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America Deserves Contact Lens Consumer Rights

(Pete Sepp) – Hardly a day goes by in Washington without health policy at the top of the agenda – hearings are held, legislation is introduced, and rulemakings are issued on everything from prescription drugs to oversight of the Medicaid program. But one urgent health care-related issue affecting Mississippians deserves more attention: protecting contact lens consumer rights.

Our public policies should always promote competition and the free market. Vision care, however, has long suffered from anticompetitive behavior, raising prices and hampering innovation.  The Federal Trade Commission’s (FTC’s) Eyeglass Rule of 1978, which lifted state bans on eyeglass advertising and allowed consumers to shop around for prescriptions, is one of the best examples of evidence-based, pro-competition policies the agency ever issued.

Yet, unlike most other healthcare professionals who can’t sell what they prescribe, optometrists can issue prescriptions to patients and then sell them contact lenses. This is how optometrists earn up to 70 percent of their revenue, rather than providing eye care services.

This clear conflict of interest led Congress in 2003 to pass the Fairness to Contact Lens Consumers Act, which requires optometrists to provide prescriptions to patients, without the patient having to ask. The requirement was intended to ensure consumers can buy their lenses wherever they want: at their optometrist’s office, another store, or an online contact lens retailer. The FTC implemented this law through its Contact Lens Rule.

But in the 16 years since the FCLCA was enacted, many optometrists have failed to comply.  A 2017 Consumer Action poll of 685 contact lens consumers found that close to one-third of respondents (31 percent) said they were not given a copy of their prescription after a contact lens exam and 60 percent of respondents were still unaware of the legal requirement that optometrists must automatically provide patients a copy of their prescription.

In response to reports that the spirit and letter of the laws were not being followed, the FTC proposed an update to the Contact Lens Rule. Three years in the making, the FTC’s carefully-considered plan would require optometrists to obtain signed acknowledgments after giving consumers their prescriptions and to keep those acknowledgments on hand for three years. This simple step would help correct lax implementation of FCLCA, guaranteeing the full benefits of a competitive, well-functioning marketplace.

But taxpayer groups have a stake in ensuring this update is enacted too, as several of the authors of this article noted in an extensive Issue Analysis sent to FTC Commissioners late last year.  Providing more choices and lower costs will ultimately ease the future financial pressure on taxpayer-backed health programs. For example, as states continue to experiment with their Medicaid programs under federal waivers, vision benefits may increasingly become part of the picture. In addition, because restrictions on consumer choice for contact lenses ultimately raise costs, continued noncompliance with FCLCA also puts pressure on insurance programs for federal, state, and local employees, whose premiums are partly funded by taxpayers.

We have dedicated decades to fighting onerous regulations, including the FTC’s. It’s important that any new government regulation not impose undue administrative costs. We believe the FTC’s updated Contact Lens Rule was carefully calibrated to meet that standard. The FTC itself estimated that complying with the new rule would cost providers only about one minute per patient – actually less than the time providers must currently spend on the phone verifying prescriptions with suppliers because they haven’t given them to patients in the first place.

Unfortunately, the American Optometric Association along with a handful of allies has mounted an aggressive lobbying campaign to block the FTC from finalizing the update to the Contact Lens Rule. These same interests are now leaning on Congress to squash the update, should the FTC move forward. If successful, their tactics could stop or even reverse the gains that consumers and taxpayers have enjoyed from the Contact Lens Rule, with no demonstrable health benefit.

Optometrists do face unnecessary government burdens on their businesses, such as onerous Medicare provider rules or poorly-designed licensure requirements. Policymakers should address these problems instead of impeding progress in the contact lens market.

We hope Mississippi’s Congressional leaders will reject this 11th hour maneuver to undermine improvements to a federal rule that has worked well — and can keep working well. Forty million-plus contact lens wearers are counting on common sense from our nation’s leaders.

Mr. Sepp is president of the National Taxpayers Union

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