lenses. This requirement would restrict the use of telehealth eye care in
which a practitioner distant from a patient uses data received by telecommunications as the basis
for a prescription for corrective lenses.
We are concerned that the Bill may reduce competition, access, and consumer choice in
eye care and might also raise costs for consumers.2 First, the Bill’s requirements would restrict
the use of telehealth eye care by qualified vision care providers, which would deny consumers
the benefits of innovative eye care telehealth technologies. Second, the Bill might require
unnecessary services by mandating a comprehensive examination before prescribing corrective
lenses, regardless of the patient’s visual health status, examination history, or other
circumstances. This requirement could override the judgment of a vision care provider who
otherwise would have concluded that the standard of care could be met with more limited
services, either in-person, or if allowed, by telehealth.
Accordingly, we encourage the legislature to consider the potential effects of the Bill on
competition in the provision of eye care and to avoid restrictions that override the judgment of
practitioners and are not narrowly tailored to address well-founded patient safety concerns.
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I. 	Interest and Experience of the Federal Trade Commission
The FTC is charged under the FTC Act with preventing unfair methods of competition
and unfair or deceptive acts or practices in or affecting commerce.3 Competition is at the core of
America’s economy,4 and vigorous competition among sellers in an open marketplace gives
consumers the benefits of lower prices, higher quality products and services, and increased
innovation. Because of the importance of health care competition to the economy and consumer
welfare, anticompetitive conduct in health care markets has long been a key focus of FTC law
enforcement,5 research,6 and advocacy.7 Many of our recent advocacy comments, including
several about eye care, have addressed scope of practice and supervision requirements that may
unnecessarily limit the range of procedures or services a practitioner may provide, or
unnecessarily restrict a particular type of practitioner from competing in the market.8
Telehealth is an area of particular interest to the FTC because of its potential to increase
the supply of available practitioners, encourage competition, and improve access to affordable,
quality health care. In a 2004 report, the federal antitrust agencies considered the competitive
effects of state restrictions on the interstate practice of telemedicine,9 and the central finding of
that analysis remains applicable today: “When used properly, telemedicine has considerable
promise as a mechanism to broaden access, lower costs, and improve health care quality.”10
More recently, FTC staff submitted comments to the Alaska legislature and the Department of
Veterans Affairs (VA) supporting proposals to allow licensed physicians to provide telehealth
services across state lines.11 FTC staff also recently commented on telehealth regulations
proposed by three Delaware occupational licensing boards.12 A common theme of these letters is
recommending that health care practitioners be allowed to use their own judgment in deciding
whether the use of telehealth services is appropriate under the circumstances. The conclusions of
the agencies’ 2004 report and these recent FTC staff comments, which support reduction of
unjustified barriers to telehealth, underpin this comment.13
II. 	Washington’s Proposed Legislation on Eye Care, S.S.B. 5411/H.B. 1473
The Bill would add a new chapter on eye care to Washington’s Business and Professions
Code14 that would make it unlawful for anyone, including both ophthalmologists and
optometrists, to write a prescription for eyeglasses or contact lenses if the patient has not
received an in-person, comprehensive eye examination.15 The Bill defines “comprehensive eye
examination” as “an assessment of the ocular health and visual status of a patient, in order to
establish a medical diagnosis and in connection with the establishment of the patient’s refractive
error.”16
The Bill specifically excludes from the definition of “comprehensive eye examination”
evaluations by ophthalmologists or optometrists based solely on the use of “remote
technology.”17 “Remote technology” is defined as “any automated equipment or testing device
and any application designed to be used on or with a phone, computer, or internet-based device”
used for the “purpose[] of determining an individual’s apparent refractive error without the
physical presence and actual participation of a qualified vision care provider.”18
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In sum, the Bill would prevent licensed ophthalmologists and optometrists from writing
prescriptions for corrective lenses based on data from technology close to the patient but remote
from the practitioner. Although the Bill does not specifically refer to telehealth or telemedicine,
“remote technology” facilitates a form of telehealth, in which a practitioner distant from the
patient uses telecommunications to provide health care services.19
The Bill would also affect the level of care required in-person (as well as that provided by
a distant practitioner), because all examinations leading to a prescription would have to be
“comprehensive” – including an assessment of ocular health as well as the determination of
refractive error. The Bill would make no exceptions to the requirement of an in-person,
comprehensive eye examination based on, for example, whether a prescription is initial or
renewal, a patient’s age, or other potential risk factors.
