AOA finds allies in fight against new FTC contact lens prescription paperwork mandate

Opposition is gathering against a new Contact Lens Rule announced by the Federal Trade Commission that requires prescribers to get signed acknowledgement forms indicating patients' receipt of contact lens prescriptions, and to keep record of that confirmation for at least three years.

Not only did the U.S. House appropriations subcommittee with jurisdiction over its budget formally rebuke the agency Tuesday, July 14, but a growing chorus of leading industry voices also have been weighing in with protests. In recent days, CooperVision, VSP Global and the Health Care Alliance for Patient Safety have sent strong messages on the burdensome and misguided rule directly to FTC officials. Since 2016, the FTC has ignored the concerns of the AOA and doctors of optometry, ophthalmologists, patient health and consumer advocates and a bipartisan group of more than 100 U.S. House and Senate leaders. Indifferent to those pleas, the FTC announced June 23 it was pushing ahead with the new rule.

AOA President William T. Reynolds, O.D., called on members to ramp up the pressure on the agency by calling on their congresspeople and expressing their displeasure with the new paperwork and record retention rule.

"The FTC was wrong four years ago when it first proposed this flawed plan and it's wrong today in seeking to implement it," Dr. Reynolds says. "This is an attack on law-abiding, frontline optometry practices made even more outrageous by the fact that the FTC has chosen this moment—amid a pandemic and economic meltdown—to finalize new rules that will needlessly saddle thousands of already struggling, small health care practices with tens of millions of dollars in new compliance costs.

"The AOA is mobilizing to ensure that all of our doctors can speak out, educate and engage government officials in challenging this mandate," he says.

The AOA has asked the FTC to defer the rule's enforcement until at least Jan. 1, 2021. 

Without action, the new changes may go into effect in September. The House subcommittee is demanding an even later effective date.

House subcommittee admonishes FTC

In its report accompanying the fiscal year 2021 spending bill, the House Financial Services and General Government Subcommittee inserted language admonishing the FTC and directing the commission to delay implementation of its rule changes, especially given the ongoing strain due to the public health emergency brought on by the coronavirus pandemic.

In its report, the subcommittee wrote:

"The Committee is disappointed that the FTC's final amendments to the Contact Lens Rule do not sufficiently address the patient safety concerns the Committee has repeatedly outlined in report language for the past four years. The rule fails to sufficiently modernize the prescription verification process by eliminating the use of robocalls and imposes new burdensome paperwork requirements on providers and patients. To allow providers sufficient time to implement the necessary changes and to prevent additional interruptions in service due to the coronavirus, the Committee directs the FTC to delay the effective date for the amendments, and to suspend any implementation or enforcement of those amendments, until March 31, 2021."

The language was included by Rep. Mike Quigley, D, Ill., the subcommittee's chair, after hearing from AOA Federal Keyperson Vince Brandys, O.D., who practices in Illinois.

While the language supports its position, the AOA continues to work with House and Senate leaders to oppose the rule change ahead of implementation.

Eye care industry voices join the challenge

The AOA has long decried the flawed administrative mandate, arguing that it places undue burden on prescribers while doing little to curb internet retailers' documented violations of the very patient health and safety laws that the regulatory rule review seeks to update. It is rallying pushback among members, as well as other health care organizations and industry allies.

On June 30, the AOA was joined by the American Academy of Ophthalmology in a hard-hitting letter to the agency reinforcing the share of concerns of all eye doctors across America—doctors of optometry and ophthalmologists—regarding the intent and timing of the final rule. The organizations noted in the letter that, "Many of these [optometry and ophthalmology] practices have just recently begun to reopen and are grappling with significant financial losses and staffing concerns while also implementing and refining new patient care procedures to limit the potential spread of the coronavirus. The timing for a new regulatory requirement for these practices could not have occurred at a more challenging time."

They called on the FTC to delay, at minimum, the rule's effective date to Jan. 1, 2021, or at least three months following the end of the current public health emergency as defined by the secretary of the Department of Health and Human Services, whichever date is later.

CooperVision called the decision imprudent and of serious concern and underscored its partnership with the Health Care Alliance for Patient Safety, the AOA, the Contact Lens Institute and other industry groups "to elevate the importance of the doctor-patient relationship with the agency. While that guidance went largely unheeded by the FTC, our resolve to protect quality care has only grown stronger."

In a separate letter July 9, VSP Global voiced its concerns to the FTC. VSP Global Chief Legal Officer and General Counsel Thomas Fessler writes the final rule falls short on two fronts (Link to letter attached):

• It fails to address the pitfalls associated with the practice of using computer-generated voice calls to verify contact lens prescriptions, commonly known as "robocall" verification.
• "... The final rule places pronounced burdens on eye doctors by requiring them to collect, maintain and store a myriad of signed paperwork that could easily be addressed through more modern and less intrusive means," says Fessler, while offering that VSP would be willing to work with the FTC on the issue.

Independent health economists estimate that the new mandate will cost the industry tens of millions annually, at least $18,000 per doctor, per year. The rule stands in contrast to the May 2020 federal directive aimed to specifically ease regulations that may inhibit economic recovery. Citing this concern, the AOA and state affiliates brought the issue to the highest level of government in a July 2 letter to President Trump, urging the administration to take action "to stop the FTC from enacting this dangerous rule change and harming thousands of essential small-business health care practices."

Call to action to doctors of optometry

Doctors, optometric professionals and students can act by voicing their concerns and helping maintain the momentum against this egregious proposal. Here's how:

• Call your U.S. senators and House member each week until the end of July to make sure optometry's message is heard. To do so, place separate calls with the U.S. Capitol switchboard at 202.224.3121, each time asking for either one of your two U.S. senators or one House member (U.S. House member lookup). You can use this script for the discussion and share any action reports or need for AOA advoacy at advocacy@aoa.org.
• Use the AOA's Legislative Action Center or text "FTC" to 855.465.5124 to send an urgent message to your legislators in support of pushing back against the FTC's overly burdensome contact lens rule changes. Please contact AOA advocacy at advocacy@aoa.org with any questions to discuss strategy or to report on the responses you're receiving from your senators and House members.
• Learn more about the Contact Lens Rule changes in the upcoming #AskAOA webinar, detailing the AOA's efforts on the rulemaking and to understand how doctors can further engage with their members of Congress on this important issue. Additionally, the AOA will share a "2020 Contact Lens Rule Compliance Toolkit" in advance of this webinar, that will include information about the rule, instructions on methods to comply and template materials.
• Consider investing in AOA-PAC, the only federal political action committee dedicated to fighting and winning for optometry.
• Help AOA work to build a stronger connection with elected officials as part of the AOA Keypersons Network.