Give Vision Patients Protection, not ‘Eye of Newt’

Published June 9, 2016

Consumer Power Report #508

Federal and state lawmakers have provided Americans a surplus of legislation cleverly titled to convey promises to protect patients’ interests. This boom has a bust. The reality that results from implementing such legislation is far more sobering, expensive, and restricting of patient choice than lawmakers and their constituents may have at first believed.

Crafters of vision care legislation before Congress and adopted by some states excel at naming their regulations so as to suggest they champion consumer-oriented eye health when they do the opposite.

The fools’ gold standard for language that double-deals to patients comes not from vision care legislation per se but the Patient Protection and Affordable Care Act (ACA). President Barack Obama’s sweeping signature health insurance reform law has failed to deliver on at least six hallmark broken promises, which Genevieve Wood recounted in a Heritage Foundation video when Obamacare turned six years old. Chief among these: “If you like your health care plan, you’ll be able to keep your health care plan,” which Obama promised Americans 37 times before the law sent many of those plans packing.

The bottom fell out of the “patient protection” part of ACA when the Obama administration dismissed the impact of the plan cancellations because they would affect fewer than 5 million Americans. This was little consolation to the patients who lost their plans, who tend to view themselves as free humans and citizens possessing rights, not as statistics, as the Obama administration treated them.

A more broadly felt disappointment of ACA has been health insurance’s unaffordability, as the cost of health insurance premiums and deductibles continues to rise. Many who obtain health insurance, with or without a federal subsidy, can scarcely afford to use it, due to average plan deductibles having increased in 41 states in 2016, according to Freedom Partners’ 2016 Obamacare Deductibles Increase Tracker. In eight states, deductibles rose by more than $500 per plan on average.

Unfortunately, ACA isn’t the only federal legislation feinting toward protecting patients while hacking away at patients’ ability to choose health care providers and plans best for them.

The Contact Lens Consumer Health Protection Act of 2016, introduced by U.S. Sen. Bill Cassidy (R-LA) on April 11, could result in vision care patients waiting longer to have their prescriptions filled, by threatening sellers of contact lenses with a $40,000 fine for shortcutting the bill’s proposed new regulations.

The bill would indefinitely prolong the period contact lens sellers (and the patients they serve) must wait to obtain prescription verification from those patients’ prescribers. Under current law, prescriptions are considered automatically verified when a prescriber fails to respond to the seller’s query within eight hours. The legislation would lift this eight-hour maximum waiting period in cases when a prescriber expresses concern about a prescription a seller is trying to fill. The bill does not define a deadline by which the prescriber must provide verification or a new prescription.

The Contact Lens Consumer Health Protection Act could leave some of the 40 million Americans who wear contacts flying blind. Optometrists could delay providing certain sellers verification, indirectly steering patients to contact lens suppliers from whom the optometrists receive rebates, discounts, and other kickbacks.

In an open market, long wait times are a great reason for patients to seek service elsewhere, but when long waits are a consequence of bad actors leveraging government regulations to stymie suppliers, patients pay the price.

That is why Aaron Dallek, CEO and cofounder of Opternative, calls Cassidy’s act a “protectionist bill,” adding that “no regulations should be passed to protect entrenched interests in any industry, let alone health care, eye care, or around contact lenses,” in an article Health Care News will publish later this month.

Dallek also has spoken out against recent state-level legislation advancing vision care special interests in the sheepskin of patient protection.

Opternative, Dallek’s company, offers a $50 do-it-yourself online eye exam using a customer’s laptop and smartphone. Optometrists or ophthalmologists licensed in the customer’s state interpret the results and provide users with prescriptions or refer them for in-person examinations.

South Carolina lawmakers essentially banned Opternative’s exam with the ironically titled Eye Care Consumer Protection Law by pronouncing invalid any prescriptions obtained using a kiosk. Recognizing the legislation as protecting certain optometrists and ophthalmologists from cutting-edge, consumer-oriented competition, Gov. Nikki Haley (R) vetoed the bill, writing in her May 16 veto message such a law would put South Carolina “on the leading edge of protectionism, not innovation.” Lawmakers overrode her veto the same week.

Foul is foul, no matter how benevolent a bill’s title. Instead of succumbing to the spell of special interests, lawmakers should fight to supply their constituents with less eye of newt in federal and state vision care policy and more genuine eye health care protection against the special interest witches’ brew.

— Michael Hamilton



A fight is brewing in Colorado over a proposed amendment to the state constitution that would institute a single-payer health-care system. The major assault on the controversial ballot initiative, which goes to voters in November, is coming not from Colorado Republicans who oppose the plan but from Governor John Hickenlooper and other Democratic leaders.

Colorado’s Amendment 69 would raise $25 billion – nearly equal to the state’s 2015 budget – through a 7 percent payroll tax on employers, a 3 percent tax on employees’ gross pay, and a 10 percent tax on self-employed workers’ net income to fund “ColoradoCare.” The plan would automatically cover all residents, including illegal immigrants and the unemployed, allow the state to negotiate lower prices on drugs and medical equipment, and create an elected board to set rates for health-care providers. Three organizations – Colorado Foundation for Universal Health Care, Co-operate Colorado, and ColoradoCareYes – joined forces to research, design, and launch the successful signature-gathering campaign.

