New bill could require physicians to release contact lens Rx information

Issue: October 2001

WASHINGTON — Since 1973 eye care practitioners have been required to release spectacle prescriptions to patients or third-party spectacle makers acting on behalf of the patients. A new bill introduced to the U.S. House of Representatives by Rep. Pete Stark, D-Calif., in July would force optometrists and ophthalmologists to free up their contact lens prescriptions as well.

The bill (H.R. 2663) states that no later than 6 months after the date of enactment, the Federal Trade Commission (FTC) shall promulgate a rule on ophthalmic practice under section 553 of title 5, U.S. Code, to require optometrists and ophthalmologists upon completion of the contact lens fitting process for a patient to provide to the patient a copy of the prescription for contact lenses, regardless of whether the patient requests such a copy.

In addition, the optometrist or ophthalmologist upon request of the patient must provide a copy of such a prescription to the patient or an agent of the patient, or promptly verify to an agent of the patient, including by electronic means, the information contained in such a prescription.

More patients rights

The new law intends to put more control in the hands of the patients and foster competition and therefore lower prices among contact lens providers.

In an address before Congress to introduce this bill, Rep. Stark said, “this bill would enhance consumer fairness in the contact lens industry by requiring eye care professionals to release contact lens prescriptions after completing the fitting process.”

Rep. Stark explained that currently, consumers throughout the United States have unobstructed access to their eyeglass prescriptions. He pointed out that in 1973, the FTC issued a regulation requiring the automatic release of eyeglass prescriptions. Through this regulation, the FTC recognized that possession of both the prescription and the product constituted an unfair advantage for eye doctors and that consumers could safely manage their eyeglass prescriptions.

Rep. Stark said he thought it was natural at the time to preclude contact lenses from the regulation because they were a brand-new technology; however, now 34 million Americans wear contact lenses, and 85% of them choose soft contacts.

“In most states, prescribing eye care professionals can refuse to release contact lens prescriptions – even after patients complete the initial fitting process and even to long-time contact lens wearers who simply need their time-limited prescriptions renewed,” Rep. Stark said.

He said eye doctors cite health concerns, yet the reality is they have a strong financial incentive to restrict consumer access to the contact lens market. Without their contact lens prescription, consumers are often forced to purchase contact lenses from their prescribing eye doctor.

Rep. Stark quoted Lisa McGiffert of Consumers Union, who has endorsed the bill, stating, “Swift rulemaking action by the FTC will bring a new day to consumers whose eye doctors deny them the basic right that eyeglasses wearers have had for decades – the right to shop around and save money in a competitive marketplace.”

Rep. Stark also pointed to the recent lawsuit against the American Optometric Association and several contact lens manufacturers by the attorneys general of 32 states. He explained how the plaintiffs allege that the defendants conspired both to force consumers to buy replacement contact lenses from eye care professionals only and to eliminate competition from alternative distributors, including pharmacies, mail-order and Internet retailers.

“Contact lens wearers must be assured the same access to their prescriptions that eyeglass wearers currently enjoy. Yet the FTC has repeatedly failed to update its rule and extend prescription release requirements to contact lenses. This does not bode well for consumers. It means that in many states, people who wear contact lenses cannot shop around for the best value and quality products,” Rep. Stark said.

He even went so far as to explain the situation of his own wife in 1994.

“Despite her request, this doctor refused to release her prescription, but was more than happy to sell her contacts through his professional office. At the time, it struck me as fundamentally unfair that eye doctors stand to profit from holding their patients captive. It still does.”

Effects of the bill

The bill also states that any contact lens prescription will expire 2 years after the date it is issued, unless the prescriber specifies in the prescription for a patient a different expiration date based on the medical judgment of the prescriber with respect to the patient’s ocular health.

Violators of this rule will be treated as violators of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices.

Also, no later than 6 months after the date of enactment of this act, the FTC will create a rule to make it an unfair trade practice for any industry member to publish, or cause to be published, any advertisement or sales presentation relating to contact lenses that represents, directly or by implication, that contact lenses may be obtained without a valid prescription.

Currently 27 states have contact lens prescription release laws. This act and the regulations issued under this act will not affect any state law that authorizes the release of prescriptions for contact lenses only under terms that are not more restrictive than this section; regulates who is authorized to fit contact lenses; or regulates advertisements or sales presentations regarding contact lenses.

Response from eye care providers

The American Academy of Ophthalmology (AAO) sent a letter to Rep. Stark in June, supporting the law, but asked that he reconsider some points. The AAO noted that, although varied in content, many state laws require contact lens prescription release only upon request of the patient. Additionally, many states have determined that a prescription is valid only for 12 months or 18 months.

“Although the Academy supports governance of prescriptions by state law, we would not oppose your legislation if it is modified to state that prescription release is required only upon patient request, and if the examination has been paid for,” said William L. Rich III, MD, AAO secretary for federal affairs. “Contact lens prescription release contains risks for both the provider and the patient. The Academy supports a time period of 12 to 18 months for the prescription to be valid, unless the prescriber’s medical judgment indicates differently, but in no case to exceed 2 years.

“Many contact lens wearers are myopic and young,” Dr. Rich continued. “Myopia is usually progressive in young adults and therefore it is recommended that the prescription be valid only for a period of 12 to 18 months.”

Jeffrey G. Mays, deputy executive director of the American Optometric Association, said his organization believes as a matter of principle that this entire issue is a state matter and best addressed at that level.

“Notwithstanding those reservations, we are pleased to see that Mr. Stark’s bill recognizes the prescriber’s proper role as the sole determinant as to when the contact lens fitting process is complete, and an expiration date for the prescription based upon the medical judgment of the practitioner. At the same time, we have serious concerns about the lack of an enforcement mechanism to prevent the filling of expired prescriptions,” Mr. Mays said.

For Your Information:

Rep. Pete Stark can be reached at 239 Cannon House Office Building, House of Representatives, Washington, DC 20515; (202) 225-5065; fax: (202) 226-3805.

William L. Rich III, MD, can be reached at 1101 Vermont Ave., NW Suite 700, Washington, DC 20005-3570; (202) 737-6662; fax: (202) 737-7061.

Jeffrey G. Mays can be reached at 1505 Prince St. No. 300, Alexandria, VA 22314; (703) 739-2900; fax: (703) 739-9497; e-mail: jgmays@theaoa.org.