The Bill purports to hold practitioners who use remote technology as the basis for a
prescription to the same standards of practice that apply in-person.20 It is difficult to understand
when this provision would apply, however, because the Bill requires an in-person,
comprehensive examination in connection with all corrective lens prescriptions.
The Bill’s comprehensive examination requirement would be a significant departure from
Washington’s current laws and rules applicable to vision care providers, especially
ophthalmologists. Washington’s current optometric rules require a comprehensive eye
examination for contact lens prescriptions,21 but the optometric practice act and rules have no
comparable requirement for prescription of eyeglass lenses.22 For ophthalmologists,
Washington’s laws and rules have no specific requirements for contact or eyeglass lens
prescriptions, or the nature of an eye examination.23
III. 	Likely Competitive Impact of S.S.B. 5411/H.B. 1473
Generally, competition in health care markets benefits consumers by containing health
care prices, expanding access and choice, and promoting innovation. Telehealth can potentially
increase the supply of accessible practitioners and thereby enhance price and non-price
competition, reduce transportation expenditures, and improve access to quality care. 24 Many
health care professionals and expert bodies support the use of telehealth to address challenges to
health care access arising from an aging population, health care workforce shortages, and
geographic and other maldistributions of providers that can lead to shortages in urban as well as
rural areas.25
Despite these recognized benefits, the Bill would limit competition, access, and choice in
vision care, and potentially increase costs, in two ways: (1) by requiring that all prescriptions for
corrective lenses be determined in-person; and (2) by requiring that all prescriptions for
corrective lenses be based on a comprehensive eye examination.
A. In-Person Examination Requirement for Prescriptions
The Bill would restrict the use of innovative technologies, such as online vision tests and
teleophthalmological examinations, that could benefit Washington consumers who seek to use
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telehealth rather than in-person vision care. When a consumer takes an online visual acuity and
refraction test, a practitioner (typically a licensed ophthalmologist) who is not physically present
with the patient interprets the results and may provide a prescription for corrective lenses. Such
tests do not include an in-person examination of the eye. These tests typically are used for
prescription renewals for young adults with a low risk of ocular disease; they are not appropriate
for all patients and circumstances.26
Refraction tests that do not require an in-person visit to a vision care provider could be a
convenient option for the approximately 60% of American adults aged 18-44 who use some form
of vision correction, such as prescription eyeglasses or contacts.27 Indeed, the American
Academy of Ophthalmology (AAO) has acknowledged that online vision tests may be
appropriate for young adults seeking a prescription for corrective eyeglasses, if they have no eye
conditions or risk factors for ocular disease.28 Telehealth evaluation of online vision tests taken
at home also could be especially helpful to disabled individuals who have difficulty making a
trip to obtain in-person care. The availability of this option could potentially improve access to
refraction services in the 24 percent of U.S. counties that have no optometrists or
ophthalmologists.29 In addition, refraction tests that can be taken in a patient’s home and
evaluated by a distant ophthalmologist may reduce transportation costs and be less costly to the
consumer than in-person care, particularly care that includes a comprehensive examination.30
The Bill could also limit the use of telehealth ophthalmological examinations that screen
for ocular disease and include a refraction test used to prepare a prescription for corrective
lenses.31 Unlike online refraction tests that can be taken at home, such screening relies on
specialized equipment at a clinic, where an ophthalmic technician32 assists the patient and sends
the results to a distant ophthalmologist who evaluates the data for abnormal ocular conditions.
