BILL ANALYSIS                                                                                                                                                                                                    

                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 684          Hearing Date:    September  
          10, 2015
          |Author:   |Alejo and Bonilla                                     |
          |Version:  |September 4, 2015                                     |
          |Urgency:  |No                     |Fiscal:    |Yes              |
          |Consultant|Sarah Huchel                                          |
          |:         |                                                      |
           Subject:  State Board of Optometry:  optometrists:  nonresident  
               contact lens sellers:  registered dispensing opticians

          SUMMARY:  Authorizes the establishment of landlord-tenant relationships  
          between a registered dispensing optician (RDO), optometrist and  
          an optical company as specified; transfers the regulation of  
          RDOs from the Medical Board of California (MBC) to the  
          California State Board of Optometry (CBO); replaces an  
          optometrist with a RDO on the CBO; establishes a RDO advisory  
          committee; and establishes a three-year period for the  
          transition of direct employment of optometrists to leasing  

          Existing law:
          1)Declares that individuals, corporations, and firms engaged in  
            the business of filling prescriptions of physicians and  
            surgeons or optometrists for prescription lenses and kindred  
            products, and, as incidental to the filling of those  
            prescriptions, taking facial measurements, fitting and  
            adjusting those lenses and fitting and adjusting spectacle  
            frames, shall be known as dispensing opticians and shall not  
            engage in that business unless registered with the MBC.   
            (Business and Professions Code (BPC)  2550)

          2)Establishes the CBO within the Department of Consumer Affairs  
            (DCA) to license optometrists and regulate the practice of  


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            optometry.  (BPC  3000 et seq.)
          3)Prohibits optometrists and RDOs from having any membership,  
            proprietary interest, co-ownership, landlord-tenant  
            relationship or any profit-sharing agreement with each other.   
            (BPC  655)

          4)Prohibits optometrists from having any membership, proprietary  
            interest, co-ownership, landlord-tenant relationship or any  
            profit-sharing arrangement in any form, directly or  
            indirectly, either by stock ownership, interlocking directors,  
            trusteeship, mortgage, trust deed or otherwise with those who  
            manufacture, sell, or distribute lenses, frames, optical  
            supplies, optometric appliances or devices or kindred products  
            to physicians and surgeons, optometrists, or dispensing  
            opticians.  (BPC  655)

          5)Provides that it is unlawful for RDOs to:  

             a)   Advertise the furnishing of, or to furnish, the services  
               of a refractionist, an optometrist, or a physician and  

             b)   Directly or indirectly employ or maintain on or near the  
               premises used for optical dispensing, a refractionist, an  
               optometrist, a physician and surgeon, or a practitioner of  
               any other profession for the purpose of any examination or  
               treatment of the eyes; or,

             c)   Duplicate or change lenses without a prescription or  
               order from a licensed person.  (BPC  2556)

          6)Establishes the Knox-Keene Health Care Service Plan Act of  
            1975 (Knox-Keene) which establishes rules for mandatory basic  
            services, financial stability, availability and accessibility  
            of providers, and other standards for patient care.  
          (Health and Safety Code (HSC)  1340 et seq.)

          7)Declares Legislative intent and purpose to promote the  
            delivery and the quality of health and medical care to the  
            people of the State of California who participate in a health  
            care service plan by:

             a)   Ensuring the continued role of the professional as the  
               determiner of the patient's health needs which fosters the  


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               traditional relationship of trust and confidence between  
               the patient and the professional; 

             b)   Prosecuting malefactors who make fraudulent  
               solicitations or who use deceptive methods,  
               misrepresentations, or practices which are inimical to the  
               general purpose of enabling a rational choice for the  
               consumer public; and,  

             c)   Ensuring that subscribers and enrollees receive  
               available and accessible health and medical services  
               rendered in a manner providing continuity of care. 
             (HSC  1342)

          8)Defines "personal information" as any information that is  
            maintained by an agency that identifies or describes an  
            individual, including, but not limited to, his or her name,  
            social security number, physical description, home address,  
            home telephone number, education, financial matters, and  
            medical or employment history.  It includes statements made  
            by, or attributed to, the individual.  (Civil Code  1798.3).   

