Contact Lens Rule Modernization Act introduced in the U.S. Senate

September 16, 2020
FTC rule set to take effect in October.
Contact Lens Rule Modernization Act introduced in the U.S. Senate

A bill introduced in the U.S. Senate on Sept. 17—backed by the AOA and the Health Care Alliance for Patient Safety—would eliminate contact lens prescription verification robocalls and would thwart Federal Trade Commission (FTC) plans to require prescribers to get signed acknowledgment forms indicating patients' receipt of their contact lens prescriptions.

Introduced by Sen. John Boozman, O.D., R-Ark., Sen. Roger Wicker, R-Miss., Sen. Rand Paul, R-Ky., and Sen. James Inhofe, R-Okla., the Contact Lens Rule Modernization Act (S. 4613) would replace the signed acknowledgment with a requirement to post “conspicuous” signage in practices notifying patients of their right to a copy of their contact lens prescription, as is current law in California. Further, significantly, the bill includes a provision outlawing the use of disruptive and unreliable prescription verification robocalls.

The paperwork and record-keeping mandate is due to go into effect Oct. 16. The AOA has vigorously fought the FTC rule changes.

“For nearly five-years, we’ve fought together against the Federal Trade Commission’s baseless and costly contact lens paperwork and record-retention mandate, which unfairly targets us, our patients, practices, staff, and communities,” says AOA President William T. Reynolds, O.D.

“With Congress set to adjourn in early October until after the November elections, it is vital that every doctor, student, office staffer, and patient contact their U.S. Senators today with a special priority request to co-sponsor the Contact Lens Rule Modernization Act and take action right now to stop this unnecessary and costly new mandate and instead support patients, doctors and small health care practices at this crucial time.”

“The FTC may have had good intentions when it wrote this rule, but the bottom line is it puts patient safety at risk and creates undue burdens on small health practices. It simply misses the mark,” Sen. Boozman says. “The Contact Lens Rule Modernization Act will address the shortfalls in the FTC rule. It alleviates patient safety concerns by banning automated prescription verification calls and removes unnecessary requirements the rule placed on providers who are already facing new challenges as a result of COVID-19.”

Optometry, and health care leaders, continue the fight

The AOA has long decried the flawed administrative paperwork 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 has rallied pushback among members, as well as other health care organizations and industry allies.

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 rules. Without action, the new changes may go into effect in October.

In its fight, the AOA has been 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: "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."

It also 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 occurs later.

The AOA has been joined in its effort to overturn the new rules by CooperVision, which called the decision imprudent and of serious concern, VSP Global, the Health Care Alliance for Patient Safety, the Contact Lens Institute and other industry groups seeking to preserve the importance of the doctor-patient relationship.

The AOA also found sympathetic support from members of Congress who signed on to letters sent to majority and minority leaders in the Senate and the House, urging an intervention against the amendment.

"We are concerned that the FTC is imposing these new requirements on doctors' offices across the country just as they are working hard to get back on their feet," says a letter signed by Sen. Roger Wicker, R-Miss., and 16 other senators. "These small health practices are increasingly struggling to afford personal protective equipment for themselves, their employees and patients, and are still recouping from retrofitting costs and revenue losses stemming from reduced patient flow.

"Complying with this additional burden at the present time could seriously undermine their recovery efforts," the letter adds.

“Congress has repeatedly expressed concerns over the use of prescription verification robocalls, which too often result in patients receiving different lenses than what was fitted and prescribed by their eye doctor,” said a letter led by Reps. Bobby Rush, D-Ill., and Michael Burgess, M.D., R-Texas, and signed by 92 other U.S. House members. “With the variety of other prescription verification options available, restricting the use of these robocalls is a simple fix that would better protect the tens of millions of patients and contact lens consumers who are now at risk.

“With the FTC failing to address these ongoing concerns, it is clear that Congress must act to better protect patients from the Commission’s flawed approach. Therefore, it is our hope that the House will address this important issue in upcoming virus relief or end-of-year legislation,” the letter urged.

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."

How to take action

What can doctors of optometry do?

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