The Department of Veterans Affairs has successfully used such a program to screen for serious
ocular disease and prescribe eyeglasses using auto-refraction equipment.33 A study of that
program concluded that teleophthalmology “has the potential to improve operational efficiency,
reduce cost, and significantly improve access to care.”34
The AAO reached a similar conclusion with respect to the potential benefits of the use of
various technologies for remote eye care. Indeed, the AAO stated that it “recognizes the potential
of information technology, including Internet-based screening, refraction, and other diagnostic
tests, in increasing access to health care services, enhancing patient involvement in their health
care decision making, improving efficiency, and reducing overall health care costs.”35
The Bill’s rigid restrictions on the use of telehealth in eye care would limit the supply of
available telehealth practitioners and appear unnecessary to protect consumers. As discussed in a
number of FTC staff advocacy comments, in-person examination requirements prevent qualified,
licensed telehealth providers from providing care that they otherwise would deem appropriate.
Accordingly, such restrictions potentially reduce competition, innovation, consumer choice, and
the quality of care, while increasing price.36
A better alternative to rigid restrictions is to allow qualified licensees to determine
whether to use telehealth when it is sought by a patient. Leaving this determination to the
practitioner is the approach suggested by the Guideline on the Appropriate Use of Telemedicine
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of the Medical Quality Assurance Commission of the State of Washington (“MQAC”). Under
the Guideline, the “practitioner may provide any treatment deemed appropriate for the patient . . .
and is responsible for knowing the limitations of the care he or she can provide, no matter how
the care is delivered.”37 The AAO has a similar policy, advising ophthalmologists to evaluate the
use of remote technologies such as internet-based screening and refraction as they would any
other diagnostic modality.38 Holding telehealth practitioners to an in-person standard of care, as
is the policy of the MQAC as well as many health professional organizations and state rules,
would ensure patient health and safety.39
B. Requirement of a Comprehensive Eye Examination for Prescriptions
The Bill’s requirement of a comprehensive eye examination for all corrective lens
prescriptions would limit consumer choice and increase consumer expenditures on eye care.
Although the Bill defines a comprehensive examination as an assessment of ocular health
and visual status, neither the Bill nor the current rules requiring optometrists to conduct
comprehensive examinations for contact lens prescriptions set forth the elements of a
comprehensive eye examination. 40 The National Academies of Science, Engineering and
Medicine have defined a comprehensive eye examination as an in-person clinical encounter
intended to diagnose and treat any eye disease, based on a “dilated eye examination that may
include a series of assessment and procedures to . . . assess eye and vision health . . . .”41
Typically, such procedures include assessment of eye movement and alignment; examination of
pupils, iris, cornea, lens, optic nerve, and retina; and determination of intraocular pressure.42
Although comprehensive eye examinations are necessary to detect and diagnose ocular
abnormalities and diseases of the eye, expert policies and guidelines suggest that this type of
exam may not be necessary each time a prescription is written, at least for some individuals.43
Rather, screenings, refractions, or less extensive evaluations may be appropriate for patients with
no risk factors.44 Indeed, the AAO has concluded that “routine comprehensive annual adult eye
examination in individuals under the age of 40 unnecessarily escalates the cost of eye care” and
is not indicated unless there are other risk factors.45 According to the AAO, the need for a
comprehensive examination should be determined by “the patient’s condition, symptoms, and
the ophthalmologist’s medical judgment.”46 In sum, the Bill’s rigid requirement of a
comprehensive eye examination for every prescription for corrective lenses appears to be
inconsistent with expert guidelines, and may subject patients to unnecessary procedures and
unnecessarily increase health care expenditures.
Accordingly, we encourage the legislature to consider whether requiring licensed
ophthalmologists and optometrists to conduct an in-person, comprehensive eye examination for
every corrective lens prescription will improve consumer welfare. Well-intentioned laws and
regulations may impose unnecessary, unintended, or overbroad restrictions on competition,
thereby depriving health care consumers of the benefits of vigorous competition.47 We suggest
that regulators consider whether a restriction that could limit entry or access is narrowly tailored
to the legitimate goals of the restriction, such as health and safety, and whether other provisions
in the law or regulations already achieve, or could achieve, such goals through less competitively
restrictive means.
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In particular, we encourage the legislature to consider whether the goals of the Bill could
be achieved by relying on the judgment of qualified vision care practitioners to determine
whether to use telehealth, the appropriate type of examination, and the level of care that should
be provided. Allowing the licensee to make these determinations puts the decision in the hands
of the expert in the best position to address health and safety considerations while ensuring the
greatest possible access to care. Moreover, this approach could enhance the availability of safe
and appropriate telehealth-based eye care services, promote greater provider competition, reduce
health care costs and prices, improve quality, and increase access to underserved locations or for
patients for whom travel is a particular challenge.
