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Lawsuit Challenges South Carolina’s Ban on mHealth Eye Exams

A Chicago-based developer of an mHealth app for eye exams is suing state officials for excluding its service from a list of approved telehealth platforms.

By Eric Wicklund

- The developer of an mHealth app for eye exams is suing state officials in South Carolina, where the company is banned from issuing prescriptions based on its online tests.

Chicago-based Opternative says the South Carolina Department of Labor, Licensing and Regulation and the state’s Board of Medical Examiners are interfering with the company’s “right to pursue an honest living” by excluding online eye care from its list of approved telehealth services.

“By effectively prohibiting ophthalmologists from using Opternative’s technology, South Carolina is using government power simply to protect the profit margins of favored businesses,” Robert McNamara, an attorney for The Institute of Justice, a Libertarian law firm representing Opternative, told TechCrunch. “That’s not just wrong, it’s unconstitutional.”

“Although telemedicine is actually generally legal in South Carolina … the state has a law on the books banning online eye exams specifically,” McNamara continued. “That’s not because telemedicine is more dangerous for ophthalmologists than it is for dermatologists and their patients. It’s because private businesses successfully lobbied the state legislature to keep Opternative out.”

The company offers $40 eye exams through its app, which are reviewed by ophthalmologists who then can issue prescriptions through that app. The company states clearly that its service should not be seen as a substitute for a full eye exam, and recommends that the user have an in-person exam every two years.

Opternative currently operates in 39 states, but has clashed with officials in seven other states over the concept of issuing prescriptions based on an online eye exam. They include Georgia and Indiana, both of which have laws on the books that ban prescriptions based on online eye tests.

The American Optometric Association has also come out against telehealth platforms like Opternative’s, arguing that online tests aren’t accurate enough and might miss health problems like diabetes. The AOA has even gone so far as to lobby the U.S. Food and Drug Administration to take action against the company.

In South Carolina, legislators passed the Eye Care Consumer Protection Law, which requires that eye doctors conduct in-person exams before issuing prescriptions for eyeglasses or contact lenses. Gov. Nikki Haley vetoed the bill, saying it “uses health practice mandates to stifle competition for the benefit of a single industry,” but her veto was overturned this past May.

“It is a business to them, and that’s the way they’re looking at it,” Michael Campbell, president of the South Carolina Optometric Physicians Association’s board of director, told the Chicago Tribune shortly after the veto. “We care about the patient, trying to get those prescriptions right and trying to figure out why those prescriptions change from a health standpoint.”

The conflict is similar to the debate in Texas and some other states over phone-based telehealth. A long-standing feud heading to trial in Texas pits Teladoc against the Texas Medical Board, which has sought to mandate that first-time encounters between a doctor and patient take place face-to-face (which includes video but not phone-based or online visits) before a doctor can issue a prescription.

Teladoc has sued the state medical board, saying its efforts to restrict telehealth unduly interfere with the company’s right to conduct business in the state.

While the two issues – and others like it – focus on a company’s right to do business, they also point to the large issue of defining the doctor-patient relationship. Telehealth advocates argue that a doctor and patient can establish a working relationship online, but opponents have long argued such a relationship should begin in person.

That debate bogged down the American Medical Association for almost three years before it was able to come to a consensus on guidelines for the ethical practice of telehealth

Dig Deeper:

mHealth’s Benefits Are Coming into Focus for Eye Doctors

Is Telehealth Redefining the ‘Doctor-Patient Relationship’?

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