Despite the national Democratic Party’s long-held goal of instituting some form of universal health care, top Colorado Democrats have put political considerations ahead of the ambitious push for a single-payer framework. Some health-care providers believe the loss of the ability to set their own rates would deprive them of revenues.

Both Hickenlooper and U.S. Senator Michael Bennet have received sizable campaign contributions from health-care companies that stand to lose out if Amendment 69 passes. Hickenlooper has labeled the initiative “premature” and suggested that reforms that the state has already launched, such as instituting a review and approval process for insurance premium hikes and expanding Medicaid eligibility, need more time to “bear fruit.” …

SOURCE: Branko Marcetic, The American Prospect


The Health Services Development Agency and the lawmaker who sponsored successful legislation to amend its role are at odds over an interpretation of a new law, which will impact how providers apply to build or offer new services.

The HSDA, which administers the certificate of need process, is trying to raise its fees in an emergency rule-making procedure ahead of the July 1 enactment. But agency officials and state Rep. Cameron Sexton, R-Crossville, disagree on when the self-sufficiency is necessary, and thus, whether the emergency rule-making is necessary.

Under the legislation, the HSDA, a $1.2 million agency, will have to make up $200,000 it gets from the state’s general fund even though the legislation eliminated several instances in which health care providers have to apply for permission and pay fees – reducing the agency’s revenue.

Sexton argues in a letter sent to Jim Christoffersen, general counsel of the HSDA, that the fee raise is pre-emptive because the agency is set to receive state funding for the 2016–2017 fiscal year.

Sexton wrote, in a letter obtained by The Tennessean, that the “obligation to become self-sufficient is a two-year process” that gives the agency “time to meet this standard and adjust the fee schedule.” …

SOURCE: Holly Fletcher, The Tennessean


An annual struggle between Maryland’s hospitals and the state’s Health Services Cost Review Commission is tradition dating back to the 1970s. Under a unique arrangement with the federal government that has allowed the state to collect larger reimbursements from Medicare than it otherwise would, Maryland for four decades maintained a system in which state regulators determined annually what each service a hospital provided would cost. It kept the rate of growth for inpatient hospital care lower than the national average for many years, but the changing landscape of health care made it obsolete.

Two years ago, the state updated the partnership in a radical way. No longer would hospitals operate under a fee-for-service model, but instead they would be paid a fixed amount to cover the costs of caring for the patients in their catchment areas. Suddenly, the incentive went from putting patients in beds and performing procedures to keeping them healthy and at home.

As a result, though, this week’s meeting of the HSCRC is particularly fraught. No longer does the regulatory body decide what hospitals can charge, it decides, in effect, what their budgets will be. It’s both much harder for state regulators to manage and more consequential for the hospitals. If the numbers aren’t adding up, a hospital can’t any longer try to better market its more lucrative services; it’s stuck.

The Maryland Hospital Association and others are pushing back from a recommendation by the HSCRC that would hold global revenue growth to 2.02 percent, or just 1.49 percent when factoring in the growth in the patient population. They argue that such a low rate of growth would inhibit their ability to make the kinds of investments that are necessary to ensure the ultimate success of the new arrangement. The issue is particularly acute for academic medical centers like Johns Hopkins, for which the move to global budgeting has been more difficult. We hope the state regulators will take their suggestions seriously and allow for more breathing room in next year’s budgets. …

SOURCE: The Baltimore Sun


Pharmacies around the country are making extra efforts to ensure that naloxone is as accessible as possible, including dispensing it without a prescription in multiple delivery methods. For national chains like Walgreens and CVS, that entails working closely with state regulators to ensure compliance and collaborating with prescribers to implement standing order agreements.

Walgreens currently dispenses the drug without an individual prescription at more than 1,500 pharmacies throughout nine states (Alabama, Indiana, Massachusetts, New Jersey, New Mexico, New York, Ohio, Pennsylvania and Rhode Island) and will be soon be expanding its initiative to the other 26 states where regulations allow it. …

Although it varies by location, Walgreens and CVS Pharmacy offer naloxone in both the injectable and twist-on nasal spray versions. In states where it’s available without a prescription, the individual simply walks up to the pharmacy counter, where the naloxone would be dispensed just like any other medication. From beginning to end, the process takes only about 15 minutes.

Some of the states that allow the dispensing of naloxone under a physician’s standing order have reporting requirements, including notifying the physician and having the person obtaining the medication acknowledge that they have received training on its proper administration.

There were more than 16,000 deaths related to prescription opioid use in 2013, and 8,000 more involving heroin. Naloxone has saved lives, which adds urgency to programs that make it more accessible. However, it can cause problems when not administered correctly, so pharmacies are doing what they can to ensure patients are informed and know how to get medical help. …

SOURCE: Mike McCue, Behavioral Healthcare