          This bill:

          1)Defines the following terms: 

             a)   "Health plan" means a health care service plan licensed  
               pursuant to the Knox-Keene;

             b)   "Optical company" means a person or entity that is  
               engaged in the manufacture, sale, or distribution to  
               physicians and surgeons, optometrists, health plans, or  
               dispensing opticians of lenses, frames, optical supplies,  
               or optometric appliances or devices or kindred products;

             c)   "Optometrist" means a licensed person or an optometric  
               corporation, as specified;

             d)   "Registered dispensing optician" means a person so  
               licensed; and,

             e)   "Therapeutic ophthalmic product" means lenses or other  
               products that provide direct treatment of eye disease or  


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               visual rehabilitation for diseased eyes.

          2)Prohibits an optometrist from having any membership,  
            proprietary interest, co-ownership, or any profit-sharing  
            arrangement, either by stock ownership, interlocking  
            directors, trusteeship, mortgage, or trust deed, with any RDO  
            or any optical company, except as specified.

          3)Permits a RDO or optical company to operate, own, or have an  
            ownership interest in a health plan so long as the health plan  
            does not directly employ optometrists to provide optometric  
            services directly to enrollees of the health plan, and permits  
            a RDO or optical company to provide, direct or indirectly,  
            products and services to the health plan or its contracted  
            providers, enrollees, or to other optometrists. 

          4)Permits, for purposes of this bill, an optometrist to be  
            employed by a health plan as a clinical director or to perform  
            services related to utilization management, quality assurance,  
            or other similar related services that do not require the  
            optometrist to directly provide health care services to  
            enrollees.  Prohibits an optometrist serving as a clinical  
            director from employing optometrists to provide health care  
            services to enrollees of the health plan. 

          5)Prohibits the RDO or optical company from interfering with the  
            professional judgment of the optometrist.

          6)Requires the Department of Managed Health Care (DMHC) to  
            forward consumer complaints to the CBO and requires DMHC and  
            CBO to enter into an Inter-Agency Agreement regarding  
            information sharing.  

          7)Permits an optometrist, a RDO, an optical company, or a health  
            plan to enter into a direct or indirect landlord-tenant  
            relationship with an optometrist under the following  

             a)   The practice shall be owned by the optometrist and in  
               every phase be under the optometrist's exclusive control,  

               i)     Selection and supervision of optometric staff;


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               ii)    Scheduling patients;

               iii)   Determining the amount of time the optometrist  
                 spends with patients;

               iv)    Fees charged for optometric products and services;

               v)     The examination procedures and treatment provided to  
                 patients; and,

               vi)    The optometrist's contracting with managed care  

             b)   The optometrist's records shall be the sole property of  
               the optometrist. Only the optometrist and those persons  
               with written authorization from the optometrist shall have  
               access to the patient records and the examination room,  
               except as otherwise provided by law;

             c)   The optometrist's leased space shall be definite and  
               distinct from space occupied by other occupants of the  
               premises, have a sign designating that the leased space is  
               occupied by an independent optometrist and be accessible to  
               the optometrist after hours or in the case of an emergency,  
               subject to the facility's general accessibility. This shall  
               not require a separate entrance to the optometrist's leased  

             d)   All signs and displays shall be separate and distinct  
               from that of the other occupants and shall have the  
               optometrist's name and the word "optometrist" prominently  
               displayed. This shall not prohibit the optometrist from  
               advertising the optometrist's practice location with  
               reference to other occupants or prohibit the optometrist or  
               RDO from advertising participation in any health plan's  
               network or the health plan's products in which the  
               optometrist or RDO participates;

             e)   There shall be no signs displayed on any part of the  
               premises or in any advertising indicating that the  
               optometrist is employed or controlled by the RDO, health  
               plan, or optical company;

             f)   Except as otherwise permitted by this bill, the RDO or  


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               optical company shall not link its advertising with the  
               optometrist's name, practice, or fees.  However, a health  
               plan may advertise its products and associated premium  
               costs and any copayments, coinsurance, deductibles, or  
               other forms of cost-sharing, and the names and locations of  
               the health plan's providers, including any optometrists or  
               RDOs that provide professional services, in compliance with  
               the Knox-Keene.  However, a health plan shall not advertise  
               the optometrist's fees for products and services that are  
               not included in the health plan's contract with the  