IV. 	Conclusion
By requiring an in-person, comprehensive eye examination for all corrective lens
prescriptions, the Bill would restrict the use of innovative telehealth eye care technologies, and
also could require examinations that are more extensive and costly than necessary.
To ensure that the benefits of competition in the provision of vision care services are
fully available to Washington state consumers, we suggest that the legislature consider the goals
of the proposed legislation, and whether an inflexible in-person, comprehensive examination
requirement is necessary to achieve those goals. As part of that analysis, we encourage the
legislature to consider whether legitimate health and safety justifications support the proposed
restrictions, or whether allowing licensees to decide the nature of the examination and whether
and under what circumstances to use telehealth would better promote competition and access to
safe and affordable care.
Thank you for the opportunity to provide our views. We appreciate your consideration.
Respectfully submitted,
Tara Isa Koslov, Acting Director
Office of Policy Planning
Michael G. Vita, Acting Director
Bureau of Economics
D. Bruce Hoffman, Acting Director
Bureau of Competition
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1 Substitute S.B. 5411, 65th Leg., 2017 Reg. Sess. (Wa. 2017) (“S.S.B. 5411”); H.B. 1473, 65th Leg., 2017 Reg. Sess.
(Wa. 2017). This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Economics, and Bureau of Competition. The letter does not necessarily represent the views of the Federal Trade
Commission or of any individual Commissioner. The Commission, however, has voted to authorize us to submit
these comments.
2 General health insurance plans, both public and employer-based, often offer limited or no coverage of routine
vision care services. Although vision care coverage can be obtained through stand-alone vision care plans, surveys
suggest that a large portion of adults in the United States do not have vision insurance covering comprehensive eye
examinations, eyeglasses, and contact lenses. Thus, many consumers bear the costs of vision care and the lack of
insurance coverage is a major barrier to obtaining care. See N ATIONAL ACADEMIES OF SCIENCES, E NGINEERING, AND
M EDICINE , M AKING E YE H EALTH A P OPULATION H EALTH I MPERATIVE : V ISION FOR T OMORROW 286-288 (2016)
[hereinafter N ATIONAL ACADEMIES, M AKING E YE H EALTH A P OPULATION H EALTH I MPERATIVE ].
3 Federal Trade Commission Act, 15 U.S.C. § 45.
4 Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long has been faith
in the value of competition.”).
5 See generally M ARKUS H. M EIER ET AL., FTC, O VERVIEW OF FTC ACTIONS IN H EALTH C ARE SERVICES AND
P RODUCTS, https://www.ftc.gov/tips-advice/competition-guidance/industry-guidance/health-care (most recent
version under “Core Health Care Competition Documents”).
6 See, e.g., FTC & U.S. D EP’T OF J USTICE , I MPROVING H EALTH C ARE : A D OSE OF COMPETITION (2004),
http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf.
7 FTC and staff advocacy can include letters or comments addressing specific policy issues, Commission or staff
testimony before legislative or regulatory bodies, amicus briefs, or reports. See, e.g., Comment from FTC Staff to
Sue M. Kornegay, NC State Board of Opticians (Jan. 13, 2011),
https://www.ftc.gov/sites/default/files/documents/advocacy documents/ftc-staff-comment-north-carolina-state-
board-opticians-concerning-proposed-regulations-optical-goods/1101ncopticiansletter.pdf (questioning rules
proposed by the North Carolina Board of Opticians that would restrict retail sales of contact lenses and eyeglasses);
Brief of Amicus Curiae FTC in Support of No Party, In re Nexium (Esomeprazole) Antitrust Litig., No. 15-2005
(1st. Cir. Feb. 12, 2016), https://www.ftc.gov/system/files/documents/amicus briefs/re-nexium-esomeprazole-
antitrust-litigation/160212nexiumbrief.pdf; FTC STAFF, P OLICY PERSPECTIVES: C OMPETITION AND THE REGULATION
OF ADVANCED P RACTICE N URSES (“APRN S”) (2014), https://www ftc.gov/system/files/documents/reports/policy-
perspectives-competition-regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf (presenting an overview
of FTC staff comments regarding APRNs, and an in depth analysis of the competitive effects of statutes and rules
governing APRN scope of practice and supervision).
