Ocular Telehealth Battle Heats Up With New Group, Lawsuit Appeal

March 02, 2018 - Supporters of ocular telehealth are marshalling their forces for battle in the handful of states where the use of telemedicine platforms for eye exams is prohibited.

They recently announced the launch of Americans for Vision Care Innovation, a collection of more than a dozen advocacy groups, research organizations and online eye care vendors formed to “encourage states to adopt legislation allowing vision care telehealth services, including online vision testing and online prescription renewal for glasses and contact lens wearers, and to end restrictions on such services where they exist … (and to)  fight against legislation that would roll back access to online vision care services in the states where it is currently allowed.”

Among the new group’s members is Opternative, the Chicago-based developer of an app for online eye exams that operates in dozens of states. Last month, the company announced plans to appeal a judge’s dismissal of its lawsuit against South Carolina’s 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.

Opternative and the Institute for Justice, a Libertarian law firm representing the company, had sued the South Carolina Board of Medical Examiners and the State Department of Labor, Licensing & Regulation, arguing the law, passed in 2016, “is protectionist legislation and unconstitutional.” 

But this January, U.S. District Court Judge DeAndrea Gist Benjamin tossed out the suit, saying Opternative does not have standing. Her ruling didn’t address the constitutionality of the law, which will be the focus of the appeal.

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“No one has to change their behavior in order to comply with an unconstitutional law,” Robert McNamara, a senior attorney at the law firm, said in a press release. “We are continuing this fight until we vindicate the basic principle that states cannot use public power to protect private businesses. Patients and doctors, not state legislators, should be managing their own healthcare decisions, and we are determined to put that power back in their hands.”

Georgia is one of 12 states that currently prohibit the use of telehealth or telemedicine in eye exams. The others are Arkansas, Delaware, Indiana, Louisiana, Maryland, Michigan, New Jersey, Oklahoma, South Carolina, West Virginia and the District of Columbia.

In Connecticut, lawmakers passed a bill in 2017 that promotes online vision testing, but only after an initial-in-person exam and first prescription renewal are completed. The legislation was hailed by both sides as a good compromise.

"We applaud legislators for recognizing that technology has not progressed to the point needed to bypass a vision examination involving a licensed optometrist or ophthalmologist," Brian Lynch, legislative chairman of the Connecticut Association of Optometrists, told the Hartford Courant following the state senate’s vote.

In Pennsylvania, a bill establishing telemedicine guidelines for insurance coverage had included language that would have prevented the use of “an automated computer program used to diagnose or treat ocular or refractive conditions.” But that language was taken out of the bill, which now awaits a vote in the state Senate.

At least two other states are considering restrictions.

In Kentucky, House Bill 191 would require a “real-time” eye exam from an ophthalmologist or optometrist before a prescription for glasses or contact lenses could be produced.

In a letter to the Lexington Herald Leader, Carl Baker, MD, president of the Kentucky Academy of Eye Physicians and Surgeons, expressed “grave concerns” about the bill, saying it would “limit individual freedom, free trade and patient access to eye care,” especially for the more than 40 percent of Kentucky resident living in rural areas and the 874,000 residents with disabilities.

In Washington, state legislators are also considering a bill that would, if passed, require optometrists and ophthalmologists to conduct eye exams in person before issuing prescriptions for contact lenses or glasses.

That bill, SB 5411, offered a strong defense of the restrictions.

“The legislature recognizes that health care consumers, including eye health care consumers, can benefit from developments in technology that offer advantages such as increased convenience or increased speed in delivery of services,” the bill reads. “However, the legislature also recognizes that such consumers can be misled or harmed by the use of developments in technology that are not properly supervised by competent health care providers.”  

It argues that practitioners using telemedicine are separated from their patients and are therefore no able to ensure that important data is collected properly or accurately. It further argues that a telehealth platform might not be able to catch serious eye health issues that a comprehensive, in-person exam would detect.

“Therefore, the legislature has concluded it is imperative that consumers be protected from improper or unsupervised use of technology for purposes of obtaining a prescription for corrective lenses or obtaining any other diagnosis or assistance, without unduly restricting the development and implementation of technology that can provide genuine benefits to consumers,” the bill states.

The bill drew a sharp response from the Federal Trade Commission. In an 11-page letter to state officials, the FTC argued that it 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 added.

The American Optometric Association is among a handful of groups that have come out in support of restricting online vision 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 following the FTC’s announcment. “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.”

Aside from Opternative, Americans for Vision Care Innovation consists of Americans for Tax Reform, the Center for Freedom and Prosperity, Citizen Outreach, Consumer Action, Lens.com, the League of United Latin American Citizens, the National Hispanic Medical Association, the National Taxpayers Union, the Progressive Policy Institute, the R Street Institute, Smart Vision Labs and 1-800 Contacts.

“Online vision care services have the potential to produce significant savings for taxpayers,” Pete Sepp, President of National Taxpayers Union, said in a press release. “State and federal governments pay millions of dollars annually for eye care services for government employees and for Americans who receive benefits under government-funded health insurance and other programs. These costs can be substantially reduced if covered individuals have access to online vision care.”