             g)   The optometrist shall not be precluded from collecting  
               fees for services that are not included in a health plan's  
               products and services, subject to any patient disclosure  
               requirements contained in the health plan's provider  
               agreement with the optometrist or that are not otherwise  
               prohibited by the Knox-Keene;

             h)   The term of the lease shall be no less than one year and  
               shall not require the optometrist to contract exclusively  
               with a health plan; 

             i)   The lease, rent terms, or payments shall not be based on  
               the number of eye exams performed, prescriptions written,  
               patient referrals, or the sale or promotion of the products  
               of a RDO or an optical company; and,

             j)   The landlord shall provide the optometrist with written  
               notice of the scheduled expiration date of a lease at least  
               60 days prior to the scheduled expiration date. The  
               landlord shall not interfere with an outgoing optometrist's  
               efforts to inform the optometrist's patients, in accordance  
               with customary practice and professional obligations, of  
               the relocation of the optometrist's practice.

          8)Permits the landlord to terminate the lease for the following  

             a)   The optometrist's failure to maintain a license to  
               practice optometry or the imposition of restrictions,  
               suspension, or revocation of the optometrist's license, or  
               if the optometrist or the optometrist's employee is or  
               becomes ineligible to participate in state or federal  


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               government-funded programs;

             b)   Termination of any underlying lease where the  
               optometrist has subleased space, or the optometrist's  
               failure to comply with the underlying lease provisions that  
               are made applicable to the optometrist;

             c)   If the health plan is the landlord, the termination of  
               the provider agreement between the health plan and the  
               optometrist, in accordance with the Knox-Keene; and,

             d)   Other reasons pursuant to the terms of the lease or  
               permitted under the Civil Code.

          9)Requires the landlord to act in good faith in terminating the  
            lease and prohibits the landlord from terminating the lease  
            for reasons that constitute interference with the practice of  

          10)Prohibits the landlord from terminating the lease solely  
            because of a report, complaint, or allegation filed by the  
            optometrist against the landlord, a RDO or a health plan, to  
            the CBO, the DMHC, or any other law enforcement or regulatory  

          11)Authorizes the CBO to inspect, upon request, an individual  
            lease agreement and requires the landlord or tenant, as  
            applicable, to promptly comply with the request. Failure or  
            refusal to comply with the request for a lease agreement  
            within 30 days of receiving the request constitutes  
            unprofessional conduct and is grounds for disciplinary action  
            by the appropriate regulatory agency. This bill permits only  
            the redaction of personal information on the lease agreements,  
            as specified by Civil Code.  

          12)Declares any financial information contained in the lease  
            submitted to a regulatory entity to be considered confidential  
            trade secret information and is exempt from disclosure under  
            the California Public Records Act.

          13)Permits a lease to include commercially reasonable terms  

             a)   Require the provision of optometric services at the  


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               leased space during certain days and hours;

             b)   Restrict the leased space from being used for the sale  
               or offer for sale of spectacles, frames, lenses, contact  
               lenses, or other ophthalmic products, except that the  
               optometrist shall be permitted to sell therapeutic  
               ophthalmic products if the RDO, health plan, or optical  
               company located on or adjacent to the optometrist's leased  
               space does not offer any substantially similar therapeutic  
               ophthalmic products for sale;

             c)   Require the optometrist to contract with a health plan  
               network, health plan, or health insurer; and,

             d)   Permit the landlord to directly or indirectly provide  
               furnishings and equipment in the leased space.

          14)Prohibits a RDO from having any membership, proprietary  
            interest, coownership, or profit sharing arrangement either by  
            stock ownership, interlocking directors, trusteeship,  
            mortgage, or trust deed, with an optometrist, except as  
            permitted under this bill.

          15)Clarifies that nothing in this bill shall prohibit a  
            physician and surgeon or his or her  professional corporation  
            from contracting with or employing optometrists,  
            ophthalmologists, or optometric assistants and entering into a  
            contract or landlord tenant relationship with a health plan,  
            optical company, or RDO, as specified.

