Are the Eyeglass Rule/CL Rule even Constitutional?

[MikeAurelius]

Congress does not have the authority to grant authority to other bodies that Congress does not itself possess.

Yes. And Congress has the authority to regulate interstate commerce.

Article 1 Section 8 paragraph 3: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" It's right there in black and white.

Wherever any potential sale takes place, a patient visit is by no means "interstate commerce", and thus should not be subject to Congressional influence. Just because it happens does not mean it is legal, and my contention is that it is not.

If the transaction between parties crosses the border of two states, that is, by definition of "interstate commerce", and is totally subject to Congressional (and agency) influence.

I really don't care about your political affiliations, that's not the issue here. You have an incorrect view of the legalities. I suggest you consult an attorney who specializes in Interstate Commerce.

[MikeAurelius]

If you'd care to refresh your admitted lengthy period of time away from The Constitution of the United States of America, here's a link to help you out:

http://usconstitution.net/

[Tigerclaw]

Crayola's nice, please use a fruity color to explain why you think it's good for the patients that entrust you with their eye health that you plan to offer known false information on their Rx you write if they wish to fill it somewhere you don't like. I think you're the doctor down the road from me that doesn't give copies of Rx's to my clients, makes them come in person to sign a "release" then makes a *typo* on the written copy.f

DRK, you doubted what goes on down here, here's yer sign....

You sound sore. Need some salve?

[optical24/7]

You sound sore. Need some salve?

I rest my case.

[Tigerclaw]

Yes. And Congress has the authority to regulate interstate commerce.

Article 1 Section 8 paragraph 3: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" It's right there in black and white.



If the transaction between parties crosses the border of two states, that is, by definition of "interstate commerce", and is totally subject to Congressional (and agency) influence.

I really don't care about your political affiliations, that's not the issue here. You have an incorrect view of the legalities. I suggest you consult an attorney who specializes in Interstate Commerce.

For the fourth time: THE DOCTOR-PATIENT RELATIONSHIP IS NOT INTERSTATE COMMERCE.

And I only brought up political affiliations since someone else accused me of being on the fringe, a claim that, while incorrect, would have been further bolstered by my bring up of Ron Paul.

I am considering getting an attorney, but I was hoping I could get some useful adult discussion on the matter - maybe someone who has pursued this line of reasoning. Instead I get anti-optometry rhetoric.

[MikeAurelius]

For the fourth time: THE DOCTOR-PATIENT RELATIONSHIP IS NOT INTERSTATE COMMERCE.

It becomes interstate commerce when you deny them the ability to purchase eyewear WHEREVER they want, by not providing a PD, a function part of the Rx, just like the axis on cylindrical prescriptions.

There used to be a time when OD's refused to release prescriptions to patients, forcing them to use the in-house dispensary. That linkage was broken by the FTC. *Some* OD's retaliated by either fudging the numbers on the Rx or "counselling" their patients that the only place they will get "correct" spectacle lenses was to use the in-house dispensary. The FTC came down on them like sledgehammers.

As I wrote elsewhere, the PD is part of the prescription. Failure to provide it is similar to not using the patient's weight when prescribing blood pressure medication.

Your only reason for doing it is because you don't want "your" patients going to an on-line business to purchase eyewear. This is engaging in prior restraint of trade. Once the patient walks out the door, you have absolutely no control over what they do to get their glasses. And by not providing a PD, you are preventing them from buying online, which, as I've written before, will become illegal when the final rule is published.

No one is giving you anti-optometric rhetoric. Myself and others are simply telling you that your actions and comments are verging on illegality. I "get it" that you don't believe that online eyewear is a good thing. I totally understand. But in my opinion, you are shouting in the wrong direction.

If you want the existing rules (ANSI Z80 and ANSI Z87 in their most current form) enforced, the FDA is where you should be looking. They are the ones charged with the responsibility of enforcing the standards on medical devices. There's a problem however. The FDA does not have enough staff to adequately cover even 5% of the optical labs in the United States. Thanks to actions taken by Congress, the FDA has been underfunded for decades, and is able to only carry out inspections on semi-finished lens manufacturers (and then only rarely), and the occasional interception of eyewear coming into the United States from China.

