2015-21578. Ophthalmic Practice Rules (Eyeglass Rule)

AGENCY:

Federal Trade Commission (“FTC” or “Commission”).

ACTION:

Advance notice of proposed rulemaking; request for comment.

SUMMARY:

The Commission is requesting public comment on its Trade Regulation Rule entitled “Ophthalmic Practice Rules (Eyeglass Rule),” which requires eye care practitioners to release eyeglass prescriptions to their patients (“Eyeglass Rule”). The Commission is soliciting comments about the efficiency, costs, benefits, and regulatory impact of the Rule as part of its systematic review of all current Commission regulations and guides. All interested persons are hereby given notice of the opportunity to submit written data, views, and arguments concerning the Rule.

DATES:

Written comments must be received on or before October 26, 2015.

ADDRESSES:

Interested parties may file a comment at https://ftcpublic.commentworks.com/​ftc/​ophthalmicruleanprm online or on paper, by following the instructions in the Instructions for Submitting Comments part of the SUPPLEMENTARY INFORMATION section below. Write “Eyeglass Rule, 16 CFR part 456, Project No. R511996” on your comment, and file your comment online at https://ftcpublic.commentworks.com/​ftc/​ophthalmicruleanprm by following the instructions on the web-based form. If you prefer to file your comment on paper, write “Eyeglass Rule, 16 CFR part 456, Project No. R51199” on your comment and on the envelope and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT:

Alysa Bernstein, Attorney, [phone], or Bonnie McGregor, Federal Trade Investigator, [phone], Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

The Eyeglass Rule requires an optometrist or ophthalmologist to provide the patient with one copy of the patient's eyeglass prescription, at no extra cost, immediately after an eye examination is completed.^[1] It defines a prescription as “the written specifications for lenses for eyeglasses which are derived from an eye examination, including all of the information specified by state law, if any, necessary to obtain lenses for eyeglasses.” ^[2]

The Rule prohibits an optometrist or ophthalmologist from conditioning the availability of an eye examination on a requirement that the patient agree to purchase ophthalmic goods from the optometrist or ophthalmologist,^[3] or providing the patient with a notice waiving the liability or responsibility of the provider for the accuracy of the exam or the ophthalmic goods and services dispensed by another seller.^[4]

The Commission first promulgated the Eyeglass Rule in 1978 based on a finding that many consumers were being deterred from comparison shopping for eyeglasses because eye care practitioners refused to release prescriptions, even upon a patient's request, or charged an additional fee for release of a prescription.^[5]

In 1985, the Commission published a Notice of Proposed Rulemaking (“NPR”) requesting comments on certain issues relating to the Rule, including whether or not the prescription release requirement should be modified to require that prescriptions be given only to patients who request them, modified to require only that eye care practitioners offer, rather than automatically provide, prescriptions to patients, and whether the Rule should be extended to require that optometrists and ophthalmologists provide a duplicate copy of prescriptions to patients who lost or misplaced the original.^[6] After considering the Rulemaking record, the Commission decided in 1989 to retain the Rule's requirement that prescriptions be automatically released.^[7] The Commission did not receive substantial evidence indicating that the practice of refusing to release duplicate copies of eyeglass prescriptions to patients who had lost or misplaced the originals was prevalent and as a result determined that rulemaking in that area would not be appropriate.^[8]

In 1997, the Commission issued a Request for Public Comment regarding the Rule, inviting comments on the overall costs and benefits of the Rule, and asking again if the automatic prescription release requirement should be modified.^[9] In 2004, following comments from numerous parties, the Commission determined to retain the Eyeglass Rule without modification.^[10]

II. Regulatory Review of the Eyeglass Rule

The Commission periodically reviews all of its rules and guides. These reviews seek information about the costs and benefits of the agency's rules and guides, and their regulatory and economic impact. The information obtained assists the Commission in identifying those rules and guides that warrant modification or rescission. Therefore, the Commission solicits comments on, among other things, the economic impact and benefits of the Rule; possible conflict between the Rule and State, local, or other Federal laws or regulations; and the effect on the Rule of any technological, economic, or other industry changes.

III. Issues for Comment

The Commission requests written comment on any or all of the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and reference to empirical data or other evidence upon which comments are based whenever available and appropriate. Please also provide evidence of the prevalence of any unfair acts or practices that any proposed modification would address.