          16)States that any violation of this bill constitutes a  

          17)Permits the CBO to promulgate regulations that impose  
            administrative fines, which may be assessed in addition to any  
            other applicable fines, citations, or administrative or  
            criminal actions.

          18)Transfers the regulation of RDOs from the MBC to the CBO. 

          19)Requires an RDO to display specified consumer information  
            related to the CBO. 

          20)Requires an optometrist who practices in a setting with a RDO  


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            to report the business relationship to the CBO, as determined  
            by the CBO. 

          21)Authorizes the CBO to inspect any premises at which the  
            business of a RDO is co-located with the practice of an  
            optometrist. Requires the CBO to provide a copy of its  
            inspection results, if applicable, to the DMHC.

          22)Prohibits any individual, corporation, or firm operating as a  
            RDO before January 1, 2016, or an employee of such an entity,  
            from being subject to any action for engaging in conduct  
            prohibited by specified current laws as they exist prior to  
            this bill's enactment until January 1, 2019, except that a RDO  
            shall be subject to discipline for duplicating or changing  
            lenses without a prescription or order.

          23)States that nothing in this bill shall be construed to imply  
            or suggest that an RDO is in violation of or in compliance  
            with the law.

          24)States that the exemption shall not apply to any business  
            relationships prohibited by current law commencing  
            registration or operations on or after January 1, 2016.

          25)Permits an individual, corporation, or firm operating as a  
            RDO engaging in a business relationship with an optometrist at  
            locations registered with the MBC before January 1, 2016 to  
            continue to do so until January 1, 2019. 

          26)States that the three-year safe harbor period does not apply  
            to any administrative action or litigation pending, cause for  
            discipline, or cause of action accruing prior to September 1,  

          27)Requires any health plan, as specified, to report to the CBO  
            in writing that:

             a)   15% of its locations no longer employ an optometrist by  
               January 1, 2017;

             b)   45% of its locations no longer employ an optometrist by  
               August 1, 2017; and,

             c)   100% of its locations no longer employ an optometrist by  


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               January 1, 2019. 

          28)Requires the CBO to provide health plans' compliance reports  
            to the director of the DCA and the Legislature. 

          29)Replaces one optometrist with an RDO on the CBO. 

          30)Permits the RDO member of the CBO to be a stockholder in,  
            owner of, or a member of the board of trustees of any school  
            of optometry, or financially interested, directly or  
            indirectly, in any concern manufacturing or dealing in optical  
            supplies at wholesale.

          31)Establishes a RDO committee to advise and make  
            recommendations to CBO regarding the regulation of a RDO.  The  
            committee shall consist of five members, two of whom shall be  
            RDOs, two of whom shall be public members, and one of whom  
            shall be a member of the CBO. Initial appointments to the  
            committee shall be made by the CBO. 

          32)States that the RDO committee shall be responsible for:

             a)   Recommending registration standards and criteria for the  
               registration of dispensing opticians;

             b)   Reviewing of the disciplinary guidelines relating to  

             c)   Recommending to the CBO changes or additions to  
               regulations; and,

             d)   Carrying out and implementing all responsibilities and  
               duties imposed upon it pursuant to this bill or as  
               delegated to it by the CBO.

          33)Requires the RDO committee to meet at least twice a year and  
            as needed.

          34)Requires recommendations by the RDO committee regarding scope  
            of practice or regulatory changes to be approved, modified, or  
            rejected by the CBO within 90 days of submission to the CBO.  
            If the CBO rejects or significantly modifies the intent or  
            scope of the recommendation, the RDO committee may request  
            that the CBO provide its reasons in writing, which shall be  


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            provided within 30 days.

          35)Requires the Governor to appoint the RDO and public members  
            to the RDO committee after the initial appointments by the  
            CBO.  The RDO committee shall submit a recommendation to the  
            CBO regarding which CBO member should be appointed to serve on  
            the RDO committee, and the CBO shall appoint the member to  
            serve. Committee members shall serve a term of four years  
            except for the initial staggered terms. A member may be  
            reappointed, but no person shall serve as a member of the  
            committee for more than two consecutive terms.

