A battle is brewing in Texas as Lubbock ophthalmologist Peter M. Ho, MD, and eyewear chain National Vision Inc. have sued the Texas Optometry Board in hopes of overturning a law that bans optometrists from operating practices inside national eyewear chain stores.

The suit challenges the optometry board’s authority to regulate Dr. Ho’s practice, Texas Vision Associates, and calls the rule protectionist and anti-consumer.

Central to the dispute is that Dr. Ho’s practice offers eye exams in the same location where National Vision offers prescription eyewear. The Texas Optometry Act bans independent optometrists from sharing the same space as national eyewear providers. In the case of a chain operation, such as National Vision, an optometrist cannot occupy space in an eyewear business. Any related optometry business must be separated from the eyewear business by a floor-to-ceiling wall, and the two businesses may not share an entrance.

According to newspaper reports, Dr. Ho said the optometry board is unconstitutionally targeting his practice for competing with in-state optometrists by hiring his own optometrist and sharing space with an eyewear retailer. Also, the optometry board has reportedly threatened disciplinary action against optometrist Brian Kern, who is employed by Dr. Ho, for being in violation of the co-location rule. Requests for comment from Dr. Ho, his attorney and the Texas Optometry Board were all declined.

Face-Offs in Other States

Other states have faced similar battles. Earlier this year, the US Supreme Court rejected optical companies’ challenge to a California law—backed by optometrists—that prohibits eyeglass sellers from using their offices to conduct eye exams. The 1969 law bars opticians who sell eyewear from leasing space to eye doctors, while allowing doctors who check patients’ eyesight to also sell eyeglasses in their offices. A federal judge struck down the law in 2006, saying it was a protectionist measure designed to limit competition from out-of-state optical chains. But the 9th US Circuit Court of Appeals in San Francisco reinstated the law in two rulings in 2009 and 2012, saying it had the legitimate purpose of protecting California’s medically-trained optometrists from takeovers by large businesses.

In 2005, LensCrafters, along with several other interstate optical companies and their national trade association, appealed the district court’s summary judgment upholding the constitutionality of a Tennessee state statute that prohibits optical companies from leasing space to optometrists to perform eye exams in their retail eyewear stores. On appeal, LensCrafters claimed the provision violated the Commerce, Equal Protection and Due Process Clauses of the US Constitution. The 6th US Court of Appeals dismissed the suit and upheld a previous ruling.

In Virginia, state boards are immune from prosecution as part of a corporate practice prohibitions clause under state law. Despite this safeguard, Virginia has seen a repeated effort by LensCrafters, the National Association of Optometrists and Opticians, and big box stores to change the current legislation, according to Virginia Optometric Association Executive Director Bruce Keeney. However, all attempts have been defeated.

“Eight years or so ago, we even had to define the term, ‘in’,” Mr. Keeney says.

At that time, certain big-box stores attempted to circumvent Virginia’s law by leasing interior space to an ophthalmologist, who then arranged for a doctor of optometry to provide services in that office. The big-box stores argued the OD was practicing in the ophthalmologist’s office and not in the commercial or mercantile establishment. Noting the ophthalmologist’s office was still “in” the commercial establishment, the Virginia Optometric Association successfully had legislation enacted that defined “in,” so that this circumventing of Virginia law was clearly not permitted.