Doctors of optometry challenge reasoning behind proposed Eyeglass Rule changes at FTC workshop

May 25, 2023
The recent workshop heard testimony from various stakeholders on the potential impact that proposed changes to the Eyeglass Rule might have on consumer choice and the burden on the practices of doctors of optometry and ophthalmology, which are already understaffed and saddled with other federal regulation. The Federal Trade Commission will use the feedback to determine whether to go forward with its recommendations.
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AOA and doctors of optometry challenged the Federal Trade Commission’s proposed changes to the Eyeglass Rule during a May 18 hearing, noting staffing shortages, the paperwork burden and an already empowered consumer.

The live hearing, “A Clear Look at the Eyeglass Rule: An FTC Workshop,” drew a virtual audience and a panel of providers eager to share their disparate viewpoints, including several AOA member doctors: Jeffrey Michaels, O.D., co-owner of a practice group in Virginia and chair of AOA Federal & Regulatory Policy Communications; Mahsa Masoudi, O.D., practitioner in the greater Atlanta area and a member of the AOA Education Center Committee; and Stephen Montaquila, O.D., president of a Rhode Island practice and member of the AOA Federal Relations Committee and immediate past chair of the AOA Third Party Center Executive Committee.

Perhaps, Dr. Montaquila told the hearing, regulators and doctors can learn from a similar change to the Contact Lens Rule. Changes to that mandate in 2020, opposed by the AOA and other medical groups and hundreds of U.S. senators and House members over the course of a nearly five-year policy battle, required contact lens prescribers to have patients sign an acknowledgement that a copy of their contact lens prescription was made available to them at the end of a contact lens fitting. The signed acknowledgement requirement is meant to assist the FTC in investigations if a patient reports not having been immediately provided a copy of their prescriptions at the end of a contact lens fitting. Automatic prescription release has been in effect for nearly two decades.

The change to the Eyeglass Rule would mirror the Contact Lens Rule patient acknowledgement requirement.

Dr. Montaquila led the workshop through the process of collecting signed confirmations under the Contact Lens Rule and how doctors comply with that regulation. The most flexible option is a signed acknowledgement form, but that form generates more paperwork after each fitting and needs to be securely stored for three years, he said.  The most preferred option might be electronic delivery of a prescription, but the FTC has mandated that the doctor receive verifiable affirmative consent form the patient to provide the prescription in this manner.

“Compliance is costly to the patient and the doctor,” he said. “While the FTC has offered options for compliance, all of them have challenges.”

The Eyeglass Rule

According to the current rule, 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 the rule requires doctors to obtain the signature of patients—on a form or notice of waiver—confirming they have received their prescriptions.

“As many of you probably know, the Eyeglass Rule has been in place since 1978, and since that time, the goal of the FTC in this space has been to promote competition in the eyeglass marketplace and to empower consumers to comparison shop for glasses by making sure they have a copy of their prescription in hand after their eye exam,” said Sam Levine, director of the FTC’s Bureau of Consumer Protection hoped that the workshop would be a dialogue between the agency, consumers, prescribers, opticians, eyeglass sellers and others.

“We're holding this workshop because we have been taking a close look at the Eyeglass Rule and how it's working in practice, and we've proposed a few updates to the rule with the goal of improving compliance and increasing clarity around the rule's requirements,” Levine said. “We will tease out some of the issues we've seen come up in the public comments, in consumer complaints, and in our discussions with prescribers when we've engaged in enforcement actions.

“We'll examine what effects the proposed rule changes might have in terms of promoting competition and increasing consumer choice, and whether there are burdens these changes might impose on prescribers.”

The AOA has opposed the most significant proposed change to the Eyeglass Rule.

Burdensome process

Complying with the proposed changes to the Eyeglass Rule would be a burden to the many small optometric practices, the doctors of optometry said.

“So, to review those steps, we must print the prescription from the EHR,” Dr. Montaquila said. “We must explain the process to the patient. We must re-explain why the patient needs to sign this form in the first place. We have to obtain their signature copy and or scan, name that document, store that document properly, deliver the prescription back to the patient and ensure that it's been properly stored from the doctor perspective, making sure our staff has done the job.

“Of course, this is all being done while the patient is checking out,” he added. “Our staff is explaining their insurance coverage. The patient is paying their examination co-payment. They're making follow-up appointments. Arrangements are being made for laboratory studies. Staff is coordinating referral to a specialist. A communication is being sent to the patient's primary care physician, the referring doctor, et cetera. So, what could possibly go wrong with that scenario?”

During their comments, Drs. Michaels and Montaquila noted that patients already have access to their prescriptions, allowing them to receive copies of them and purchase glasses at locations they choose.

Given the widespread use of EHRs in doctors’ offices, Dr. Michaels suggested that concerns that doctors are out of compliance with the regulation, as it is written now, might be overstating the extent of the problem.

