Craig S Steinberg, O.D., Esq. Optometric & Healthcare Law

BE ALL YOU CAN BE

An Editorial by Craig S Steinberg, OD, JD

Over the past 30+ years optometry and optometrists worked hard, successfully moving the profession beyond its traditional domains of glasses and contact lenses, gaining the skills and privileges to treat a wide variety of common, and sometimes not so common, eye diseases. Today every state has some form of therapeutic drug law in place. Some more expansive than others, to be sure, but that's more the result of geopolitical influences in the states than anything having to do with optometric competency or training. All that time, money, and committed effort by some of our colleagues and state associations has brought us to where we are today. Stuck.
 

Optometry is stuck in a quagmire at the mercy of medically controlled third party health plans. We are, in most states, on the outside trying to get access as a participating provider (e.g. in-network provider) to health plans that are typically run by physicians for physicians. If we, as "primary care optometrists," are to truly make a difference and, as they say in the Marines, be all we can be, we'll need to penetrate into those plans and become a part of their network of preferred providers. Until our professional medical services, our exams and our diagnostic and therapeutic procedures, are covered by medical health plans and our patients don't face financial penalties for utilizing our services, we can not be all that we can be.
 

In March, 2010, the U.S. Congress passed and the President signed the Patient Protection and Affordable Care Act, e.g., the health care reform law. That law includes the much heralded Harkin Amendment*. When Harkin takes effect in 2014 health plans that previously excluded optometry, principally ERISA or employer-based health plans, cannot exclude us solely because we are optometrists and not medical doctors. They must allow their beneficiaries to obtain eye care services within the scope of our license from an optometrist. Sounds pretty good, doesn't it? Since that law was passed the AOA has reminded me of President Bush standing on the aircraft carrier with the big sign behind him saying "Mission Accomplished." But, is it?

Today, for most of this country's private optometric practices, the Harkin Amendment is simply not enough, and, in fact, could leave us very vulnerable. Harkin has two gaping holes, which are expressly stated in the law. It does not ensure that any willing provider will have access to be or allowed to be a participating provider (e.g. in-network provider) in a health plan, and it does not ensure equal reimbursement. While some states, Connecticut for example, have passed legislation ensuring access and parity at the state level, most states have not. Virginia, for instance, has an any-willing-provider law, but not reimbursement parity, and California has neither. Moreover, because those provisions are not in the Federal law, there is a risk that in those states that have passed such laws, the state laws could be preempted by the Federal law when it takes effect, just as ERISA has been interpreted to preempt state laws.

Without an any-willing-provider provision and without fee parity optometry is only assured being a non-participating (aka out of network) provider on health plans, and, when we provide non-participating or out-of-network services to a patient, our reimbursed fees may be less than what a non-participating ophthalmologist would have been paid for the same services. Remember, third party health plans build significant financial incentives into their plans to drive their enrollees into the offices of their participating (contracted) providers and to disencourage them from using out-of-network providers.

There is nothing more important today for optometry than pursuing legislation, Federal if possible, or state by state if that's what it takes, that ensures that any willing provider who meets a plan's qualifications can participate in the plan, and that ensures an optometrist will be paid the same as a physician for providing the same services. Without those two additions to law, optometry is stuck. We will continue to have skills and tools, and even to gain new ones, that we cannot fully utilize. The reality is, most of our patients will seek care from participating (in-network) providers because their benefits are better when they go in-network.

This is no secret. But the AOA, which purports to represent the profession and some 36,000 of us, is focused instead on promoting its false board certification program, the ABO, as if having a new credential will solve the problem and ensure our access to the third party plans. It won't. It can't. It isn't even close. Even if the AOA's ABO were a legitimate program of board certification of advanced competency in a specialty, which it is not, it still would not do anything to ensure our access to third party plans, and it certainly won't ensure that we'll be paid fairly even when we are given access.

So, you may be asking, does it really matter? Yes, it does. Here's why. The AOA is lobbying hard to have all optometric care (both vision and medical) covered within medical plans and the health care exchanges, eliminating the (increasingly unpopular) stand-alone vision care plans like VSP and EyeMed. The AOA refers to this as integrated eye care. While this seems a laudible goal at first blush, without first having any-willing-provider and reimbursement parity laws in place, a move like that could, potentially, and in literally a moment's time, take virtually all our patients out of our private offices and move them into an ophthalmologist's office, where their care will be covered by their medical insurance plan, or reduce our reimbursement to rates even below what today's vision care plans are paying. We cannot risk having all our patient's eye care covered by their medical plans if there is no assurance we can be on their plans, bill their plans, and be paid fairly!

So, what do we do? Every optometrist needs to let the AOA know, whether you are an AOA member or not, that you want the AOA to pursue any-willing-provider and reimbursement parity laws as its number one priority. And tell two of your colleagues to do the same thing. Let's not worry about VSP, or the ABO, or 3D vision for now. The current President of the AOA is Dr. Ron Hopping and his email address is This email address is being protected from spambots. You need JavaScript enabled to view it. . Email him and let him know you're concerned. If you're an AOA member, let him know you'll stay a member if the AOA commits itself to pursuing any willing provider and reimbursement parity laws. If you're not an AOA member, let him know you'll join and support the AOA when it commits itself to this pursuit.

The time is now. Let's join together, protect our profession from the unintended consequences of acting before the laws we need are in place, and force open the doors to those third party plans so that today's optometrists can be all they can be.

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* Click here to read the full text of the Harkin Amendment.