AOA: No letting up on Eyeglass Rule advocacy

November 2, 2023
In a recent one-on-one conversation with Federal Trade Commission staff, the AOA again urges the agency to reconsider a proposal requiring patients to sign forms attesting that they have received copies of their eyeglass prescriptions. For small-business optometric practices, the requirement would be burdensome from a paperwork perspective and unnecessary given that consumers are more empowered than ever, the AOA says—again.
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The AOA is pressing its argument against proposed changes by the Federal Trade Commission (FTC) to the Eyeglass Rule that would impose burdensome demands on optometric practices, including a requirement that patients fill out forms verifying that their eye doctors have given them copies of their prescriptions after an eye examination.

Recently, AOA member and advocate Jeffrey Michaels, O.D., conversed with FTC officials and repeated concerns of doctors of optometry regarding the changes, known officially as the Ophthalmic Practice Rules. Prior to the Oct. 18 meeting, the AOA’s advocacy first began in 2015 when the commission initially indicated it was considering requiring doctors to include pupillary distance on eyeglass prescriptions and was evaluating whether it was necessary to create an eyeglass prescription verification system to mirror the Contact Lens Rule. The AOA was successful in pushing back on these new requirements. However, the FTC is still considering requiring doctors to document that eyeglass prescriptions were provided to patients. The AOA has raised concerns regarding the burden of that type of acknowledgement requirement through an extensive rebuttal letter in March and four AOA members testifying at an FTC workshop in May.

The AOA continues to actively engage the FTC regarding proposed rule changes.

“The AOA is actively working to protect the rights of doctors of optometry, so the FTC does not strong-arm its way into creating more burdens for our small businesses,” Dr. Michaels, co-owner of a practice in Virginia, says. “The AOA requested this recent meeting to underline our point of view—the burdens, the demonstrated lack of need. They all point to zero need for a signed acknowledgement.

“The AOA is working overtime to make sure our points are communicated on behalf of our members,” he adds.

Keeping the pressure on

Under the current  rule, originally passed in 1978, doctors of optometry and ophthalmology are required to “immediately” provide patients with a copy of their prescription after the completion of an eye examination. The rule prohibits doctors of optometry and ophthalmology from conditioning the availability of an examination on a requirement that patients agree to purchase any ophthalmic goods from the practice.

Further, under the rule, it is an “unfair act or practice” if a doctor of optometry or ophthalmologist fails to provide a patient with a copy of their prescription after an exam (so a patient can comparison shop). The FTC contends that at least some doctors are failing to provide patients with their prescriptions.

Dr. Michaels, who testified at the FTC workshop, argued on the recent video conference with the federal agency that:

  • Optometry offices are small businesses, and the prescription requirement would be burdensome at patient check-out. “On average, our offices are 10 times smaller than what the Small Business Association (SBA) considers small business,” he said.
  • No strong evidence exists that doctors aren’t providing patients with prescriptions, patients understand they are entitled to copies of their prescriptions and that they are free to purchase their glasses from their eye doctor or other seller. “Adding additional paperwork burdens to every single patient who walks into our office is unfounded,” he said. “There is zero indication that Americans are not aware of their rights to the eyeglass Rx nor is there any evidence that doctors are not releasing eyeglass prescriptions.”
  • FTC estimates that complying with the proposed policy would only take 10 seconds doesn’t add up. “A recent survey of AOA members who are complying with the Contact Lens Rule signed acknowledgment showed that 85% of doctors of optometry need at least 30 seconds to explain the rule, obtain the signature and secure (save) the acknowledgment for three years,” Dr. Michaels said. “Nearly one-third of optometrists indicate it takes at least 90 seconds. That means we would have our staff add 90 seconds to every patient—15, 20, 30 or 50 times per day for a rationale that is unfounded.”

AOA advancing optometry’s view

The FTC has maintained that the present prescriptions requirement is not followed by practices, and it is seeking to adopt a signed acknowledgement process. This specific change would match the heavily modified 2021 mandate under the Contact Lens Rule, opposed by the AOA and other medical groups and hundreds of U.S. Senators and House members over the course of a policy clash that lasted nearly five years.

Instead of the acknowledgement form, the AOA has recommended putting greater scrutiny on the sales of online retailers and mobile apps. Rather than focusing on the added paperwork, the AOA argues, the FTC should issue consumer guidance on buying prescription eyeglasses or contact lenses online. The AOA recommends the following advisory for consumers:

“The online retailer cannot guarantee that the eyeglasses you have purchased will meet your visual needs. The retailer will develop eyeglasses based on the prescription provided. However, errors can occur, and the company is not required to assess whether the eyeglasses have met your visual needs following purchase.”

“If your eyeglasses do not fit well upon receipt, the online retailer is not required to adjust your eyeglasses in person. You will typically be provided with instructions on how best to self-adjust your eyeglasses to address your concerns. Some recommendations may include bending the eyeglasses yourself or adjusting how you hold your head when using the glasses.”

“The online retailer is not obligated to respond to any complaints or issues surrounding your purchase.”

The AOA’s positions were substantiated by an analysis by Andrew Stivers, Ph.D., associate director in the antitrust practice of NERA Economic Consulting.

The standard for evaluating fairness to consumers under the Eyeglass Rule has changed, Stivers says. When the rule was adopted, he says, market conditions were far different. Consumers now have more choice and are far more informed.

“By contrast, today neither the regulatory nor the technological restrictions that predicated the determination of unfair practices still exists,” Stivers says. “The rise of new retail channels, and reductions in the market shares of the dominant retail channel relative to when that determination was made, provide further evidence that the conditions underlying a determination of unfair practices in retailing eyeglasses, and thus any benefits from increased regulatory requirements, cannot be presumed.

“Without such benefits, the rationale for technical compliance with the Eyeglass Rule’s specific conditions reduces a matter of administrative convenience and cannot be supported by an unfairness analysis,” he says. “That is, there is no relevant determination of unfairness associated with the proposed documentation requirements, and therefore no evidence or record that the documentation, or any effects on an underlying compliance issue, will have substantial benefits on consumers that would justify amending the Eyeglass Rule.”

Advocating for optometry and patient safety

The AOA advocacy is a force in Washington, D.C., ensuring that optometry is recognized and heeded on health care policy and other issues impacting practices, patients and public health. AOA doctors and students as well as its professional advocacy team are at the center of a 24/7/365 presence in the nation’s capital. Here are three ways to help ensure that illegal contact lens sellers are held accountable and adverse patient outcomes are reported:

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