“The vast majority of patients that are being seen today are being seen with electronic health records, and those prescriptions are being authorized the second that the prescription is signed,” Dr. Michaels said. “They have immediate access to it.”

Based on 2021 data, Dr. Montaquila said during his presentation, 88% of office-based physicians had transitioned to electronic health records (EHRs).

Dr. Montaquila disputed a suggestion by the FTC that walking patients through the Eyeglass Rule process would take as little as 1½ minutes to obtain a verifiable confirmation.

“I've done this assessment in my office,” he said. “It takes my very best staff about four minutes to complete this process, from explaining why we're doing it to the patient, providing them with their prescription, making the copies, providing their prescription back to them, and ultimately storing it.”

And that’s provided nothing disrupts the process. Doctors he knows are working hard to comply with the Eyeglass Rule.

“I have further assessed the cost to comply, and it's difficult to tease this number out from compliance in general, but I can tell you that right now we devote about 1.5 FTE to all of our compliance issues, and that's a cost of about $70,000 per year, not including any additional cost,” Dr. Montaquila said. “That's just salary. Adding more rules will only increase this cost to the practice and to the already stressed health care delivery system.

He later added, “There are a lot of pitfalls. There's a lot of ways that things could go wrong during the course of a day, as I described earlier. So, my request then, relates more to transparency in this discussion. Let's really truly convene a group of health care consumers, health care providers, and the FTC to find the best possible solution that puts the patient's needs first.”

The additional paperwork requirement might be particularly challenging if there is a language barrier, said Dr. Masoudi who formerly worked in the diverse setting of a community health center. If English isn’t that patient’s first language, and they don’t have an interpreter, the situation might be particularly trying for some patients and staff.

“Trying to explain to them, at the end, when all they know is they need to pull out their card for their co-payment to pay for something, and then try to sign a receipt and have the front-desk person who's not trained in every language try to communicate with them the importance of why they're required to sign this form,” Dr. Masoudi said.

“There's so many other steps to it because of language barriers, and then multiply whatever patient education time might be a pro for that, but then it goes right back to a burden because that time has to be doubled,” she added.

Prescription release

Panelists were asked by an FTC spokesperson about the reasons why doctors would find it challenging to comply with the Eyeglass Rule by automatically providing prescriptions to patients, as required by the rule.

The FTC has contended that a number of prescribers are not providing patients with their prescriptions, based on non-FTC surveys and recent warning letters sent by the agency—at one point questioning in the hearing whether the survey results were perhaps the “tip of the iceberg.” The AOA has disputed that noncompliance is widespread, arguing that the relatively “small” number of compliance warning letters sent out by the FTC compared to the thousands and thousands of doctors of optometry in the country did not support their suspicion.

“Now, the American Optometric Association, among others, has noted that the numbers are very small in relation to the overall number of prescribers in the United States, which is true,” an FTC spokesperson acknowledged, noting the 37 cease and desist letters sent recently by the agency. “That's certainly true.”

Dr. Michaels said providing patients access to their prescriptions is “so ingrained” with doctors of optometry and ophthalmology that the practice was “normal.”  And he questioned at what rate the FTC would be satisfied with compliance.

“…what is the number or the percentage that the FTC would view as successful?” he said. “If 99.9% of the prescriptions are automatically given out, is that successful enough for the FTC or do we go after the 0.001% because it wasn't at a 100%? Where does the FTC stand with the thought process?”

Dr. Michaels is concerned the FTC is using a survey sponsored by 1-800-Contacts from 2018 to evaluate prescription release patterns. Think about it, says Dr. Michaels, what doctor is providing prescriptions in 2023 the way they did in 2018? COVID changed everything we do and how patients want their prescriptions. Electronic access is critical and electronic access is immediate. 

Asked if patients misunderstand that they are entitled to their prescriptions, Michaels responded: “I can't speak for what the patients are understanding. What I do know is that overwhelmingly, more patients want electronic access to their prescriptions. And the ability to have it electronic, to be able to upload it into whatever vendor they want to purchase from, becomes a much more convenient opportunity for them. The vast majority of optometrists that I know are immediately giving access to that and protocols are in place to ensure that patients understand how to get onto their portal. The portals that are being created today are created by the electronic health record, and so we spend a lot of time in our office making sure that patients have access to their portal and (understand) how to get onto the electronic portals.”

What if a patient requires more than one prescription—maybe they are trying out various glasses with different prescriptions? Dr. Masoudi asked, “Sometimes they need three, if they have a hobby that entails something more specific” she said.

“So now are we getting an acknowledgement for each of the three different eyeglass prescriptions? And then each of those three have to be scanned?”

The FTC is seeking additional comments on the proposed rule through June 20. AOA will be fully engaged in that process.

Watch a recording of the workshop.

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