8 See, e.g., Letter from Marina Lao, Dir., Off. of Pol’y Planning, Fed. Trade Comm’n, & Robert Potter, Chief, Legal
Pol’y Sec., Antitrust Div., U.S. Dep’t of Justice, to Hon. Jose L. Báez Rivera, Puerto Rico Cámara de
Representantes (May 18, 2016), https://www ftc.gov/system/files/documents/advocacy documents/joint-comment-
federal-trade-commission-staff-antitrust-division-puerto-rico-senate-bill-991-
which/160518puertoricanmedication.pdf (evaluating competitive considerations regarding Puerto Rico legislation to
allow optometrists to use and prescribe certain medications); Letter from Marina Lao, Dir., Off. of Pol’y Planning,
Fed. Trade Comm’n, & Robert Potter, Chief, Legal Pol’y Sec., Antitrust Div., U.S. Dep’t of Justice, to Hon. Bradley
H. Jones, Jr., Mass. House of Representatives (Feb. 18, 2016),
https://www.ftc.gov/system/files/documents/advocacy documents/ftc-usdoj-joint-comment-massachusetts-house-
representatives-regarding-house-bill-1973-allow-non/160218optometrycomment.pdf (evaluating competitive
considerations regarding Massachusetts legislation to lessen scope-of-practice restrictions on Massachusetts
optometrists in the treatment of glaucoma). Most FTC staff competition advocacy comments have focused on
proposed state-level changes to statutes and rules. See, e.g., FTC STAFF, P OLICY P ERSPECTIVES, supra note 7.
9 See FTC & U.S. D EP’T OF J USTICE , supra note 6, ch. 2, at 30 (section on “State Restrictions on the Interstate
Practice of Telemedicine”). More recently, FTC staff held a workshop series, Examining Health Care Competition,
where a panel on Innovations in Health Care Delivery explored competition issues related to telehealth. See
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Transcript of Examining Health Care Competition Workshop 67-122, Fed. Trade Comm’n (Mar. 20, 2014),
https://www.ftc.gov/system/files/documents/public events/200361/transcriptmar20.pdf.
10 FTC & U.S. D EP’ T OF J USTICE , supra note 6, Executive Summary at 23.
11 See Comment from FTC Staff to the Director, Regulation Pol’y and Mgmt., Dep’t of Veterans Affairs (Nov. 1,
2017), https://www ftc.gov/system/files/documents/advocacy documents/ftc-staff-comment-department-veterans-
affairs-regarding-its-proposed-telehealth-rule/v180001vatelehealth.pdf (supporting the VA’s proposed rule that
would clarify the authority of VA health care providers to provide telehealth services to or from non-federal sites
regardless of whether the provider is licensed in the state where the patient is located); Comment from FTC Staff to
Steve Thompson, Representative, Alaska State Legislature (Mar. 25, 2016), https://www ftc.gov/policy/policy-
actions/advocacy-filings/2016/03/ftc-staff-comment-alaska-state-legislature-regarding (regarding telehealth
provisions in Senate Bill 74, which would allow licensed Alaska physicians located out-of-state to provide telehealth
services).
12 See Comment from FTC Staff to the Delaware Bd. of Speech/Language Pathologists, Audiologists & Hearing Aid
Dispensers (Nov. 29, 2016), https://www ftc.gov/system/files/documents/advocacy documents/ftc-staff-comment-
delaware-board-speech/language-pathologists-audiologists-hearing-aid-dispensers-regarding-its-proposed-revisions-
its/161130 ftc dealers final .pdf; Comment from FTC Staff to the Delaware Board of Dietetics/Nutrition (Aug. 16,
2016), https://www ftc.gov/system/files/documents/advocacy documents/ftc-staff-comment-delaware-board-
dietetics/nutrition-regarding-its-proposed-telehealth-regulation/de telehealth-nutrition-v160015.pdf; and Comment
from FTC Staff to the Delaware Board of Occupational Therapy Practice (Aug. 3, 2016),
https://www.ftc.gov/system/files/documents/advocacy documents/ftc-staff-comment-delaware-board-occupational-
therapy-concerning-its-proposed-telehealth-regulation/v160014 delaware ot proposed advocacy.pdf (regarding its
proposed telehealth regulation).
