A little history…
Based on reluctance on the part of too many eye care practitioners to provide patients with a copy of their glasses prescriptions, the Federal Trade Commission (FTC) promulgated the Eyeglass Rule in 1978 – over 45 years ago. PCS provided a review of that law earlier this year (PracticeComplianceSolutions.com/FTC-eyeglass-rule).
Due to continued complaints from consumers, the FTC recently implemented updates to this law. These changes are currently in effect. FTC Commissioner Rebecca Kelly Slaughter clearly documents the FTC’s stance on this issue.
“The updated Rule will help ensure that consumers actually get their prescriptions and can shop around for what works best for them…It may be difficult to imagine that, not even fifty years ago, consumers were routinely forced to purchase expensive eyeglasses from their prescribers instead of being able to shop, as we can today, at a multitude of sellers and a huge variety of price points”
Despite minor ambiguity in the recent amendment and the usual vast amount of social media opinions related to the issue, we can make several definitive statements regarding provider obligations in following this law.
- The new amendments did not change any of the requirements in the original Rule. Refer here for a summary of the obligations that have been in effect for over four decades.
- The main change is that providers are now required to obtain signed confirmation from the patient that they did receive a copy of their glasses prescription. This new requirement closely mirrors the documentation requirements related to the contact lens prescription rules implemented in 2020.
- The requirement is fairly clear – “prescribers, after providing the prescription, request that their patients sign a statement confirming they received their prescription and keep a record of such confirmation for at least three years.”
- Presentation of proof of insurance coverage shall be deemed to be payment for the purpose of determining when the prescription must be provided.
- Changes the Rule wording of “eye examination” to “refractive eye examination” in some stated attempt to clarify that there is a difference between an “eye health examination” and a “refractive eye examination”. Duh…thanks FTC. This has prompted statements that you do not have to release the prescription if you are billing a medical service code / examination. The bottom line is if you conducted a refraction that resulted in a glasses prescription, whether in context with a routine or medical examination, the Rule and amendments apply.
Now, the apparent documentation dilemma. There is some confusion regarding when documentation regarding receipt of the prescription must happen and additional issues regarding the patient’s option to receive the prescription by digital means (email, text, online portal). Let’s clarify.
- The amendment states that the patient must receive a copy of the prescription at the completion of the examination, without request, and before making any attempt to sell the patient glasses. This is totally in line with the original Rule and has not changed anything.
- The amendment confirms that you may PROVIDE the prescription either in person or by digital means (email, text, online portal).
- If you manually provide the prescription to the patient at the end of the examination, you must obtain a signed document confirming delivery.
- If you suggest, AND THE PATIENT AGREES to digital delivery of the prescription, you still must obtain a signed document confirming the patient agreed to this method of prescription delivery.
Seems simple…but lots of questions out there so let’s do a little FAQ.
Do ALL providers have to comply with this Rule?
No…but yes. The Rule only applies to providers who have direct or indirect financial interest in the sale of eyeglasses. In reality, this would be rare as the FTC defined direct or indirect interest as “an association, affiliation, or are co-located with an eyeglass seller” and warns that providers should err on the side of caution in attempting to declare the Rule does not apply to their particular situation.
Doesn’t simply providing the prescription document compliance with the law?
No. You are already required to provide the prescription at the end of any examination that includes a refraction that resulted in a prescription. Documentation from the patient they received the prescription is a different issue.
If the patient agrees, when do I have to provide them with digital access to their prescription?
The Rule specifically states that digital delivery doesn’t change the timing of when you must give the patient their prescription. “If you are providing the prescription digitally, you must deliver the prescription immediately after the eye exam and before offering to sell the patient eyeglasses”. This has been somewhat problematic language. PCS believes this simply means that digital access to the prescription must be available immediately upon completion of the examination – immediately available to them in their patient portal or already on the way to them by text or email. Better get those records completed before you leave the exam room! Also, make sure any digital means of provision are HIPAA compliant (encrypted).
When do I have to obtain documentation the patient received their prescription?
The Rule states that signed documentation must be obtained at the completion of the examination and before you offer to sell the patient glasses. The Rule specifically states you may NOT have the patient sign pre-appointment paperwork confirming they WILL receive a copy of their prescription.
Does the pre-appointment exclusion also apply to the patient’s agreement to receive their prescription by digital means?
No. The Rule states that your pre-appointment forms CAN include authorization from the patient to receive prescriptions (eyeglasses and contact lenses) by digital means. (“Before the examination, you may ask for the patient to agree to get a digital copy of the prescription.”) The Rule states this authorization may be obtained in writing or electronically.
How long does the documentation statement apply?
You must keep a copy of the receipt document or the authorization to receive by digital means document for three years.
How long does the authorization to receive a prescription by digital means last?
There is no stated expiration for this documentation but the amendment does state that you must obtain a new signed authorization if the method of delivery changes (ex. you move from sending the prescription by text to only available through the patient portal). The patient may also revoke this authorization at any time.
I want to provide prescriptions digitally – can the patient refuse this option?
Yes. The patient has the choice of receiving a hard copy of the prescription at the end of the examination or having access to the prescription by digital means.
What if the patient refuses to sign the receipt document or the authorization to receive by digital means?
You need to note the refusal, sign it yourself and keep the copy for three years. The patient’s refusal does not change any obligation to provide the patient with their prescription.
Can I use one receipt document or authorization to receive by digital means to include both eyeglasses and contact lens prescriptions?
Yes
Can I ever charge a patient for a copy of their ophthalmic prescription?
No
Can the receipt document or authorization to receive by digital means include any waiver of liability if the patient obtains ophthalmic materials from a source other than my office?
Never
Does the new amendment require the inclusion of the patient’s PD on the prescription?
It does not. A word of caution, the FTC states “The prescription should be legible and complete. In addition, some states require you to include the patient’s pupillary distance in their prescription. If your patient wants to buy glasses online, they will need that measurement. If you take a patient’s pupillary distance measurement, we encourage you to provide it to your patient. It is likely they are entitled to a copy under Federal or State record requirements, which involves a process that may be more time-consuming for you and your patient.” While the PD issue is still the provider’s choice, everyone should be aware that the FTC is intent on consumers having access to options in the purchase of their ophthalmic materials and continual hurdles in place for the patient are likely to result in the passage of more onerous amendments to the FTC Rule.
For reference, the two main FTC guidelines are:
https://www.ftc.gov/business-guidance/resources/complying-eyeglass-rule