What good does it do to have an inspection on a semi-finished lens manufacturer, when there are labs out there in the US that blatantly and routinely ignore Z80 and Z87, some of these labs are even "locked in" to some of the widely used insurance plans. (Think Davis as a shining example.)

The FTC should not be the target of this witch-hunt if you want on-line labs to provide "in specification" eyewear.

[Barry Santini]

For the fourth time: THE DOCTOR-PATIENT RELATIONSHIP IS NOT INTERSTATE COMMERCE.c.

It may not have been previously, but advances in technology and tele medicine will call for a re evaluation of this precept.

B

[Tigerclaw]

It becomes interstate commerce when you deny them the ability to purchase eyewear WHEREVER they want, by not providing a PD, a function part of the Rx, just like the axis on cylindrical prescriptions.

There is absolutely ZERO legal precedence for this. If this were true then state boards would be violating IC by disallowing OD's to have reciprocity in licensing. or by restricting prescribing to OD's because denying that pizza delivery guy the right to prescribe a pair of glasses could interfere with you ordering online. Nothing in MY prescription prohibits a patient whatsoever in buying glasses from any state he so chooses. Just because another method becomes available that eliminates a role typically performed by an optician becomes available, that doesn't position me as one who is interfering. It is not my job or desire to facilitate a patient going to any website in the world and buying who knows what for themselves or worse, their kids.

And by the way a prescription is a prescription is a prescription. A PD is not a prescription, nor is it part of one. Wishing doesn't make it so.

[Tigerclaw]

It may not have been previously, but advances in technology and tele medicine will call for a re evaluation of this precept.

B

If this becomes the case God help us all because that will be the end of state licensure period, and will be the end of independence in all medicine.
Luckily many of us are involved in advocacy to try to keep some sense of sanity among this chaos. It would be nice if some of you quit cheering this collapse instead of cutting of your own nose to spite your face.

[MikeAurelius]

There is absolutely ZERO legal precedence for this. If this were true then state boards would be violating IC by disallowing OD's to have reciprocity in licensing. or by restricting prescribing to OD's because denying that pizza delivery guy the right to prescribe a pair of glasses could interfere with you ordering online. Nothing in MY prescription prohibits a patient whatsoever in buying glasses from any state he so chooses. Just because another method becomes available that eliminates a role typically performed by an optician becomes available, that doesn't position me as one who is interfering. It is not my job or desire to facilitate a patient going to any website in the world and buying who knows what for themselves or worse, their kids.

And by the way a prescription is a prescription is a prescription. A PD is not a prescription, nor is it part of one. Wishing doesn't make it so.

There is plenty of precedent, and if you hadn't left law school to become an OD, you'd know that.

Licensing is on a state-by-state basis, and has nothing to do with interstate TRADE. Reciprocity is granted in cases where the practitioner is located along a state border, happens all the time.

You *ARE* (or will be) restraining interstate trade by not giving the patient his PD. Which *IS* part of the prescription, whether you choose to agree with that or not. As I've written before, it is the physical measurement of the distance between the center of the pupils as referenced by the center line of the bridge of the nose. It is a measurement by which a prescription *CANNOT* be manufactured (properly), exactly the same as the physical measurement of the corrective powers of the prescribed lens, and the axis of any cylinder power.

Wishing won't make it not true.

The FTC is simply saying that the PD is now (or will be) part of the prescription that you *must* give to the patient. If you don't want to do that, then don't. Simple as that.

[MikeAurelius]

It would be nice if some of you quit cheering this collapse instead of cutting of your own nose to spite your face.

None of us are cheering, merely bowing to the inevitable. The same complaints were made about automobiles by the horse and carriage folks. Same with the telephone by the telegraph folks. History repeats itself again and again. If you don't move with the times, you get trampled and left in the dust.

Yes, you can certainly make a case that purchasing from a B&M store, in person for fitting and adjustment, will result in a far better pair of spectacles. I don't believe anyone would deny that. However, the case can also be made that roughly 66% of the glasses-wearing public with corrections between +2/-2 diopters don't need that "level of care" or however you want to phrase it. Show me where someone wearing a pair of spectacles made at Cheap Glasses Online dot com has died or been seriously injured because of them. You can't, because no one has died or been seriously injured.

