Telehealth News

Lawsuit Challenges Indiana’s Ban on Telemedicine for Eye Exams

A Chicago-based telehealth company that offers direct-to-consumer online eye exams is suing Indiana over its ban on the use of telemedicine for those exams. This isn't the first court battle over ocular telehealth.

Source: ThinkStock

By Eric Wicklund

- A Chicago-based telehealth company is challenging Indiana’s ban on the use of telemedicine for eye exams.

Visibly, formerly known as Opternative, filed suit this week in Marion Superior Court, challenging the state’s ban on healthcare providers using online vision tests as a basis for prescribing contact lenses or glasses. The Institute for Justice, a Libertarian law firm, is representing the company.

“This case is about a simple choice between new technologies that expand access to care and protectionist legislation designed to boost the profits of established businesses,” IJ Attorney Joshua Windham said in a press release. “Patients and doctors - not the government - should be in charge of managing their own health care decisions.”

Indiana is one of roughly 11 states to ban the use of connected care technologies for eye exams.

This isn’t Visibly’s first challenge of state telehealth laws. In 2016 the company filed suit against South Carolina’s newly enacted Eye Care Consumer Protection Law, which 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.

In 2018, U.S. District Court Judge DeAndrea Gist Benjamin threw out the lawsuit, saying the company did not have standing – specifically, the company hadn’t suffered an injury as a result of the law. Visibly and IJ have appealed that decision.

The judge’s ruling was hailed by the American Optometric Association, a longtime critic of online eye exams.

“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.”

Visibly – which claims to operate in 39 states – has its supporters. In 2018 the Federal Trade Commission sent a letter to South Carolina State Rep. Paul Graves signaling the agency’s opposition to the state’s ocular telehealth restrictions.

The FTC argued that the proposed bill would unfairly restrict the consumer’s ability to access eye care services and raise the cost of eyeglasses and contact lenses. It would also, the agency said, mandate a comprehensive eye exam regardless of whether one is needed, and “could override the judgment of a vision care provider who otherwise would have concluded that the standard of care could be met with more limited services, either in-person, or if allowed, by telehealth.”

“By requiring an in-person, comprehensive eye examination for all corrective lens prescriptions, the Bill would restrict the use of innovative telehealth eye care technologies, and also could require examinations that are more extensive and costly than necessary,” the FTC said.

The Indiana lawsuit takes the fight to a new venue.

Indiana’s telemedicine law, enacted in 2016, includes language preventing providers from using connected care technologies as a basis for prescribing corrective lenses.

“The true reason for Indiana’s corrective lens exception is that certain optometrists - who make most of their money selling expensive eyeglass frames in their offices - lobbied for the law to protect their outdated business model from competition,” the IJ argued in a post on its website. “Indeed, both national and local optometric groups vigorously opposed the telemedicine law until lawmakers added ‘language, championed by the Indiana Optometric Association,’ which ‘prohibit[s] ophthalmic devices from being prescribed by purely electronic means.’ The result, according to the optometrists, was that ‘[companies] using these online app-based technologies, such as Opternative’ (now Visibly), would be unable to operate in Indiana.”

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