Saturday, March 10, 2018

Optometrists' bill to require online eye exams to be in 'real time' with an eye-care provider clears Senate health committee 6-4

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A bill to require a portion of an online eye exam to be in "real time" with an eye-care provider went to the Senate floor amid warnings it would restrict access to eye care and conflict directly with a tele-health bill that recently passed the Senate.

Rep. Jim Gooch
The Senate Health and Welfare Committee voted 6-4 on March 7 for House Bill 191, sponsored by Rep. Jim Gooch, R-Providence, after lengthy debate. As amended by the panel, the bill would require a "simultaneous interaction between the patient and the Kentucky-licensed optometrist, osteopath, or physician" for an eye exam or prescription online.

The bill also requires a person to be 18 to use the online services, that a medical history be obtained, that the person must have had an in-person eye exam within two years of the online exam, and that a patient is not allowed to get contacts for the first time during an online exam.

Gooch told the committee that his bill doesn't keep technology out of Kentucky, but does set reasonable standards that ensure patient safety, and also "supports our local eye-care providers." Independent optometrists are one of the most powerful lobbies of the legislature.

Dr. Ben Gaddy, an optometrist and lobbyist for the Kentucky Optometric Association, told the committee that HB 191 simply establishes "safeguards on technology" for an online eye exam that the consumer takes on their own, with no interaction with a provider. "It does not limit where a consumer can purchase contact lenses or glasses -- it's the same as it is today. And it does not interfere with fair trade," he said.

Gaddy said 25 percent of diabetes cases, a real problem in Kentucky, are diagnosed during an in-person eye exam, and a "simultaneous interaction" with an eye-care provider during an online exam would be the only way diabetes and other health conditions could be caught. He added that his association is also concerned that individuals think they have had an eye health exam when they use these online services, when they haven't.

Much of the committee's debate was around that word "simultaneous," which means "at the same time," and the word "asynchronous," which means "not at the same time."

Sen. Ralph Alvarado, R-Winchester, argued that the bill is in direct conflict with his tele-health bill, SB 112, which passed the Senate Feb. 26. It says a requirement for a face-to-face encounter "is satisfied with the use of asynchronous telecommunications technologies" if the provider has access to the client's medical history prior to the encounter.

Alvarado, a physician, said the House bill includes safeguards needed to let eye-care providers participate in an asynchronous interaction, and said the word "simultaneous" must be removed not only because of this conflict, but because it limits technologies going forward and limits care to "a lot of people."

Gaddy replied, "Simultaneous doesn't always mean real-time-to-the-second interaction, but it means that there is more than just the issuance of a prescription."

Sen. David Givens, R-Greensburg, said it is legislators' responsibility to define what "simultaneous" means, or courts would, and they wouldn't be looking at the law's intent, but would "take a strict interpretation." But he voted for the bill.

Sen. Reggie Thomas
Sen. Reginald Thomas, D-Lexington, voted no, saying, "Simultaneous means simultaneous. Words do matter, and what this bill will do in effect is eliminate the ability of people to get glasses or contacts, when they've already gone to a physician and they've already gone to a followup exam,  from using those resources at a much cheaper rate without any risk of having their eyes damaged."

Sen. Julian Carroll, D-Frankfort, originally voted yes but changed his mind. "We are creating an enormous problem for our courts to decide this issue if we don't decide it legislatively," said Carroll, a former governor. "I feel a responsibility as a legislator to avoid a fight in the court over something that is so obvious. We passed one bill that provides for asynchronous and another that provides for synchronous, and that's irresponsible on us as legislators. Now we need to change one of them."

Sen. Danny Carroll, R-Paducah, also voted against the bill, as did Alvarado.

Earlier, Alvarado, referring to Gaddy's suggestion that a simultaneous visit is needed because a health or eye condition could otherwise be missed, called that "a silly example." He described a scenario where a tele-health patient calls in because they have a cough or a cold. "Could they have lung cancer?" he asked rhetorically. "They could," he said. " But we're not going to say you're not going to be able to have a telemedicine visit because we might miss a lung cancer, so you've got to come in and be checked."

Dr. Carl Baker, president of Kentucky Academy of Eye Physicians and Surgeons, spoke in opposition to the bill. He reminded the committee that it would affect more than just glasses and contact-lens prescriptions. He said it also affects how eye-care providers can assess and treat eye diseases.

Baker, a retina specialist practicing in Paducah, said the House bill would limit new technologies that allow for asynchronous, in-home assessments for diseases like diabetes, macular degeneration and glaucoma.

He said the bill would make it illegal for him to continue working for an insurance company that hires him to assess patients for "diabetic retinopathy" by looking at pictures of their retina that were taken by a technician in the patient's home. He said all his patients are given a recommendation to get an eye exam within the next 12 months, but those with a positive diagnosis for the disease are encouraged to see their provider immediately, and receive frequent follow-ups.

"We are enhancing the access to care," Baker said, "and I will tell you that the way this bill is written, that is not possible."

Baker said the bill would also affect specialists who do remote glaucoma screenings and the use of iPads to monitor macular degeneration remotely. "This technology would be illegal under this bill," he said.

Earlier, Gaddy said the bill differentiates between "doctor-directed tele-health" and "consumer-initiated telehealth," and said the procedures described by Baker were doctor-driven, and therefore not affected. "This bill only addresses consumer-driven technology," he said.

Peter Horkan, who represents Opternative, an online company where consumers get a renewed prescription for contacts or glasses, said current safeguards are working. He said 33 percent of people who sign up for the test aren't allowed to take it: “Thirty-three either hear from either an ophthalmologist or a representative of an ophthalmologist that they need to go and have a comprehensive eye exam.”

He said about 15 percent of their patients are "denied for deviation" because there is such a difference between their old and new prescription.

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