1-800 Contacts ramps up legislative fights

May 25, 2016

Article

1-800 Contacts is ramping up its fight against organized optometry at the state and federal levels over legislation that would change important aspects of contact lens prescriptions and dispensing, such as longer expiration dates, elimination of contact lens brand on the Rx, and enacting a contact lens patient bill of rights.

1-800 Contacts began by taking aim at contact lens prescribers by backing bills around the country that would have blocked unilateral pricing policies (UPP) on contact lenses. The company is now working to extend contact lens prescriptions to up to five years and possibly prevent ODs from selling contact lenses.

American Optometric Association President Steve Loomis, OD, says he suspected that 1-800 Contacts attack on UPP was just the beginning and that the company and other online contact lens retailers had bigger plans in mind.

Going big in Arizona

As evidence of 1-800 Contacts’ bigger plans, Dr. Loomis points to Arizona’s HB 2523. While at least 14 states across the country have faced 1-800 Contacts-backed legislation, the company was particularly aggressive in Arizona.

Annette Hanian, OD, Arizona Optometric Association (AZOA) legislative chair, says that after the company tried-and failed-to stop UPP in Arizona in 2015, it came back with bigger demands. During the latest legislative session, Dr. Hanian says 1-800 Contacts worked on a number of bills, although HB 2523 was the only one that made it as far as a committee hearing.

“1-800 Contacts talked about everything from no brands and no prescription expiration dates at all-that was their ultimate goal,” she says.

She says that the company also originally wanted the bill to specify that optometrists could not sell the contact lenses they prescribed.

Over the course of the legislative session, Dr. Hanian says the bill was whittled down to a five-year Rx expiration date, then finally to a three-year expiration date. However, that three–year date had strings attached.

“The bill that was finally introduced was [an expiration of] three years, plus if a patient tried to refill within the last two months of the prescription-so two years and 10 months-then a contact lens dispenser could fill the prescription for the shelf life expiration date of the lenses,” she says. “So, if the dispenser had contact lenses that didn’t expire for another three years, the patient could order an additional three years.”

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1-800 Contacts general councel Cindy Williams, speaking exclusively with Optometry Times, says that the bill was about giving consumers a choice. While the optometric community argues that prescriptions longer than one year are dangerous to patients’ ocular health, Williams maintains that denying patients access to an affordable way to purchase their lenses is a bigger danger.

“If patients don’t have an affordable option, they tend to stretch their lenses beyond the recommended wearing schedule,” she says.

Both sides put up an intense fight.

Dr. Hanian says 1-800 Contacts brought in nine lobbying firms and a public relations company throughout the course of the session, and the aggressive approach was gaining the company support.

“1-800 Contacts held a press conference and called us ‘economic monsters,’” says Dr. Hanian. “The most egregious thing 1-800 Contacts did was-the day before our Senate government hearing-lob off more than 3,200 complaints against optometrists who had failed to release prescriptions to the state board. It was just a publicity stunt.”

(The Arizona Board of Optometry did not respond to Optometry Times’ request for comment on the number or nature of the complaints.)

Ultimately, the bill was defeated in the Commerce Committee with a 6-2 vote in February 2016.

Next: Could it happen in your state?

What happened in Arizona can happen in your state

Dr. Hanian speculates that 1-800 Contacts saw Arizona as an ideal environment with a conservative government that is often anti-regulation.

She says what happened in Arizona should open the eyes of ODs across the country to what 1-800 Contacts is trying to do legislatively. According to the AOA, 1-800 Contacts-backed bills sit in various stages in Oregon, New York, Rhode Island, Illinois, and Minnesota.

“What happened in Arizona was illustrative of a number of things-I think it revealed 1-800’s real agenda,” says Dr. Loomis. “In the hearings in Arizona, they really showed their hand. The discussion wasn’t about UPP-it was basically total deregulation.”

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Dr. Loomis says the increasing intensity with which 1-800 Contacts is working is a sign to him that the company is growing frustrated with its lack of legislative success in other states.

