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March 1997
This article was written by the Consumers Union Southwest Regional Office.
Consumers Union supports HB 196 because it will encourage vigorous and fair competition in the contact lens market and ultimately lower prices and better service to consumers.
Unable to gain access to their contact lens prescriptions, consumers are forced to purchase their lenses from the prescribing doctor. The practice hampers competition and prevents consumers from shopping around for the highest quality product at the lowest price. |
Contact lenses are characterized as medical devices worn on the eyes. As such, consumers need a prescription to purchase them. Contact lens prescriptions may be written only by an ophthalmologist or an optometrist (collectively referred to herein as "eye doctors").
Ophthalmologists are medical doctors licensed to practice medicine and surgery, and specializing in all aspects of eye and vision care. Most focus on the treatment of eye disease and injury, but some ophthalmologists check eyes and sell eyeglasses and contact lenses.
Optometrists are doctors of optometry. Licensed to practice in select areas of eye and vision care, they examine eyes, diagnose eye disease, and prescribe eyeglasses and contact lenses. Usually if surgery or medication is needed, they will refer patients to other medical specialists. In Texas, optometrists may become certified as therapeutic optometrists which enables them to prescribe medication for the treatment of eye diseases. An optometrist must satisfactorily complete educational requirements established by the Texas Optometry Board (herein also referred to as the "Board") to be certified as a therapeutic optometrist.
Unlike optometrists and ophthalmologists, opticians are not doctors and therefore cannot write a prescription for corrective lenses or diagnose disease. They are technicians who fit, adjust, and sell contact lenses, glasses, and other eyewear prescribed by eye doctors. Only about half of all states require these eye technicians to be licensed. In Texas, opticians are not licensed or regulated. There is a voluntary registry for opticians which is overseen by the Texas Department of Health.
Being "fitted" for contact lenses is comparable to getting a prescription for pharmaceutical drugs from a medical doctor. The fitting process consists of an examination of the patient's eye to determine the correct size, curvature, and shape in order to prescribe the correct lens to "fit" the patient's eye and vision needs.
However, unlike other prescriptions, contact lens prescriptions are often held hostage by eye doctors, forcing patients to purchase their lenses directly from them. Current regulation of the optometric profession in Texas affords optometrists and ophthalmologists a luxury no other doctor can claim-a built-in guarantee of selling eye care products to every contact lens patient they examine.
Hiding behind arguments of liability, medical necessity, and the Board's restrictive interpretation of the Texas Optometry Act,1 eye doctors have effectively closed the contact lens market to competition by refusing to release fully written contact lens prescriptions to their patients. Unable to gain access to their contact lens prescriptions, consumers are forced to purchase their lenses from a particular doctor. The practice hampers competition and prevents consumers from shopping around for the highest quality product at the lowest price.
Eye doctors defend the practice of withholding prescriptions with the argument that their main concerns are quality of care and protection of patients' health--the same argument they made years ago about eyeglasses, until the law was changed to require release of eyeglass prescriptions.
American consumers are quite familiar and comfortable with the process of getting a prescription from a doctor filled elsewhere and returning to their doctor if a problem arises. It should make no difference in the quality of care a doctor renders, whether that prescription is for a drug to correct a heart condition or for eyeglasses or contact lenses to correct vision. Our health care system is based on a trusting relationship between providers and patients and that trust is what makes the patient return to a particular provider for further services.
House Bill 196, the current legislation, allows an eye doctor to withhold the prescription when a specific patient's health is at risk. However, an eye doctor would not be allowed to have a blanket policy of nonrelease for all patients.
Twenty-two states require some form of mandatory contact lens prescription release to the patient, either by statute or Board rule.2 Texas does not.
In 1989, when the Federal Trade Commission (FTC) clarified federal policy requiring release of eyeglass prescriptions, it made the following finding on the issue of contact lens prescription release: "While the record suggests that it is not uncommon for practitioners to refuse to give patients copies of their contact lens prescriptions, and that the resulting costs to consumers could be significant, we do not believe that the record contains sufficient reliable evidence to permit a conclusion that the practice is prevalent."3
We believe the two Consumers Union surveys demonstrate the practice is quite prevalent in Texas.
Our new survey was conducted in February and March 1997 by telephone in nine Texas cities: Austin, Corpus Christi, Dallas, El Paso, Houston, Laredo, Midland/Odessa, San Antonio, and Tyler. From area phone books, we compiled a list of optometrists and eye care discount centers in each city, totaling more than 70 contacts. In designing our survey, we attempted to recreate the actual experience of a consumer shopping for the best buy in contact lens care.
To do this we first inquired as to whether or not each office would fill a contact prescription which was over six months old without first examining our eyes. We asked what a contact lens eye exam would cost us if we wanted to be sure that our prescription had not changed. We then asked if the optometrist would give us our contact lens prescription. We also requested prices of replacement lenses.
To obtain consistent data, our questions focused solely on clear daily wear soft contact lenses because they are the most commonly used contacts. (See the box below for descriptions.) Soft lenses represent 89 percent of the total market nationally, and clear daily wear soft contact lenses comprise 61 percent of the soft contact lens market.4
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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. It is noteworthy that of those 46 optometrists who refused to release their prescriptions, 40 were willing to fill a prescription some other eye doctor had released to their patient. Only 9 percent of all the optometrists were unwilling to fill another eye doctor's prescriptions. (See Appendix I for survey summary and city by city responses.)
