U.S. District Judge Wes Hendrix of the Northern District of Texas granted summary judgment in favor of VSP Vision and San Antonio-based Visionworks, holding that House Bill 1696 violates the First Amendment. He also entered a final judgment permanently enjoining the statute.
The eyecare communication bill, passed in 2023, aimed to prevent managed vision care companies like VSP from communicating directly with their customers or plan members about cost-savings programs if those efforts were viewed as steering clients toward specific in-network providers.
In August 2023, the Healthy Vision Association, National Association of Vision Care Plans and Vision Service Plan Insurance Company, among others, filed suit against Texas Insurance Commissioner Cassie Brown.
The U.S. Court of Appeals for the Fifth Circuit previously upheld the Northern District Court’s preliminary injunction and remanded to allow the state to explain clearly the law’s potentially legitimate sweep.
Judge Hendrix wrote that on remand, Texas ignored the Fifth Circuit ruling and asked the court to “apply a different legal standard entirely.”
He found little had changed on remand and that the court found the law didn’t serve a legitimate state interest.
He further wrote that the law failed the Central Hudson test, which is used to determine if government regulation of commercial speech violates the First Amendment.
“The First Amendment would be a parchment promise indeed if governments could merely pass a law rendering certain speech illegal and, once challenged, evade heightened scrutiny by appealing to the illegality of the restricted speech,” Hendrix wrote. “Happily, the law compels no such circularity.”
Errol King and Blake A. Bailey of Phelps Dunbar, Christopher Kratovil and Leigha Simonton of Dykema, John W. Petrelli of Morgan Lewis & Bockius, Aaron Street and Gavin Villareal of Baker Botts represented the plaintiffs.
Brianna Krominga with the Office of the Attorney General represented Cassie Brown.
The case is Healthy Vision Association, et al., v. Cassie Brown, 5:23-cv-167.