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Patient Records and Contact Lens Release

By Carson & Adkins
FOA Legal Counsel

An optometrist is required to keep in confidence whatever he or she may learn in the discharge of his or her professional duties. Reports and records relating to the patient, including records relating to identity, examination, and treatment, constitute the confidential patient record. A contact lens or spectacle prescription written for the patient by the optometrist is considered part of the patient record.

Both Florida and federal law protect the confidentiality of information in a patient record. Generally, the patient is required to sign a written authorization form before the optometrist can discuss or release, in whole or part, confidential medical information [referred to as “protected health information” in HIPAA] to a third party. There are exceptions to this requirement that include releasing confidential medical information to the patient’s legal representative, to another health care practitioner involved in the care or treatment of the patient, and upon issuance of a subpoena from a court after proper notice to the patient or patient’s legal representative by the party seeking the records.

Despite the general confidentiality of patient records, the Fairness to Contact Lens Consumer Act effective February 2004, and the Contact Lens Rule issued by the Federal Trade Commission in July 2004 to implement the Act, require an optometrist who issues a contact lens prescription to provide or verify the contact lens prescription to anyone who is designated to act on behalf of the patient, including contact lens sellers. Under the Act, when the seller has provided the optometrist with all the information required by the Act [see last paragraph below for requirement information], the seller is deemed to be the agent of the patient and the optometrist cannot require the person acting on behalf of the patient to provide a signed written authorization form by the patient before providing or verifying the contact lens prescription.

The Act and the Contact Lens Rule provide that an optometrist must do the following:

Give a copy of the contact lens prescription to the patient when the contact lens fitting is complete, even if the patient does not ask for it. However, the Act and the Rule do not require that the optometrist provide the contact lens prescription before the fitting is complete.
Provide or verify the contact lens prescription to anyone who is designated to act on behalf of the patient, including a mail-order contact lens seller. The optometrist has “eight business hours” to verify the prescription upon receipt of a complete verification request by direct communication (telephone, fax, or e-mail). A “business hour” is an hour between 9 a.m. to 5 p.m., Monday through Friday (excluding federal holidays), plus hours on Saturday that the optometrist is regularly open.
In any response to a verification request, the optometrist must correct any inaccuracy in the prescription, inform the seller if the prescription was expired, and specify the reason if the prescription is invalid. If the optometrist does not respond within the required time, the prescription is automatically verified, and the seller may provide contact lenses to the patient.

Although the optometrist cannot require the contact lens seller to produce a signed written authorization from the patient before producing or verifying the prescription, the seller is required to provide the optometrist with the following information as part of the verification process: patient’s full name and address; contact lens power, manufacturer, base curve or appropriate designation, and diameter when appropriate; quantity of lens ordered; date of patient order; date and time of verification request; and a contact person for the seller, including name, fax, and phone number. The verification request is not complete and the “eight business hours” to verify does not begin to run until all of the above-listed information is provided by the seller.