          36)Makes clarifying and technical amendments.

          EFFECT: This bill is keyed fiscal by Legislative Counsel.   
          According to the Senate Appropriations Committee analysis dated  
          August 27, 2015, this bill will result in unknown additional  
          costs for the CBO to assume licensing and enforcement  
          responsibilities for dispensing opticians from the MBC (State  
          Optometry Fund), offset by reduced costs to the MBC (Contingent  
          Fund of the Medical Board of California).  The bill will also  
          result in unknown additional enforcement costs for the CBO to  
          enforce licensing requirements on dispensing opticians and  
          optometrists that enter into lease agreements (State Optometry  

          1. Purpose.  According to the Author, "AB 684 is seeking a  
             legislative solution that allows multiple models to continue  
             to operate, while also leveling the playing field for both  
             large and small operators, ensuring that consumers' interests  
             are protected, and optometrists' clinical judgment is  
             preserved. This legislation would clarify and modernize the  
             law.  Without legislative action, these centers are under  
             threat of closure, which would cause significant job loss and  
             cut off care for the more than 2 million California patients  
                                             served by these centers every year."

          2. Background.  

              a)   RDOs and optometrists  .  This bill is a result of over a  
               decade of litigation debating the legitimacy of current law  


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               prohibiting certain business relationships between an  
               optometrist and a RDO. The final case, National Association  
               of Optometrists & Opticians v. Harris, confirmed the  
               constitutionality of California statutes.  
           The plaintiffs in the case, the National Association of  
          Optometrists and Opticians, LensCrafters, Inc., and Eye Care  
          Centers of America, Inc., argued that the laws restricting  
          business arrangements between opticians and optometrists violate  
          the dormant Commerce Clause of the United States Constitution.   
          The plaintiffs argued it was unfair that optometrists and  
          ophthalmologists may set up a practice where patients may  
          receive both eye examinations and prescription eyewear, but  
          opticians may offer only the sale of eyewear, not eye  
          examinations, and therefore are unable to offer the convenience  
          of "one-stop shopping" in California.  

          The Court upheld the California law as constitutional, stating  
          that the law was not discriminatory and did not place a  
          significant burden on interstate commerce "just because it  
          precludes a preferred, more profitable method of operating in a  
          retail market."  

          While the decision placed a final affirmation on existing law,  
          determining its impact on California's optical market was not  
          concluded.  The law did not anticipate the myriad leasing,  
          co-locating, and employment relationships that rose during its  
          debated legality.  

          This bill authorizes leasing arrangements between an  
          optometrist, RDO, and an optical company under specified terms,  
          and establishes a three year transition period for entities not  
          currently in compliance with the terms of this bill. 

              b)   Transition of RDOs from MBC to CBO  .  MBC began  
               regulating individuals selling eyewear and related products  
               in the 1930s.  While it seems incongruous for the MBC to  
               handle this population, the MBC has long been a catch-all  
               for various license and registration types.   
               Polysomnographic trainees, technicians, and technologists  
               are currently regulated by the MBC, as are midwives and  
               research psychoanalysts.  Prior to getting its own board,  
               the Physician Assistant Committee was also housed under the  


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           The MBC raised the possibility of transferring regulation of the  
          RDO program to the CBO in its 2013 Sunset Review report.  MBC  
          indicated that many complaints it received involve optometrists  
          and optometric assistants, in addition to RDOs, and moving the  
          program to CBO may lead to more efficient complaint resolution.   

          Stakeholder RDOs expressed concern over the combination of the  
          professions' regulation in this bill because RDOs and  
          optometrists may be in direct competition over the sale of  
          eyewear and related products.  However, this bill adds an RDO to  
          the CBO, giving voice and vote to the regulated population -  
          representation not available under the MBC -- and establishes an  
          advisory committee with a requirement that the CBO hear its  

          Further, there has been little realization of industry concerns  
          about domination in the combination of related professions into  
          a single board.  Of particular note are the following:

                     Cosmetology regulation was added to barbering,  
                 creating the Board of Barbering and Cosmetology;

                     The funeral home and cemetery industries are  
                 regulated by the Cemetery and Funeral Bureau;

                     Land surveyors, professional engineers, geologists,  
                 and geophysicists share regulation by the Board for  
                 Professional Engineers, Land Surveyors and Geologists.

