Prepared Witness Testimony

The House Committee on Energy and Commerce

Fairness to Contact Lens Consumers Act

Subcommittee on Commerce, Trade, and Consumer Protection
September 9, 2003
1:00 PM
2123 Rayburn House Office Building 

Ms. Ami Gadhia
Consumers Union
1666 Connecticut Avenue, NW
Suite 310
Washington, DC, 20009

Consumers Union[1] supports H.R. 2221, the "Fairness to Contact Lens Consumers Act," because we believe that it will encourage vigorous and fair competition in the contact lens market, and that it will ultimately result in lower prices and better service for consumers.Consumers should be able to obtain their contact lens prescription from their eye doctor, so that they may shop around and buy contact lenses from the vendor of their choice in a marketplace that is allowed to be competitive.According to the American Optometric Association, thirty-two states have passed such laws.[2]

Two surveys conducted by Consumers Union's Southwest Regional Office in 1995 and 1997 indicated that in the majority of situations, consumers were unable to obtain their contact lens prescription from their eye doctor and that as a result, they were prohibited from purchasing contact lenses from lower-priced vendors.In 1997, the Texas Legislature passed the Contact Lens Prescription Act, to which H.R. 2221 is comparable.

An October 2000 follow-up survey and subsequent survey analysis in January 2001 show that consumers have benefited from the Texas Contact Lens Prescription Act.Eye doctors have accepted that they must release a prescription to a patient[3], consumers have acquired the power to shop around for lower-priced contact lens, and they have greater choice.In addition, eye doctors have responded to this more competitive marketplace by lowering prices and providing other services to patients.

The results of Consumers Union's survey in 2000 also demonstrated the possible cost savings for consumers because prices can vary dramatically.The cost of an eye exam ranged from $55 to $180.Prices for replacement boxes of contact lenses ranged from $18 to $42 for the same brand and type.Since buying lenses from the eye doctor may cost more, consumers benefit from immediate access to their prescriptions.

Although the follow-up survey also showed that some doctors were refusing to give patients their contact lens prescriptions by exploiting loopholes in the Texas law, the overall result of the law was that most eye doctors comply with the law by giving patients their contact lens prescription, and that consumers are reaping the benefits in the form of lower prices for contact lenses.

CONSUMERS UNION'S WORK IN TEXAS

In 1995, Consumers Union conducted a survey of optometrists and ophthalmologists ("eye doctors") in nine Texas cities[4] to determine whether consumers could get their prescription from their eye doctor and use it to purchase lenses from the dispenser of their choice.At that time, Consumers Union found that most eye doctors would not release the prescription to the patient, forcing consumers to purchase their lenses from the eye doctor who provided the exam.Consumes Union also determined from their 1995 survey that the price of such lenses varied considerably, and the practice of withholding the prescription limited the consumer's ability to shop for the best price.

In 1997, just before the introduction of the Contact Lens Prescription Act in the Texas State Legislature, Consumers Union again surveyed optometrists in the same nine Texas cities.Like the prior survey, this one was designed to recreate the actual experience of a consumer shopping for the best buy in contact lens care.From area phone books in nine cities, Consumers Union compiled a list of optometrists and eye care discount centers and made 71 contacts.[5]

Of the 71 inquiries to Texas Optometrists, only 24 responded that they would release a contact lens prescription to a patient.Forty-six practitioners, or 65 percent, refused to release the prescription to a patient.In addition to holding the prescription, some eye doctors also resisted competition by creating package deals that tied the consumer to them in the future.A typical package deal included the eye exam, a set of lenses, a follow-up visit, and a cleaning kit.

In addition, consumers were often unaware that their eye doctor would not release the contact lens prescription until after they purchased a package deal.They were therefore forced into returning to that eye doctor for their replacement contacts unless they wanted to pay for another exam.

Finally, the 1997 survey found that when a patient returned to the optometrist for replacement lenses, replacement costs varied widely.[6]A package deal that initially appeared to be a bargain may actually have cost consumers more in the long run.A patient could probably save money by paying for the eye exam only and having the prescription filled elsewhere.

THE TEXAS CONTACT LENS PRESCRIPTION LAW AND H.R. 2221

In 1997, the Texas Legislature passed the Contact Lens Prescription Act.This act requires eye doctors to give a patient their contact lens prescription upon request, at the time that the eye doctor "determines the parameters of the prescription."[7]The Texas law states that prescriptions expire after one year. Under the Texas law and the opinion of the state Optometry Board, eye doctors were also only required to give out a prescription once, so consumers who lost their prescriptions were left with no alternative but to purchase lenses from the prescribing doctor.

          H.R. 2221 is comparable to the Texas law in that it requires eye doctors to release prescriptions for contact lenses to consumers.The Texas law requires the patient to request the prescription, while H.R. 2221 improves on this provision by requiring the eye doctor to give the prescription to all patients.

H.R. 2221 is also similar to the Texas law in that it requires prescriptions to be for at least one year unless medically indicated to expire in a shorter time period.This ensures that eye doctors do not place arbitrary expiration dates on the prescription to force the patient to return to the office for replacement lenses.

Another issue that arises when comparing the Texas law and H.R. 2221 is that of active versus passive verification by an eye doctor to a third party of a consumer's prescription.The Texas law was silent on the issue of verification, and H.R. 2221 requires the Federal Trade Commission to study this issue.

