Risk Management



Release of Contact Lens Prescriptions

By Kimberly Wittchow, JD

OMIC Staff Attorney

Digest, Winter 2004

Ophthalmologists have long been concerned about the safety issues and liability risks associated with patients filling their contact lens prescriptions through third-party vendors and not returning to the original provider for appropriate follow-up care. Patients who experience problems with their lenses may blame the ophthalmologist and allege improper prescribing or failure to warn of complications.

Over the past several years, contact lens dispensers have urged federal lawmakers to pass legislation allowing consumers to shop for the best prices. Their perseverance was rewarded when Congress passed the federal Fairness to Contact Lens Consumers Act. The Act, which took effect February 4, 2004, makes it even more important for ophthalmologists and their staff to be aware of patient safety issues and provider liability risks when prescriptions for contact lenses are filled by third-party dispensers.

While the American Academy of Ophthalmology and other provider organizations were able to negotiate many positive changes to the Act before its passage, several troublesome and confusing provisions remain. This article explains certain provisions of the new law and points out areas where questions of interpretation and implementation remain.

Prescription Release

First, the Act requires that a prescriber give the patient a copy of the prescription at the completion of the fitting, whether or not the patient requests it. As defined in the Act, a “contact lens fitting” may include medically necessary follow-up exams. Thus, whether you are prescribing for a first-time or repeat contact lens wearer, you do not need to provide the prescription until you have made the medically necessary determination, through follow-up visits if appropriate, that the prescription is accurate.

However, what happens if a non-disposable or custom soft or rigid lens must be purchased by the patient before the fitting can be completed? It seems you would have to release the prescription to the patient without the proper fitting, or else have the patient order the lenses through your office. Until there is clarification on this issue, you must consider how to marry compliance with this law with prudent patient care decision-making.

 Fee and Waiver Limitations

Second, the Act places several limitations on prescribers. You may not require the purchase of contact lenses from yourself or another person or charge an additional fee as a condition of providing a copy or verification of the prescription. However, you can require payment of your regular fees for an eye exam, fitting, and evaluation before the release of the prescription, but only if you normally require immediate payment for other services not related to the provision of ophthalmic goods. Finally, you cannot require the patient to sign a waiver or release as a condition of verifying or releasing the prescription. In addition, you cannot disclaim liability for “the accuracy of the eye examination.” However, you might still disclaim liability for mistakes made in filling the prescription or for inferior products dispensed by third parties.

Prescription Verification

Third, you must also provide or verify the contact lens prescription, by electronic or other means, to any person designated to act on behalf of the patient. The Act lists the information a seller seeking such a verification must provide, including a fax and telephone number for a contact person at the seller’s company. However, since the Act does not specify what a non-seller designee must present in order for you to provide or verify the prescription, following the HIPAA guidelines (or stricter state law) regarding release of protected health information is advised.

Verification of the prescription by the prescriber can take place in three different ways. The first two verifications occur either when you confirm that the prescription is accurate or you provide the accurate prescription, as the Act requires you do, when the seller tries to verify an inaccurate prescription. The third type, passive verification, was unsuccessfully lobbied against by the Academy. Passive verification means that if you fail to communicate with the seller within eight business hours (or similar timeframe as defined by the FTC’s mandated rulemaking under the Act) after receiving a valid verification request, the prescription is presumed verified by you. If the prescription is inaccurate, expired, or otherwise invalid, you are required to specify on what basis it is so and the seller cannot then fill the prescription. The obvious worry is that if you do not verify the prescription in the one day allowed for turnaround, the seller may fill an expired and/or inaccurate prescription to the detriment of the patient.

Finally, although the Act mandates an expiration date of not less than one year for contact lens prescriptions, you can specify a different expiration date based on your medical judgment as long as you document your reasons in the patient’s medical record.

For sample letters and more information about releasing contact lens prescriptions, visit OMIC’s web site and go to Risk Management under Resources and click on Medical Office Patient Safety/Communication.

 

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