13 This advocacy also draws on knowledge acquired during the Innovations in Health Care Delivery panel of the
2014 FTC workshop, Examining Health Care Competition, supra note 9.
14 W ASH. REV. CODE tit. 18 (Business and Professions).
15 See S.S.B. 5411 § 3(1)(a).
16 Id. at § 2(1). The Bill would enforce the comprehensive examination requirement by making it illegal to sell
eyeglasses or contact lenses without a prescription, with the exception of magnification-only over-the-counter
eyeglasses. See S.S.B. 5411 §§ 2(8), 3(1)(b).
17 See S.S.B. 5411 § 2(1).
18 Id. at § 2(11) (emphasis added). See also id. at § 2(10) (“‘Qualified vision care provider’ means an
ophthalmologist or optometrist who performs eye examinations . . . .”).
19 While there is no single, universally accepted definition of telehealth or telemedicine, both terms “describe the use
of medical information exchanged from one site to another via electronic communications to improve the patient’s
health status.” B OARD ON H EALTH C ARE SERVICES, I NSTITUTE OF M EDICINE , T HE ROLE OF T ELEHEALTH IN AN
E VOLVING H EALTH C ARE E NVIRONMENT: W ORKSHOP SUMMARY 3, 134 (Tracy A. Lustig, Rappoteur) (2012),
http://www.nap.edu/catalog/13466/the-role-of-telehealth-in-an-evolving-health-care-environment. The use of remote
technology described in the Bill also fits the definition of telemedicine used by Washington state’s Medical Quality
Assurance Commission. See M EDICAL Q UALITY ASSURANCE COMMISSION, S TATE OF W ASHINGTON, G UIDELINE :
APPROPRIATE U SE OF T ELEMEDICINE 1, 2 (2014) (Telemedicine is “[t]he practice of medicine using enabling
technology between a practitioner in one location and a patient in another location with or without an intervening
practitioner.” Enabling technology includes technology and devices that are usually electronic and allow “a
practitioner to engage in Telemedicine.”).
20 See S.S.B. 5411 § 3(3).
21 See W ASH. ADMIN. CODE § 246-851-520 (2016) (A contact lens prescription “shall be based upon a
comprehensive vision and eye health examination, followed by a diagnostic or trial evaluation, and a final
evaluation of the contact lens on the eye by a prescribing doctor.”). The rules do not specify “in person,” but
8

comprehensive eye examinations typically include components, such as measurement of intraocular pressure and
examination of the interior surface of the eye (fundus), that would require a health practitioner, possibly a technician
or “telepresenter,” to assist the patient and operate specialized equipment. See infra note 42 and accompanying text;
April Y. Maa et al., Early Experience with Technology-Based Eye Care Services, 124 O PHTHALMOL. 539, 540
(2016). Under the Bill, it appears that only a “qualified vision care provider”—an optometrist or ophthalmologist—
could provide such assistance. See S.S.B. 5411 § 2(1), (10). With an in-person optometrist or ophthalmologist, it
would be unnecessary to provide services remotely.
22 See W ASH. REV. CODE tit. 18, chs. 53, 54; W ASH. ADMIN. C ODE § 246-851.
23 See W ASH. REV. CODE tit. 18, chs. 57, 71; W ASH. ADMIN. C ODE §§ 246-853, 246-919.
24 See, e.g., Comment from FTC Staff to Steve Thompson, supra note 11.
25 See generally Am. Acad. of Pediatrics, Policy Statement: The Use of Telemedicine to Address Access and
Physician Workforce Shortages, 136 P EDIATRICS 202, 203 (2015) (urban as well as rural children “face significant
disparities in access and time-distance barriers, which could be partly alleviated by the use of telehealth”); Hilary
Daniel & Lois Snyder Sulmasy, Policy Recommendations to Guide the Use of Telemedicine in Primary Care
Settings: An American College of Physicians Position Paper, 163 ANN. I NT. M ED. 787, app. (2015) (“Limited access
to care is not an issue specific to rural communities; underserved patients in urban areas have the same risks as rural
patients if they lack primary or specialty care . . . .”); Rashid L. Bashshur et al., The Empirical Foundations of
Telemedicine Interventions for Chronic Disease Management, 20 T ELEMED. & E -H EALTH 769, 770 (2014)
(“Differences in access to care reflect economic, geographic, and functional as well as social, cultural, and
psychological factors . . . . many residents of the inner city have limited access to medical resources for economic
reasons.”).