                     The Speech-Language Pathology, Audiology and Hearing  
                 Aid Dispensers Board regulate those named individuals.

               This bill directs the transfer of all funds, duties,  
               powers, purposes, responsibilities, and records from the  
               MBC to the CBO to regulate RDOs.  

          1. Related Legislation.   AB 595  (Alejo) of 2015 would authorize  
             in law existing business models under which a RDO is located  
             next to an optometrist.   (  Status  :  This bill is pending in  
             the Assembly Business and Professions Committee.)
             AB 778  (Atkins) of 2011 would have authorized a registered  


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             dispensing optician, an optical company, a manufacturer or  
             distributor of optical goods, or a non-optometric corporation  
             to own a specialized health care service plan that provides  
             or arranges for the provision of vision care services.  
             (  Status  :  The bill was held in this Committee.)
          2. Arguments in Support.   National Vision, Inc.  and  FirstSight  
             Vision Services, Inc.  write, "[W]e are pleased to write in  
             support of Assembly Bill 684, which will protect vision care  
             access for working Californians by bringing clarity to  
             outdated laws governing how and where optometrists can  
             provide eye care services in the state.

             "Optometrists have been providing quality vision care to  
             patients next to  National Vision  optical locations for over  
             20 years. These optometrists are closely regulated by the  
             state, and patients value the convenience, accessibility and  
             flexibility of being able to receive comprehensive eye care  
             at a location where they do other shopping and where they can  
             receive services during the evenings and on weekends.   
             However, years of litigation relating to a 1960s law have  
             caused ambiguity about whether doctors can continue seeing  
             patients at vision care centers like ours.

             "  National Vision  and  FirstSight  have been part of a robust  
             stakeholder process that included our industry partners, the  
             Attorney General's office and the Governor's Office that has  
             resulted in the language that was amended into AB 684 on  
             September 4th, 2015.   AB 684 will now ensure that the more  
             than 2 million Californians who receive eye care at one of  
             California's more than 600 vision care centers continue to  
             have access to the high-quality care provided by the nearly  
             2,000 optometrists and support employees who work at these  

              The California Optometric Association  writes, "Recent  
             litigation prompted by issues of consumer safety created  
             uncertainty.  AB 684 solves that by allowing optometrists to  
             lease space from an optician, optical company or health plan  
             and includes sufficient protections to ensure the doctors who  
             work in these settings can practice independently.  Most  
             importantly, it consolidates enforcement under one regulatory  
             entity and authorizes new enforcement tools to ensure any  
             violation of the law will be penalized."


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              National Association of Optometrists and Opticians  writes,  
             "We believe that AB 684 will eliminate the ambiguity in  
             existing law, which governs the relationships between  
             optometrists and registered dispensing opticians, co-located  
             sellers of eyewear.  By including important protections and  
             prohibitions, we believe that this bill serves to protect  
             doctor's clinical judgment and provide greater transparency  
             for both patients and regulatory entities."

              Wal-Mart Stores, Inc.  ,  LensCrafters  , and  EYEXAM  also express  
             support for AB 684 and the opportunities for new business  
             forms it will provide. 

          3. Arguments in Opposition. The CBO writes, "We recognize that  
             AB 684 now contains more than just an enforcement moratorium.  
              However, the Board believes this late emerging solution both  
             creates some problematic issues and leaves some key policy  
             concerns unresolved, which cannot be addressed in the  
             remainder of the legislative session.  In order to put  
             consumer protection first, the Board opposes this bill.   
             While we acknowledge the substantial amount of effort that  
             interested parties put into the current version of AB 684,  
             the Board respectfully believes additional debate, meetings,  
             and discussions with the Board and the Legislature is  


          California Optometric Association
          FirstSight Vision Services, Inc.
          National Association of Optometrists and Opticians
          National Vision, Inc.
          Wal-Mart Stores, Inc.


          California State Board of Optometry


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