But this is truly getting old. It's obvious you aren't going to change your mind, and you'll probably get a non-compliance letter from the FTC, based on a complaint from one of your patients. So be it. I wish you all the best in your future endeavors.

[Tigerclaw]

There is plenty of precedent, and if you hadn't left law school to become an OD, you'd know that.

Please provide ONE EXAMPLE of a case where someone must do further work to enable someone to buy something online.

Licensing is on a state-by-state basis, and has nothing to do with interstate TRADE. Reciprocity is granted in cases where the practitioner is located along a state border, happens all the time.

It has INFINITELY more to do with trade than me providing a PD. A license RESTRICTS trade to certain people, not based on qualifications even but on meeting arbitrary criteria. This is where I stop listening because you are just saying things you want to be true and presenting them as facts, such as this:

You *ARE* (or will be) restraining interstate trade by not giving the patient his PD. Which *IS* part of the prescription, whether you choose to agree with that or not.

And this:

The FTC is simply saying that the PD is now (or will be) part of the prescription that you *must* give to the patient. If you don't want to do that, then don't. Simple as that.

I was afraid of this when I started the thread. I used to say that everyone should be required to take at least one year of law school so they break the bad habit of thinking laws are what SHOULD be done, like people thinking they have a right to trespass to reclaim stolen property, etc. Thanks for reminding me of that important lesson. I hope you learn it someday.

[Tigerclaw]

None of us are cheering, merely bowing to the inevitable.

You call it bowing, I call it bending over. Either way you should be standing up. This is a country of laws made by publicly elected men and women. This is not a country where things just "happen". This isn't a hurricane or a meteor or anything that must change by necessity. Cars were superior to the horse-and-buggy. That is not the case with online glasses.

[Tigerclaw]

I'll be back later. I have to go open the optical so people can try on sunglasses before they order online. Can't be caught restricting interstate commerce ya know...

[MikeAurelius]

That is not the case with online glasses.

That's something that the FDA should be concerned about. Tell them.

[drk]

Two Cheesrburgers special at Burger king: $1.00 ($0.50 each)

Great burger in restaurant: $15.00

This is a 30X markup.

Big deal.

B

It is a big deal. How long is that Burger King special going on!?

[Tigerclaw]

That's something that the FDA should be concerned about. Tell them.

I've actually considered that. I am opening a new store and I can't get Japanese frames from one manufacturer because they don't have an agent in the US, and even frames are "medical devices". While I disagree to some extent, I nonetheless have to abide by that (or pay $4k to become their agent). So why isn't there regulation of online eyewear?

[Chris Ryser]

Here is another equivalent to the post number 2 of this thread, proving that the on-line opticals are not asleep, and very probably are being run by seasoned and smart optical specialist's that have been around for a while, or they have hired some of them.

I order to get around of any withholding the important PD, they are telling the consumer how to do it yourself. Is it illegal to measure the distances between 2 visible pupils ?

Here is another one:

Measure your pupillary distance (PD)
Before you get started, you will need:
·
WEBCAM
·
CARD WITH MAGNETIC STRIP
·
WELL-LIT SPACE


see all of it at: ===========>

https://pd.warbyparker.com

[MikeAurelius]

So why isn't there regulation of online eyewear?

On what basis? There's no national registration or regulation of optical labs/dispensaries. Most, if not all of the on-liners located in the US are located in non-license states, therefore, no dispensary license is required. As I wrote before, the FDA is so far underwater for staffing that they could never ever hope to be able to check on labs, where, based on the actual rules of their mandate, they should be checking and registering.

And because of the interstate nature of the internet, even states with regulatory rules have been stymied by the fact that only the FTC can regulate interstate businesses.

The FDA has intercepted and checked eyewear coming in from China; a couple of years back, they refused entry to several batches from one company for falsified documentation. Under the existing federal rules, what should be happening is that every single lab in the US should be FDA registered and physically inspected at least once every two years. There are documentation requirements for returns and complaints. A high level of returns and complaints enhances the inspection requirement. ANSI standards Z80 and Z87 would be the basis for the inspection, and depending again on the problems found, an inspector has the power to randomly sample finished spectacles going out the door.