A. General Issues

1. Is there a continuing need for the Rule? Why or why not?

2. What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?

3. What modifications, if any, should be made to the Rule to increase its benefits to consumers?

(a) What evidence supports the proposed modifications?

(b) How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

(c) How would these modifications affect the benefits to consumers?

4. What impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers?

5. What significant costs, if any, has the Rule imposed on consumers? What evidence supports the asserted costs?

6. What modifications, if any, should be made to the Rule to reduce any costs imposed on consumers?

(a) What evidence supports the proposed modifications?

(b) How would these modifications affect the benefits provided by the Rule?

7. What benefits, if any, has the Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

8. What modifications, if any, should be made to the Rule to increase its benefits to businesses, including small businesses?

(a) What evidence supports the proposed modifications?

(b) How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

(c) How would these modifications affect the benefits to consumers?

9. What significant costs, if any, including costs of compliance, has the Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

10. What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, including small businesses?

(a) What evidence supports the proposed modifications?

(b) How would these modifications affect the benefits provided by the Rule?

11. What evidence is available concerning the degree of industry compliance with the Rule?

12. What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?

13. Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

(a) What evidence supports the asserted conflicts?

(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?

B. Specific Issues

1. Should the definition of “prescription” be modified to include pupillary distance? Why or why not?

(a) What evidence supports such a modification?

(b) How would this modification affect the costs the Rule imposes on businesses, including small businesses?

(c) How would this modification affect the benefits to consumers?

2. Should the Rule be extended to require that prescribers provide a duplicate copy of a prescription to a patient who does not currently have access to the original? Why or why not?

(a) What evidence supports such a modification?

(b) How would this modification affect the costs the Rule imposes on businesses, including small businesses?

(c) How would this modification affect the benefits to consumers?

3. Should the Rule be extended to require that a prescriber provide a copy to or verify a prescription with third parties authorized by the patient? Why or why not?

(a) What evidence supports such a modification?

(b) How would this modification affect the costs the Rule imposes on businesses, including small businesses?

(c) How would this modification affect the benefits to consumers?

IV. Instructions for Submitting Comments

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 26, 2015. Write “Eyeglass Rule, 16 CFR part 456, Project No. R511996” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/​os/​publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as a Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information.

In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comments to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel, in his sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/​ftc/​ophthalmicruleanprm by following the instructions on the web-based form. If this document appears at http://www.regulations.gov/​#!home,, you also may file a comment through that Web site.

If you file your comment on paper, write “Eyeglass Rule, 16 CFR part 456, Project No. R511996” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

Visit the Commission Web site at http://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before October 26, 2015. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/​ftc/​privacy.htm.

By direction of the Commission.

Donald S. Clark,

Secretary.

Footnotes

1.  16 CFR 456.2 (a) and (c). A provider may withhold a patient's prescription until the patient has paid for the eye examination, but only if the provider would have required immediate payment if the examination had revealed that no ophthalmic goods were needed. Section 456.2(a).

2.  16 CFR 456.1(g).

3.  16 CFR 456.2(b).

4.  16 CFR 456.2(d).

5.  Advertising of Ophthalmic Goods and Services, Statement of Basis and Purpose and Final Trade Regulation Rule, 43 FR 23992, 23998 (June 2, 1978). The Commission also found that some practitioners refused to conduct an examination unless the patient agreed in advance to purchase eyeglasses from the prescriber and that some practitioners conditioned the release of a prescription on the signing of a waiver of liability. Id.

6.  Ophthalmic Practice Rules; Proposed Trade Regulation Rule; Notice of Proposed Rulemaking, 50 FR 598, 602 (Jan. 4, 1985).

7.  Trade Regulation Rule; Ophthalmic Practice Rules; Final Trade Regulation Rule, 54 FR 10285, 10303 (Mar. 13, 1989). Citing to significant non-compliance with the automatic release requirement of the Rule and a lack of consumer awareness about prescription rights, the Commission determined that there was not sufficient evidence in the record to conclude that the automatic release provision was no longer needed. Id.

8.  54 FR 10285, 10303 (Mar. 13, 1989).

9.  Ophthalmic Practice Rules; Request for Public Comments, 62 FR 15865 (Apr. 3, 1997).

10.  Ophthalmic Practice Rules; Final Rule; 69 FR 5451 (Feb. 4, 2004).