26 See, e.g., News Release, American Academy of Ophthalmology, American Academy of Ophthalmology Provides
Information to the Public on Online Vision Testing for Corrective Eyeglass Prescriptions (Sept. 15, 2015),
https://www.aao.org/newsroom/news-releases/detail/american-academy-of-ophthalmology-provides-informa. See
also Stephen Barlas, Vision Correction Goes Online, E YE N ET M AG., Aug. 2017, at 41, 42-44 (discussing the online
remote refraction industry and listing companies that provide telerefraction services).
27 See V ISION COUNCIL, V ISION W ATCH 21 (Sept. 2016) (in the 12 months ending Sept. 2016, 60.6% of Americans
aged 18-34, and 62.2% of those aged 35-44 used some form of vision correction).
28 See News Release, American Academy of Ophthalmology, supra note 26 (discussing the use of online vision tests
by people from 18-39 years of age).
29 See Diane M. Gibson, The geographic distribution of eye care providers in the United States: Implications for a
national strategy to improve vision health, 73 P REVENT. M ED. 30 (2015). But see Cecelia S. Lee et al., Evaluating
access to eye care in the contiguous United States by calculated driving time in the United States Medicare
population, 123 O PHTHALMOL . 2456 (2016) (finding that 90% of the Medicare population lives within a 30 minute
drive of an ophthalmologist and a 15 minute drive to an optometrist). These sources are cited for their data on the
distribution of eye care providers, not to imply that vision tests without comprehensive examinations are appropriate
for Medicare beneficiaries.
30 Although online refraction tests may be less costly than in-person services that include an eye examination as well
as refraction, patients who have insurance should consider its coverage of eye examinations and refraction services
when comparing costs. Refraction services may not be covered, even if conducted in-person. See, e.g., Sue Vicchrilli
et al., Testing Services, Part Four: Tests Performed by Staff, E YE N ET M AG., Aug. 2012, at 49 (discussion of CPT
92015). Washington Medicaid (Apple Health) covers eye examination and refraction services for asymptomatic
adults every two years, and also covers non-emergency transportation services. However, Washington Medicaid
likely would not cover online refractive services without an associated office visit. See W ASHINGTON APPLE
H EALTH (M EDICAID), P HYSICIAN -RELATED SERVICES/H EALTH C ARE P ROFESSIONAL SERVICES B ILLING G UIDE 77-
78, 183, 188 (Oct. 1, 2017); W ASH. ADMIN. CODE §§ 182-501-0065(2)(y), 182-531-1000(1), 182-531-1730. Thus,
online testing may reduce consumer costs primarily for those without vision care insurance.
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31 See, e.g., Maa et al., supra note 21, at 539 (2016). Visual acuity and refraction tests for prescription of corrective
lenses are not necessarily included in teleophthalmology screening for serious disease. See, e.g., Steven L.
Mansberger et al., Long-term Comparative Effectiveness of Telemedicine in Providing Diabetic Retinopathy
Screening Examinations: A Randomized Clinical Trial,133 JAMA O PHTH. 518, 519 (2015) (discussing need for
comprehensive exam in addition to screening for diabetic retinopathy).
32 An ophthalmic technician is not a “qualified vision care provider” under the Bill. See S.S.B. 5411 § 2(10). The bill
appears to permit the use of “remote technology” to conduct a comprehensive examination with the “involvement or
supervision of a qualified vision care provider.” S.S.B. 5411 § 2(1). However, this provision may not apply when a
technician assists the patient, because a qualified, but distant, vision care provider may not suffice for the required
“involvement or supervision.” The bill does not specifically provide for supervision by a distant practitioner.
