Texas State Capitol building at 1100 Congress Ave. in downtown Austin, Texas. Photo: Dennis Burnett/ALM
A federal appeals court is letting vision care plans move ahead with their suit against Texas officials over a state law meant to protect the state's optometrists from aggressive vision benefits management strategies.
A three-judge panel at the 5th U.S. Circuit Court of Appeals ruled Friday that the health plans can continue to sue Cassie Brown, the Texas insurance commissioner, over allegations that the state vision care law could limit their freedom of speech.
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The panel also kept a preliminary injunction against Brown enforcing the state vision care law in place.
But the court dismissed two of the defendants: Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton.
Representatives for the vision care plans and Texas officials were not immediately available to comment on the ruling.
Related: Why are optometrists squinting at vision care plans?
The Texas vision care law prohibits a managed care plan from identifying one optometrist differently from another optometrist based on factors such as the discount the optometrist offers or the optical goods suppliers the optometrist uses.
The law also prohibits plans from steering patients toward shops or web stores owned by the plans or to optometrists in special in-network provider tiers.
A district court in Texas ruled in favor of the vision care plans and let the plans keep moving forward with their suit. Texas officials filed an appeal with the 5th Circuit.
The 5th Circuit panel dismissed Abbott and Paxton as defendants because it believes "sovereign immunity" — a doctrine that makes suing public officials difficult — protects those officials against suits over the vision care law, according to an opinion explaining the ruling that was written by Circuit Judge Stephen Higginson.
But the panel believes that a federal court can keep a state official from "'taking future actions in furtherance of a state law that offends federal law or the federal Constitution,'" Higginson wrote, citing a 1908 case.
The panel let the vision care plans sue Brown, because the Texas insurance commissioner has a "specific and relevant duty" to enforce the vision care law and there is a "credible threat" that the commissioner could enforce the law, Higginson wrote.
The Texas law "applies to truthful and nonmisleading speech concerning lawful activity," forbids a plan from telling participants which providers offer what products and forbids a plan from telling participants which providers offer discounts, Higginson said.
"'The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good,'" Higginson added, quoting former U.S. Supreme Court Justice John Paul Stevens.
Higginson said another consideration is that he does believe that Texas officials have explained why they think the limitations on speech in the vision care law directly advance governmental interests.
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Allison Bell
Allison Bell, a senior reporter at ThinkAdvisor and BenefitsPRO, previously was an associate editor at National Underwriter Life & Health. She has a bachelor's degree in economics from Washington University in St. Louis and a master's degree in journalism from the Medill School of Journalism at Northwestern University. She can be reached through X at @Think_Allison.
