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Judge Tosses Challenge to South Carolina’s Ocular Telehealth Ban

A judge has dismissed Opternative's suit against South Carolina's Eye Care Consumer Protection Law, which specifically bans ocular telehealth. Several states are mulling legislation on telemedicine for eye exams.

Source: ThinkStock

By Eric Wicklund

- South Carolina’s law prohibiting telemedicine-based eye exams will remain on the books, following the dismissal of a lawsuit brought by Opternative.

U.S. District Court Judge DeAndrea Gist Benjamin has thrown out a lawsuit filed on behalf of the Chicago-based developer of an app for online eye exams, saying the company does not have standing – specifically, the company hasn’t suffered an injury as a result of the law.  

Opternative and The Institute for Justice, a Libertarian law firm representing the company, said they will appeal the judge’s ruling.

“This law was designed to put Opternative out of business in South Carolina, and it worked,” Attorney Joshua Windham said in a press release. “That is an injury, and that means South Carolina courts have to hear Opternative’s constitutional arguments.”

South Carolina’s Eye Care Consumer Protection Law, passed in 2016, states that a prescription for glasses or contact lenses can’t be based “solely on the refractive eye error of the human eye or be generated by a kiosk,” essentially ruling out telemedicine-based eye exams.

Then-Governor Nikki Haley vetoed the bill, calling it “the leading edge of protectionism,” but both the Senate and House overrode the veto.

Opternative and the Institute for Justice sued the South Carolina Board of Medical Examiners and the State Department of Labor, Licensing & Regulation, arguing the law “is protectionist legislation and unconstitutional.” Judge Benjamin’s ruling doesn’t address the constitutionality of the law, only that Opternative doesn’t have standing to challenge it.

The judge’s decision is the latest salvo in an ongoing battle over the reliability of ocular telehealth, which pits telehealth vendors like Warby Parker, Simple Contacts, 1-800-CONTACTS and Opternative and advocates against medical boards and physician groups who say the technology isn’t accurate enough to replace in-person eye exams.

Among those supporting the judge's decision is the American Optometric Association.

“This ruling puts the health and safety of patients ahead of the for-profit business interests of Opternative,” Barbara L. Horn, OD, the AOA's vice president and a practicing doctor in Myrtle Beach, S.C., said in a press release. “The court’s determination reinforces the critical role of family eye doctors serving communities across the state and demonstrates that supporters of the Eye Care Consumer Protection Law are working to protect the wellbeing of patients.”

“In-person, comprehensive eye exams are the gold standard when it comes to protecting and preserving patients’ eye and vision health,” added Christopher J. Quinn, OD, the AOA's president. “AOA, SCOPA and doctors of optometry across the country will continue to advocate for our patients and their health.”

Several states are contemplating or have recently passed legislation targeting ocular telehealth, including Georgia, Indiana, Michigan, Oklahoma and West Virginia.

In Pennsylvania, Senate Bill 780, now before the Banking and Insurance Committee, would prohibit “an automated computer program used to diagnose or treat ocular or refractive conditions.” The bill has drawn comments from both sides, and an official with one national contact lens vendor recently told mHealthIntelligence.com the bill will likely be amended to be more telehealth-friendly before a final vote.

In Rhode Island, two bills calling for an in-person eye exam before any use of telehealth were scuttled for further review last year, while Connecticut legislators passed restrictive legislation. In Indiana, a bill now before the Legislature would remove restrictions placed on ocular telehealth that were included in a bill passed in 2016.

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