“Even in the areas where it’s been most aggressive, it has not been successful,” he says.

Next: Proposed federal contact lens regulations

Proposed federal contact lens regulations

At the federal level, a new bill would amend the Fairness to Contact Lens Consumers Act of 2004 (FCLCA) to require contact lens retailers to provide a toll-free telephone number and email address that prescribers can use to ask questions about a seller’s prescription verification request.

S.B. 2777 is sponsored by Sen. Bill Cassidy, MD (R-LA).

“It’s a bill that brings common-sense practices to this business of prescribing contact lenses,” says Dr. Loomis. “S.B. 2777 provides for more communication between the seller and the prescriber of the contact lens.”

Under FCLCA, a prescription is considered verified if the prescriber fails to communicate with the retailer within eight business hours after receiving the seller-provided verification information. This passive verification practice is one of the biggest complaints from optometrists.

While Optometry Times Editorial Advisory Board member Crystal Brimer, OD, FAAO, says she’s seen a decrease in the number of her patients who choose to buy lenses online, she is familiar with the flaws in the verification process.

“We used to get faxes after hours and on weekends asking for prescription verification-mainly expired prescriptions-knowing we couldn't respond in time, and [retailers] would be allowed to fill the prescription based on patients’ existing boxes,” she says. “I think that’s the biggest danger: it seems that my patients who resorted to online sales did so because their prescriptions had expired, and they didn’t think they needed another exam.”

When a prescriber has questions about the accuracy or verification of the Rx, S.B. 2777 requires that the prescription be considered unverified until the seller obtains affirmative confirmation of its accuracy from the prescriber. The prescriber must call or email questions before the end of that eight-hour period. The bill also removes the Federal Trade Commission’s (FTC) authority to adjust the eight-hour period.

According to the bill, if a prescriber asks a question before the deadline, the seller shall not fill the prescription, and the prescriber shall provide the seller with an accurate prescription.

The bill would alleviate some of the problems Optometry Times Editorial Advisory Board member David Geffen, OD, FAAO, has experienced, just like many of his fellow ODs.

“We have received verification requests on Friday evenings and are asked to respond within a short time frame,” he says. “We are not open Saturday and have found that patients may have requested contact lenses which we did not prescribe. By the time we respond on Monday, the order has shipped out.”

1-800 Contacts strongly opposes S.B. 2777 and formed a coalition to fight it.

In April 2016, 1-800 Contacts formed a coalition with Costco Wholesale and Lens.com, calling themselves the Coalition for Contact Lens Consumer Choice.

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In a statement, the companies say the coalition will work to:

• Protect contact lens consumers by educating the public about the benefits of the FCLCA

• Advocate for a competitive contact lens marketplace that gives consumers more choice, greater convenience, and lower prices

• Oppose efforts by the AOA to gut the FCLCA in order to increase its own profits at the expense of consumers

The coalition started a petition in April 2016 at keepcontactlenschoice.org, urging Congress to reject any legislation that would restrict where patients could buy their contact lenses. 1-800 Contacts told Optometry Times that to date, more than 71,000 people have signed that petition.

Next: Updating the Contact Lens Rule

Updating the Contact Lens Rule

The FTC is planning to update its Contact Lens Rule, which requires contact lens prescribers to provide patients with a copy of their contact lens prescription after fitting is complete and prohibits sellers from providing contact lenses without a verified contact lens Rx.

Both 1-800 Contacts and the AOA have submitted comments to the FTC about the proposed update.

1-800 Contacts would like eyecare providers to require to patients to sign what the company is referring to as a “patient bill of rights,” informing patients they have the right to their prescription and to purchase contact lenses anywhere they wish.

According to Williams, enforcing the Contact Lens Rule is difficult. She says that the patient bill of rights would ensure that ODs are following the FCLCA and would be able to provide proof of such in case of a reported violation.

“Our main goal at the federal level is to be an advocate for the 41 million Americans who use contact lenses in an industry that is fraught with anti-competitive behavior,” Williams says.

