Biden to Optometrists: You’d Be Wise to Open Your Eyes to Competition

(Chuck Muth) – On July 9, the Biden administration announced an “Executive Order on Promoting Competition in the American Economy.”  The new policy order opens as follows…

“A fair, open, and competitive marketplace has long been a cornerstone of the American economy, while excessive market concentration threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers.  The American promise of a broad and sustained prosperity depends on an open and competitive economy.”

The president went on to note, correctly, that for consumers, competition “means more choices, better service, and lower prices.”

Now, I’m no Biden fan – and wish he’d apply the same mindset when it comes to our public schools – but there’s some good stuff in his order as it relates to competition in the contact lens market, as noted specifically in the order…

“Consistent with these broader policies, and in addition to the traditional antitrust laws, the Congress has also enacted industry-specific fair competition and anti-monopolization laws that often provide additional protections.  Such enactments include…the Fairness to Contact Lens Consumers Act.”

You see, for decades optometrists had a virtual monopoly over where you could purchase your eyewear.  They were the only medical professionals who could both issue AND fill prescriptions.   They effectively had a captive audience.  “Competition” was a four-letter word.

Then that darned Al Gore went ahead and invented the Internet and upset the whole apple cart!

Turns out consumers had an appetite for conveniently ordering their glasses and contact lens prescription refills online from the comfort of their own homes and offices – usually saving a pretty penny in the process.  Go figure.

Seeing the profits from their gravy train draining from their bottom lines, many less-than-scrupulous eye docs refused to issue prescriptions that weren’t filled in their shiny showrooms, or slow-walked providing them to impose maximum inconvenience on their new competitors.

Enter the Fairness to Contact Lens Consumers Act of 2003.

With this legislation, optometrists were now REQUIRED to provide a copy of the patient’s prescription that could be used at the retail outlet of the patient’s choice – either the doc’s showroom, discount retailers, big box stores, or online.

Nevertheless, too many bad apples continued to spoil the barrel.  So last year the Federal Trade Commission (FTC) issued a set of new rules to bring renegade eye docs into compliance.  From the new FTC order…

All prescribers must:

• • give a copy of the contact lens prescription to the patient at the end of the contact lens fitting – even if the patient doesn’t ask for it. You may provide the prescription digitally if the patient agrees to get it digitally instead of on paper, and if the patient also agrees to the specific method (for example, e-mail, text, or portal), and if the electronic means can be accessed, downloaded, and printed by the patient. You also must keep records or proof that a patient agreed to digital delivery for at least three years.

In addition, if you are a prescriber who sells lenses or with a direct or indirect financial interest in the sale of contact lenses, you have to:

• • ask patients to sign a statement confirming they got their prescription. They’d confirm by signing an acknowledgment of receipt, a prescriber-retained copy of a contact lens prescription, or a prescriber-retained copy of the examination receipt. Keep those confirmations for at least three 3 years. If a patient refuses to sign the confirmation, note the refusal, sign it, and keep it.
  • if you provided a digital copy of the prescription, keep records or proof for at least three years that it was sent, received, or made accessible, downloadable and printable.
  • give the contact lens prescription to anyone who is designated to act on behalf of the patient, including contact lens sellers, within 40 business hours.

In any response to a verification request, you have to correct any inaccuracy in the prescription, inform the seller if it’s expired, and give the reason if it’s invalid.

You cannot require patients to:

• • buy contact lenses
  • pay additional fees or
  • sign a waiver or release in exchange for a copy of the contact lens prescription.

And yet the eye docs’ high-priced lobbyists, some members of Congress and even some anti-competition state legislators continue to fight – if not flout – these simple, common-sense, consumer-friendly rules.

Apparently, they can’t see how these new rules are perfectly consistent with the new Biden administration’s new Executive Order on Promoting Competition in the American Economy.

Maybe they just need a pair of reading glasses.

Mr. Muth is president of Citizen Outreach, a free-market 501(c)(4) grassroots advocacy organization, and a member of the Coalition for Contact Lens Consumer Choice