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Wednesday, May 1, 2019

The Government Wants to Protect You from (Affordable) Digital Vision Tests

This law has little to do with patient safety and everything to do with protectionism.

Image Credit: Pixabay-Free-Photos | Pixabay License (

Health care is expensive—there is no doubt about it. But thankfully, advances in technology, like telemedicine, are making medical care more accessible and affordable than ever before. Whether you need to make a quick video call to your general practitioner to check on some symptoms or need to chat with a therapist, telemedicine offers affordable and quality services to patients from the comfort of their own homes.

In order to fully understand why contacts and glasses were classified in such a serious manner, one must follow the money.Over the last several years, telemedicine has also become extremely popular for patients looking to renew existing prescriptions or get issued new prescriptions for contacts and eyeglasses. And so long as you have access to a smartphone and a computer, these reliable online vision tests only take about 15-20 minutes and cost consumers as little as $35. After your test is complete, an actual optometrist looks over your results and emails a prescription to use at whatever eyeglass or contact lens vendor the consumer chooses.

However, after caving to pressure from established optometrists, some states, and specifically Indiana, have cracked down and banned patients from utilizing these types of digital online tests. Luckily, one online vision test provider is refusing to take this ban lying down and will soon be making its case in court.

All Signs Point to Optometrists

With the help of the Institute for Justice (IJ), Visibly, a digital vision test provider formerly known as Opternative announced last week that it is challenging a 2016 Indiana law that banned the use of online vision tests within the state. Signed into law by then-Governor of Indiana Mike Pence, House Bill 1263 was actually passed with the intention of empowering the burgeoning field of telemedicine. And to be sure, in many regards, it did just that.

In the years leading up to 2016, the state’s “Telehealth Pilot Program” had proved itself to be popular among residents who were eager for more convenient and affordable alternatives to costly doctor’s visits. Anxious to make telemedicine more accessible to consumers, HB 1263 altered existing laws to ensure that patients were able to be issued prescriptions from their doctors over digital platforms so long as the following conditions were met:

  • The provider has satisfied the applicable standard of care in the treatment of the patient.
  • The issuance of the prescription by the provider is within the provider’s scope of practice and certification.
  • The prescription is not for a controlled substance (defined in IC 35-48-1-9).
  • The prescription is not for an abortion-inducing drug (defined in IC 16-18-2-1.6).

This list seems reasonable enough until you get to the last condition, which states, “The prescription is not for an ophthalmic device, including: 1) glasses; 2) contact lenses; or 3) low vision devices.” To put eyewear prescriptions in the same category as abortion-inducing drugs and controlled substances like opioids seems like a bit of a stretch, even for the government.

However, as is true in many instances, in order to fully understand why contacts and glasses were classified in such a serious manner, one must follow the money. And if you look into who has the most to lose from the rise of online vision tests, all signs point to optometrists.

“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,” says IJ, which is representing Visibly.

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.

And if we pay close attention to what has happened in other states where online vision tests have been banned, IJ’s statements appear to ring true.

South Carolina Caves to Protectionism

Also in 2016, South Carolina passed its “Eye Care Consumer Protection Law,” which specified that prescriptions for contacts and glasses could not be based “solely on the refractive eye error of the human eye or be generated by a kiosk.” In layman’s terms, this banned the use of online vision tests since this is precisely what these digital tests do. In-person exams, on the other hand, do offer more services to the consumer that includes checking the overall health of the eye, but that is not the purpose of a test only intended for prescriptions.

That is not to say that consumers would not benefit from having a full-blown eye exam done in an optometrist’s office every so often, but for someone who is about to run out of contacts—since prescriptions only last for a year—or finds that their glasses need to be upgraded, these online tests suffice just fine.

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

IJ came to the aid of Visibly, then Opternative, and filed suit against the South Carolina Board of Medical Examiners and the State Department of Labor, Licensing & Regulation, on the grounds that the new law was “protectionist legislation and unconstitutional.” The lawsuit was, unfortunately, dismissed by US District Court Judge DeAndrea Gist Benjamin, who stated that Visibly did not have any legal standing since it had not yet suffered any legal injury as a result of the law.

IJ disagreed with this decision, and Attorney Joshua Windham said in a press release:

This law was designed to put Opternative out of business in South Carolina, and it worked. That is an injury, and that means South Carolina courts have to hear Opternative’s constitutional arguments.

Unsurprisingly, one group that supported the judge’s decision was the American Optometric Association (AOA). Its president, Christopher J. Quinn, OD, gave a statement after the case was dismissed, saying:

In-person, comprehensive eye exams are the gold standard when it comes to protecting and preserving patients’ eye and vision health. AOA, SCOPA and doctors of optometry across the country will continue to advocate for our patients and their health.

Barbara L. Horn, OD, the AOA’s vice president echoed this sentiment, saying, “This ruling puts the health and safety of patients ahead of the for-profit business interests of Opternative.”

This might sound like the AOA is doing its due diligence to protect consumers, but in reality, the Association’s support for this law has little to do with patient safety and everything to do with protectionism.

Even the Federal Trade Commission (FTC) saw South Carolina’s bill for the protectionist scheme it was and, in a letter to state representative Paul Graves, expressed its concerns that the new law would inhibit consumers from having access to affordable eye care and eyewear.

The letter stated:

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.

Something Smells Like Protectionism

Currently, 39 states allow for eyeglasses and contact prescriptions to be issued via telemedicine. If IJ is successful in its case, Indiana could be the 40th, but protectionism is a formidable foe to fight—just ask the ridesharing industry.

When Uber and Lyft revolutionized the taxi industry by offering rides on demand with just the tap of a smartphone screen, the taxi companies, which are dominated by powerful unions, did everything in their power to put a stop to it. Lobbying Congress and launching aggressive social media campaigns to smear ridesharing, there was almost nothing the cab companies wouldn’t do to try to destroy Uber and Lyft. Well, except one thing: innovate and compete.

Consumers should be free to make their own decisions without the government stepping in to intervene.

Consumers loved Uber and Lyft because they took hailing a cab to the next level. Instead of standing on a street corner, flailing your arms in the air trying to flag down a cabby who might very well just drive past you, the apps’ platforms saved consumers a lot of fuss and offered more safety features to riders since GPS tracking allowed them to share their location with friends should something go wrong. While cab companies could have chosen to upgrade their models and innovate in order to compete with the ridesharing industry, they chose to try to use the government to take down their “opponents.”

Taxi cartels spent loads of energy and money trying to take down the ridesharing sector and protect their own interests, and they achieved some success in local regions by getting new regulations passed on ridesharing. But they were ultimately unsuccessful in making ridesharing obsolete because there was just too much demand from consumers in favor of Uber and Lyft.

The same could be said of online vision tests, which have been so popular that Visibly recently secured a $9 million investment from a venture capital firm in spite of the bans in some states.

Dr. Steven Lee, founder and chief science officer of Visibly, said:

There are certain groups that would prefer that technology like telemedicine doesn’t take a foothold. We believe there’s a way to utilize services like Opternative that can help the industry and the patient… We believe it’s a win-win proposition for everyone.

Ultimately, just as with Uber and Lyft, consumers should be free to make their own decisions without the government stepping in to intervene at the request of private entities like the AOA. Instead of fighting technological progress that is helping to make care more accessible, we should be embracing it and celebrating the fact that patient consumers now have more options available to them.

  • Brittany is a writer for the Pacific Legal Foundation. She is a co-host of “The Way The World Works,” a Tuttle Twins podcast for families.