33 Ophthalmic technicians at a VA clinic collected screening data for diabetic retinopathy, cataract, age-related
macular degeneration, and glaucoma; an auto-refractor was used to determine visual acuity and refractive status. The
data were evaluated by an ophthalmologist at a VA hospital who prescribed eyeglasses. The need to remake
eyeglasses prescribed with the use of auto-refraction (i.e., the rate of refraction inaccuracy) was comparable to that
for in-person refractions. See Maa et al., supra note 21, at 540-543. As a form of “automated equipment,” an auto-
refractor is presumably considered “remote technology” under the Bill, and would likely not meet the requirements
for a comprehensive examination with the qualified vision care provider at a different location. See supra notes 17,
18, and 32. If so, similar telehealth programs that use auto-refraction and technicians to assist the patient would be
prohibited under the Bill.
34 See Maa et al., supra note 21, at 539.
35 AMERICAN ACADEMY OF O PHTHALMOLOGY, I NFORMATION STATEMENT: I NNOVATIVE T ECHNOLOGIES IN
D IAGNOSING E YE D ISEASES AND CONDITIONS (2014), https://www.aao.org/clinical-statement/innovative-
technologies-in-diagnosing-eye-diseases.
36 See Comment from FTC Staff to the Delaware Bd. of Speech/Language Pathologists, Audiologists & Hearing Aid
Dispensers, supra note 12, at n.55, and accompanying text.
37 See M EDICAL Q UALITY ASSURANCE COMMISSION, supra note 19, at 4.
38 See AMERICAN ACADEMY OF O PHTHALMOLOGY, supra note 35. As the AAO notes, the practitioner would
potentially bear the risk of any harm to the patient, e.g., for a missed diagnosis or breach of PHI. Id.
39 See M EDICAL Q UALITY ASSURANCE COMMISSION, supra note 19, at 3 (Washington state practitioners “using
Telemedicine will be held to the same standard of care as practitioners engaging in more traditional in-person care
delivery”); Comment from FTC Staff to the Delaware Bd. of Speech/Language Pathologists, Audiologists &
Hearing Aid Dispensers, supra note 12, nn.53, 54, and accompanying text.
40 See supra notes 16, 21 and accompanying text.
41 N ATIONAL ACADEMIES, M AKING E YE H EALTH A P OPULATION H EALTH I MPERATIVE , supra note 2, at 32, Table 1-
1.
42 Typical procedures in a comprehensive eye examination include visual acuity testing; assessment of eye
movement and alignment; refraction; examination of pupils, iris, cornea, lens, optic nerve, and retina; visual field
testing; determination of intraocular pressure; and dilation. Id. at 327, 328. See also Robert S. Feder et al., American
Academy of Ophthalmology, Preferred Practice Pattern: Comprehensive Adult Medical Eye Evaluation, 123
O PHTHALMOL. P209, 222-23 (2016).
43 See, e.g., N ATIONAL ACADEMIES, M AKING E YE H EALTH A P OPULATION H EALTH I MPERATIVE , supra note 2, at
331, Table 7-1 (Comparison of AAO and American Optometric Association (AOA) Guidelines; AAO
recommendation of comprehensive eye examination every 5-10 years for adults under 40 without risk factors; AOA
recommendation of at least every 2 years for that group.).
44 See Feder et al., American Academy of Ophthalmology, supra note 42, at 224.
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45 AMERICAN ACADEMY OF O PHTHALMOLOGY, P OLICY S TATEMENT ON THE FREQUENCY OF O CULAR E XAMINATIONS
3 (2015), https://www.aao.org/clinical-statement/frequency-of-ocular-examinations.
46 Feder et al., American Academy of Ophthalmology, supra note 42, at 224.
47 See FTC STAFF, P OLICY P ERSPECTIVES, supra note 7. See also T HE W HITE H OUSE , O CCUPATIONAL L ICENSING: A
FRAMEWORK FOR P OLICYMAKERS 30 (2015),
https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing report final nonembargo.pdf (excessively
stringent restrictions on the services that a practitioner can provide may limit the supply of labor, restrict
competition, restrict access to services, and increase the price of services).
11