Legislation introduced into the Utah State Legislature earlier this month seeks to amend the state’s contact lens retail statute with measures that could directly impact both physicians and patients.
I need some background info first.
The legal front of eyecare across the country has been a hot topic of conversation— —remember that “Not a doctor” bill in Florida over the last few years.
Contact lens prescriptions is one of those areas, with recent legal challenges (specifically: violations) and legislation arising in just the last year.
Last February, the Federal Trade Commission (FTC) sent 24 cease-and-desist letters to eyecare practices across the country for failing to adhere to the federal Contact Lens Rule.
Read here for that coverage.
And in terms of legislation, a proposed federal bill supported by the American Optometric Associaion (AOA) called for a ban on online retailers’ use of automated robocalls to verify contact lens prescriptions (see here for details on that).
So talk about this new bill.
Originally introduced by Utah State Rep. Jordan Teuscher (R) 3 years ago, House Bill (H.B.) 189 seeks to require certain information to be communicated to a patient who is receiving a contact lens prescription.
And the details…
Highlights of the legislation include:
- Requiring an optometrist (OD) or a physician who is prescribing contact lenses to
- Provide “certain information” to the patient during a consultation
- Document “certain information” related to the patient interaction
- Provide a patient with a prescription for a specific brand or manufacturer (if medically appropriate)
- Prohibiting an OD or a physician who is prescribing a contact lens to a patient from selling a contact lens to that patient
Be a little more specific.
The bill amends Section 58-16a 306, starting at Subsection (1)(c) of the Laws of Utah, which would read as follows:
- 1. An OD or physician issuing a contact lens prescription shall:
- c. Inform the patient that the patient may have options among several contact lens brands or manufacturers
- d. Ask the patient if the patient has a preference for a particular brand or manufacturer;
- e. Document the information described in Subsection (1)(c) and (1)(d) in a clear statement on:
- (i) the document required by federal law acknowledging that the patient received the contact lens prescription; or
- (ii) the digital prescription if the optometrist or physician is providing a digital prescription
The amendment also adds two stipulations:
- 4. If the patient requests a brand or manufacturer that the prescribing OD or physician determines is medically appropriate for the patient, the prescribing OD or physician shall offer the patient a prescription that includes the brand or manufacturer that the patient requests.
- 5. If an OD or physician issues a contact lens prescription to a patient, the OD or physician may not sell the prescribed contact lens to the patient.
And its impact on ODs and physicians?
Essentially, H.B. 189’s amendments would directly require prescribing ODs/physicians to let their patients know if they may have other brand and manufacturer options available for their contact lens.
Further, these doctors would also need documentation of a specific patient’s preferences—all while also adhering to the Contact Lens Rule mandates for prescription release, according to the AOA.
In the words of the AOA: the bill would prevent specialty contact lens wearers from receiving their lenses within Utah ”if it’s passed as currently written" (as of January 5, 2024, to be exact).
What about for patients?
A recent analysis conducted by the National Economic Research Associates (NERA) Economic Consulting firm determined that the proposed amendments to legislation would result in a drastic reduction in options for Utah residents in need of contact lenses.
Further, there could be additional costs that may occur as a byproduct of looking for alternative lens sellers.
Give me some stats.
The analysis identified the following factors that would be impacted by these amendments:
- 38% of current contact len patients would need to find a new source for contact lenses
- 40% of contact lens patients purchase from their OD/physician (private practice) based on a personal relationship
- 18% of Utah residents do not participate in online shopping, posing a potential barrier for their contact lens ordering options
“State Rep. Jordan Teuscher has introduced amendments to Utah’s contact lens retail sales statutes that would shut down prescriber-owned prescription eyewear retail shops,” wrote Andrew Stivers, PhD, author of the analysis.
He added that the legislation could also harm competition by “removing a significant group of small, locally-owned businesses from competing in the marketplace” and, as a result, lead to “substantial loss of this retail chain” as both price and services could suffer.
Has the state optometric association weighed in on this yet?
Yes, they did.
The Utah Optometric Association (UOA) told Glance that the organization has been closely monitoring and actively working with Rep. Teuscher on the amendments to “help him understand the potential negative implications” it would have on both patients and prescribers.
I’m sensing a “but” here…
You sensed right.
The UOA added that, despite ongoing efforts, Rep. Teuscher—”a transactional attorney without medical training”—appears more determined than ever to regulate an entire industry by prohibiting prescribing doctors from selling contact lenses to their patients.
“This bill not only encroaches upon the doctor-patient relationship, but also significantly impacts patient choice in selecting where to purchase their contact lenses,” the organization said.
So what are the options for fighting this?
The NERA analysis suggested that Utah legislators and the ECP community could seek review at the federal level from the FTC, citing a 2020 statement from an FTC commissioner that addressed competition issues among contact lens prescriptions and “recommended additional review and regulation of this industry.”
The thought process: bringing such state issues to the FTC’s attention could potentially make it a national concern, “triggering regulatory action at the federal level.”
Gotcha. What’s the latest update on this legislation’s status?
Most recently, H.B. 189 was introduced into the Utah House Rules Committee on Jan. 16, 2024.
And when would it (potentially) take effect?
If the legislation gains approval, May 1, 2024.
*Disclaimer: The information provided in this article does not and is not intended to constitute legal advice; instead, all information, content, materials available herein are for general information purposes only.