Consumers Union believes that as long as a vendor has a reason to believe that the prescription is still valid, i.e., as long as there is evidence of some kind (such as a fax of the prescription), then passive filling should be appropriate.A reasonable period of time for verification might be two days, but this is a debate best worked out between the eye doctors and vendors.Our goal is to ensure that consumers with a valid prescription can get it filled by whomever they choose, and to ensure that the system accommodates that choice.

THE TEXAS LAW IN PRACTICE

In order to determine if eye doctors were complying with the new Texas statute, in October 2000 Consumers Union conducted a follow-up to its two prior surveys.Consumers Union reviewed 44 complaints with the Texas Optometry Board[8], and surveyed optometrists in the same nine cities as in the prior surveys.

A January 2001 analysis of the October 2000 follow-up survey shows that consumers have benefited from the Texas Contact Lens Prescription Act. Eye doctors have accepted that they must release a prescription to a patient[9], consumers have acquired the power to shop around for lower-priced contact lens, and they have greater choice.In addition, eye doctors have responded to this more competitive marketplace by lowering prices and providing other services to patients, such as conveniently mailing lenses directly to them (and as is done by third-party contact lens vendors) and selling lenses in 6-month bundles.

However, the survey also revealed certain areas of the Texas law that, when put into practice, show ways that the Texas law can be improved upon.For example, while eye doctors surveyed said they would now release prescriptions to patients, most required follow-up visits before releasing the prescription, even for long-time contact lens wearers with no medical problems.Fifty-seven percent of optometrists would not release a prescription unless patients came back for a follow-up visit, even if the patient had previously worn the same contact lenses.

The review of the complaints filed with the Texas Optometry Board provided anecdotal evidence of a number of other barriers to competition in the contact lens market.About one third of contact lens complaints to the Board reviewed by Consumers Union involved follow-up cases where doctors refused to release prescriptions because patients did not come back for a follow up exam.

Under H.R. 2221, an eye doctor conditioning the release of a patient's prescription on a paid follow-up visit would be violating Section 2(b)(2) of the legislation.But even if the eye doctor were conditioning release of the prescription on a free follow-up visit, he or she would at the very least be violating the spirit of the legislation.While Texas legislation in 2001 failed to correct this problem, the Board of Optometry issued a rule later that year requiring that follow-up exams must be medically indicated and must occur within 30 days of the original fitting exam.

What is more, many patients who have worn contact lenses before do not need to return for a follow-up visit to finalize their prescription, and eye doctors have a clear financial interest in bringing consumers back into their store.A long-time contact lens wearer, and particularly a typical wearer of two-week disposable soft contact who likes his or her lenses, can probably be examined and "fitted" at a single visit for replacement lenses, according to the Contact Lens Clinic at the University of Washington.[10]

The 2000 Consumers Union survey also found evidence of eye doctors charging customers for a "service agreement" covering follow-up visits that tied the patient to that practitioner's office.Some eye doctors also refused to release the prescription if the patient's insurance company was late paying a claim.We see no reason why the consumer should be prevented from shopping around for the lowest price for contact lenses because of a dispute between the insurance company and the provider.

QUALITY OF CARE AND LIABILITY CONCERNS

The majority of optometrists surveyed by Consumers Union in 1997 cited two particular reasons for refusing to release prescriptions directly to all patients:to control the quality of care and to protect themselves from liability.Regarding the first concern, to ensure that a patient continues to receive quality eye care, most of those surveyed said that a contact lens is a "medical device" and therefore requires a professional's care.They say it is in the patient's own best interest that they do not release the prescription.

However, patients must still rely on an eye doctor for exams to renew their prescriptions, check their vision, and to respond to any problems they are experiencing.And, because contacts are worn directly on the eye, any discomfort will lead most patients back to their eye doctor for help.

In the case of replacement lenses, the primary protection of product quality rests with the manufacturer, since most eye doctors sell replacement lenses in pre-packaged containers, as do other dispensers.[11]Furthermore, regardless of the source, patients who get these pre-packaged lenses can and should always check the expiration date on the package.

Regarding liability, many of the offices contacted in Consumers Union's 1997 survey said that the practitioner would not release the contact lens prescription to the patient for dispensing elsewhere because the prescribing eye doctor would still be held liable if the prescription were filled incorrectly by a different vendor.However, assuming that an eye doctor provides a reasonable level of care, it seems that doctors would have little to worry about in terms of liability, especially for the actions of another (e.g., either the third-party vendor or the lens manufacturer) that result from the legal release of a prescription to the patient.

CONCLUSION

Contact lenses are a fact of daily life for millions of consumers.The increasing popularity of daily-wear, 2-week, and 30-day disposable lenses means that the number of consumers seeking the most affordable contact lenses will only grow.Consumers Union supports H.R. 2221 because it will give consumers the means to shop around to find contact lenses at the best price.

Concerns over the liability of eye doctors are perhaps misplaced, because the lenses that consumers receive from a doctor's office are in most cases shrink-wrapped and packaged in the same manner as those consumers would receiver from another vendor.The doctor-patient relationship is one based on care and trust, and doctors should not force a consumer to continue seeing them by holding the consumer's lens prescription hostage.Our experience with the Contact Lens Prescription Act in Texas indicates that the "Fairness to Contact Lens Consumers Act" will most likely result in lower prices and better service for consumers, and Consumers Union urges its passage.

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