This is the process that is followed by companies such as Medtronic and Stryker, just to name a few.

The FTC does not have that level of power. Its only mandate is the regulation of interstate commerce, allowing or disallowing (under very strict rules) various types of commerce, as well as setting the rules under which consumers are affected by any transaction that could take place on an interstate level -- which brings us back to the PD rule. The FTC has been swamped by complaints, and has done what any traditional bureaucracy does, makes a rule so that the complaints stop.

[Uncle Fester]

It's still all about the PD. Note definitions (g).

Electronic Code of Federal Regulations

View past updates to the e-CFR. Click here to learn more. e-CFR data is current as of October 15, 2015

Title 16 → Chapter I → Subchapter D → Part 456

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Title 16: Commercial Practices

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PART 456—OPHTHALMIC PRACTICE RULES (EYEGLASS RULE)

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Contents
§456.1 Definitions.
§456.2 Separation of examination and dispensing.
§456.3 Federal or State employees.
§456.4 Declaration of Commission Intent.
§456.5 Rules applicable to prescriptions for contact lenses and related issues.

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Authority: 15 U.S.C. 57a; 5 U.S.C. 552.
Source: 57 FR 18822, May 1, 1992, unless otherwise noted.
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§456.1 Definitions.

(a) A patient is any person who has had an eye examination.
(b) An eye examination is the process of determining the refractive condition of a person's eyes or the presence of any visual anomaly by the use of objective or subjective tests.
(c) Ophthalmic goods are eyeglasses, or any component of eyeglasses, and contact lenses.
(d) Ophthalmic services are the measuring, fitting, and adjusting of ophthalmic goods subsequent to an eye examination.
(e) An ophthalmologist is any Doctor of Medicine or Osteopathy who performs eye examinations.
(f) An optometrist is any Doctor of Optometry.
(g) A prescription is 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.

I think Tigerclaw there's a problem when Massachusetts' Optometric association as policy tells members to give the binocular PD on request.

I would imagine the various States OD's societies decided long ago not to challenge the FTC over the Eyeglass Rules constitutionality. Time would be better spent writing to the FTC and Schumer yours and others of like mind who think the fix isn't in on this. Required PD's on rx's is coming soon.

Personally I think fighting it is as productive as shoveling sand against the tide.

[jcasowder]

PDs are not considered part of they prescription in my neck of the woods.

http://web1.ncoptometry.org/document...pted032908.pdf

[Tigerclaw]

Funny how they'll go through all this to save an occasional patient a few bucks but they can't seem to do anything about LuVSPottilor.

[Paul Smith LDO]

Just finished trial framing a young man about 15 minutes ago.
Neutralized old lenses OD -3.85 -0.625 x 062 OS -1.50 -0.625 x 135, prior to his exam with our Dr.
New Rx OD -3.75 -0.75 x061 OS -1.50 -0.75 x131
He can't see out of his new DIY glasses. I trial framed the new Rx and he was doing just fine. I explained the difference between "adequate" and "optimized" frame and lens work. I have not neutralized a set of DIY glasses in quite some time and will continue doing so until I feel that it is absolutely necessary.
The problem that I noticed immediately was the material, FBC differences, and the frame was never fit to him; making an adjustment out of the question. Will he come back to me to get his new Rx filled, who knows but his issue was solely not the IPD.
I get between 5 to 8 of these EVERY WEEK .

[smallworld]

http://www.zennioptical.com/measuring-pd-infographic

At the bottom of this link there is a facebook comments section that is good for a few laughs if you have a sense of humor.

And thanks Barry, now I want a cheeseburger.

[CCGREEN]

Those who believe/don't believe that a PD, is/is not required to be on the physical Rx. It would be nice if they would provide legal prof of where they get their information instead of expecting the world to believe that it is true just because they said it.
Differentiate as to if what they have is a FEDERAL statue, a STATE statue or a BOARD rule. If a board rule which state is that board in?
Most do not want to do that because it requires more work. Rather just spout off and expect it to be accepted by the sheep people out there.