In addition to holding the prescription, some eye doctors resist competition by creating package deals that tie the consumer to them in the future. A package deal typically includes the exam, a set of lenses, a follow-up visit and a cleaning kit. A majority of our survey subjects offered package deals in their office, with 24 percent of those surveyed offering only package deals. The prices for these deals varied from $99 to $250. Eye exams alone, where offered, ranged in price from $30 to $160.
Within each city surveyed, we found significant price variations in all services, enough to make a real difference to most consumers. In San Antonio, the price range from the lowest to the highest eye exam was $15, while people in Laredo could save as much as $95 by going to another optometrist.
Defendants have conspired to avoid competition from their rivals and preserve their market advantages . . . by restraining consumer access to the prescriptions or work orders needed to obtain contact lenses and restricting or eliminating the supply of contact lenses to mail order companies . . . and other alternative channels of distribution. |
Often consumers are unaware that their eye doctors will not release the contact lens prescription until after they purchase a package deal and are, therefore, forced into returning to that eye doctor for their replacement contacts unless they want to pay for another exam. In response to this problem, when Consumers Union asked the Texas Optometry Board to change their rules to require optometrists to give their patients a fully written contact lens prescription at the completion of an eye exam, the Board suggested in their newsletter that licensees should notify patients of their prescription release policies before conducting an eye exam.5
Our survey found that when the patient returned to the optometrist for replacement lenses, replacement costs ranged widely--from $40 to $140 a pair. Despite the fact that most cities offer a similar range of prices, Texas consumers often spend much more than the least cost alternative simply because they are unable to shop a prescription around among competitors. A package deal that initially appeared to be a bargain may actually cost 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 price differential for replacement lenses was $21 in Austin and $80 in Dallas.
The majority of the optometrists surveyed 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 the patient continues to receive quality eye care, most 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.
But, patients still must 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.6 Furthermore, regardless of the source, patients who get these pre-packaged lenses can and should always check the expiration date on the package.
Concerns over "quality" have been used successfully in the past to scare consumers into sticking with products that were unnecessarily expensive and even exploitative. A doctor may tell a patient that Johnson & Johnson products are the only ones that a patient should use for "quality" reasons, when actually a cheaper brand would work just as well, if not better. Consumers can also be misled by different products of the same brand. In 1994, Bausch & Lomb, for example, sold the exact same soft lenses under three different names and with three different recommended wearing times. The prices for these lenses ranged from $60 to $260 a year. If these are the only brand options which the eye doctor is offering, the patient is locked in to buying that brand unless the eye doctor agrees to release the prescription.7
Since 1989, when questions over quality were first "officially" raised by the FTC, there have been no reports that the quality of patient care in states with mandatory release has suffered as a result of the releasing of a prescription after the initial fitting process is complete.8
Eye doctors also expressed concern about their liability. Many of the offices contacted in our 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.
State law does not establish liability without fault for optometrists. Article 1.03(a) of the Texas Optometry Act states, "provided that the physician, optometrist, or therapeutic optometrist who writes or issues the prescription shall remain professionally responsible to the patient."9 State law merely makes the eye doctor responsible for his or her own actions, as all health care practitioners should be. It does not create liability for the actions of others that result from the legal release of a prescription to the patient.
Contact lenses can be expensive, and they can be inconvenient to clean. Worn out or dirty lenses create discomfort and can even damage the eyes. Therefore, it is important for the consumer to know all of the facts before making the commitment to become a contact lens wearer. Based on our findings, this can be difficult.
At the same time, many adults have worn contacts for years, are comfortable with them, and need very little attention from their eye doctor. These consumers can save money by shopping their prescription to the lowest cost distributor, but to do this they must be able to get their prescription from the eye doctor. According to our survey, this too can be difficult.
Eye doctors have successfully blurred the distinction between treatment and prescription dispensation. In every other area of health care, the treatment provided by the health professional is not linked with filling prescriptions that are part of such treatment. Just as a patient's pharmacy choice does not interfere with the care given to them by their doctor, so their contact lens outlet choice will not interfere with their relationship with an eye doctor for initial or follow-up optometric services.
The issue here is ultimately one of consumer choice. Who owns the prescription, the doctor or the patient? Consumers Union believes the prescription belongs to the consumer who has purchased it from an eye doctor. Consumers should be able to buy their contacts from the vendor of their choice in a marketplace that is allowed to be competitive.
House Bill 196 will correct this problem by giving patients their contact lens prescription.
Efforts to halt consumer choice in eye care is not a health issue or a liability issue. It merely protects the profit margin of the current high-priced, provider-controlled system. Our research combined with our survey has provided us with sufficient evidence that non-release of contact lens prescriptions is a prevalent problem in Texas that results in higher costs and inconveniences for consumers.
1. Letter to Susan o'Connell of Arlington, Texas Optometry Board, August 31, 1992.
2. Summary of State Laws and Regulations, American Optometric Association, January 3, 1997.
3. Introductory Statement of Congressman Pete Stark in the House of Rep