In its comments on the Contact Lens Rule submitted in October 2015, the AOA asked the FTC to:

• Fix the broken passive verification system

• Ensure retailers can’t sell contact lenses based on an expired prescription

• Stop “robocalls” that the AOA says are often are difficult to understand or are incomplete

• Shut down online retailers that allow patients to purchase contact lenses without a prescription

• Ensure consumers are well informed about patient agency (retailers acting on behalf of the patient to contact the prescriber for the Rx), and prevent practices to assert patient agency that it calls deceptive

• Stop retailers from encouraging patients to stockpile contact lenses that far exceed the prescription length

• Stop retailers’ business practices that misguide patients on the requirements of the Rule

• Shut down retailers that do not follow the requirements of the Rule and target patients through social media and e-commerce sites

• Ensure retailers provide a reliably accessible live-contact person for doctors to discuss prescription problems, as outlined in the Rule

Dr. Loomis says the AOA is expecting the FTC to release its findings for comment this summer.

The AOA is part of the Coalition for Patient Vision Care Safety, which supports policies that promote patient health and safety. Also part of the Coalition are AdvaMed , Alcon, Bausch + Lomb, The Contact Lens Institute, CooperVision, and Johnson & Johnson. The Coalition supplied comments similar to those of the AOA to the FTC in support of amending the Contact Lens Rule.

“We strongly believe that the safe and appropriate use of contact lenses must be firmly grounded in a legislative and regulatory environment that prioritizes and recognizes the vital role of eye care providers in supporting patients’ health and safety,” says Peter Menziuso, president of North America at Johnson & Johnson Vision Care, Inc.

Next: 1-800 Contacts reports OD FCLCA violations

1-800 Contacts reports OD FCLCA violations

1-800 Contacts has notified the FTC of nearly 28,000 violations of the FCLCA by eyecare providers.

Among its chief complaints, the company says ODs often violate the FCLCA by not giving prescriptions to patients. 1-800 Contacts disagrees with ODs not releasing prescriptions to online retailers.

By not releasing the Rx-whether inadvertently or on purpose-the company says ODs are breaking the law and increasing the possibility of the sale of an expired prescription. This, 1-800 Contacts says, violates the trust of patients who believe their OD is looking out for their best interests.

Williams says 1-800 Contacts identified those violations using its own recorded phone records over a four-month period. When a patient called the company to place an order but didn’t have her prescription on hand, the company offers to contact her eyecare provider, acting as the patient’s agent. If the patient agrees-and Williams says patients agree 90 percent of the time on phone orders-the company has the right to contact the eyecare provider to obtain the patient’s prescription.

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Williams says the company chose these orders to use to identify the violations because it wanted recorded proof that the patients understood what they were allowing the company to do.

The company faced problems in the past with the methods by which it asked patients for approval to act as their agent online after the eyecare community argued that patients were confused by the process. Williams says the company worked with the FTC to come up with a system in which the patient checks a box to opt in to having the company act as his agent-compared to the previous system in which the patient had to opt out.

The AOA agrees with consumer advocates who assert that the use of pre-selected boxes that force consumers to affirmatively opt out is deceptive and unfair to consumers and should be avoided.

Says Mike Stokes, AOA general counsel: “The AOA notified federal officials about this egregious overreach and violation of patient confidence, and we saw that 1-800 Contacts discontinued use of that particular form. The use of a pre-checked box on an order form for contact lenses is one more example of an industry that, we believe, at times downplays valid concerns about informed decision making and patient privacy in the interest of increasing sales and profits.”

While 1-800 Contacts is pointing fingers at optometrists, the FTC says online contact lens retailers have violated the FCLCA as well. In April 2016, the FTC issued warnings to 10 contact lens retailers and 45 prescribers for violating the law and reminding both that violations could include civil penalties up to $16,000 per violation. The FTC did not disclose which companies or eyecare providers received the letters.

View a sample of the FTC warning letter to retailers at http://1.usa.gov/1qETmjE and to prescribers at http://1.usa.gov/1TuFelb.

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