Regulation

Eye Doctor Law Puts South Carolina ‘on the Leading Edge of Protectionism’

State faces lawsuit over new rule requiring in-person visits to refill prescriptions for eyeglasses and contact lenses.

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Institute For Justice

South Carolina regulators will have to go to court to defend a new law prohibiting eye doctors from issuing prescriptions over the Internet.

Even though "telemedicine"—a catch-all term for letting doctors exam patients and issue prescriptions remotely—is generally legal in South Carolina, the state legislature caved to pressure from lobbyists for eye doctors and voted to ban optometrists from prescribing eyeglasses or contact lenses on the basis of online exams. Instead, patients must make an in-person visit to get a prescription.

The law forced Chicago-based Opternaitve, Inc., which tests patients' eyesight with a series of charts that be accessed with a smartphone or computer, out of South Carolina. Now, the company is suing the state's Board of Medical Examiners and the South Carolina Department of Licensing, Labor and Regulation to get the law overturned.

"We're suing the state of South Carolina to protect patients' right to accessible and affordable eye care services," says CEO and co-founder of Opternative, Aaron Dallek. "Doctors should be able to use Opternative's innovative telehealth technology to help patients in South Carolina see clearly."

The Institute for Justice, a libertarian law firm that successfully has challenged similar anti-competitive regulations in other states, is representing Dallek. The lawsuit was filed Thursday in the South Carolina Court of Common Pleas.

The American Academy of Ophthalmology recommends eye exams once every five to 10 years, but prescriptions for eyeglasses and contact lenses usually expire after a year or two. Opternative, which launched in 2015, offers to save patients time by reissuing prescriptions without requiring a trip to the doctors' office.

The American Optometric Association has responded to the rise of businesses like Opternative by pushing for state level bans on online eye exams.

After South Carolina passed the bill, Gov. Nikki Haley issued a veto. She said the measure put South Carolina "on the leading edge of protectionism, not innovation." The state legislature overrode her veto in June, a move that was praised by the American Optometric Association for ensuring high quality health care.

It's really all about the money. Last year, Americans spent more than $34 billion on glasses and contact lenses, and optometrists are trying to protect their own bottom lines by limiting who is allowed to make those sales.

The lawsuit calls the law a "purely protectionist piece of legislation," and says it stands in "stark contrast" to the state's regulations for other forms of telemedicine.

If there is an advantage to getting your prescription in-person at a optometrist's office, then those doctors should make that case to their patients. They shouldn't use lobbyists to bring the power of the state down on their competition.

"State courts across the country have struck down laws that protect established businesses from competition," says Joshua Windham, at attorney for IJ. "We expect South Carolina's courts to follow suit."

The case has some similarities to another lawsuit working its way through federal court in Texas. That case is challenging the Texas Medical Board's rules requiring doctors to meet with patients in person. The plaintiff, Teladoc, provides medical consultations over the phone and online, but has been ordered by the board to shut down.

Teladoc claims the Texas Medical Board's rules are anticompetitive and illegal because the board acts independent of state oversight. The U.S. Department of Justice and the Federal Trade Commission have entered the lawsuit in support of Teladoc.

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19 responses to “Eye Doctor Law Puts South Carolina ‘on the Leading Edge of Protectionism’

  1. …CEO and co-founder of Opternative, Aaron Dallek.

    THIS. LAW. MUST. BE. EXTERRRMINATED!!!!

    EXTERMINATE!!! EXTERMINATE!!!!! EXTERRRRMINNATE!!!!!!

    1. +1 Doctor Whom

  2. OT: Obama says ObamaCare not responsible for rising health care costs!

    https://www.youtube.com/watch?v=iRY_aeTXoJE

    We can still keep our doctor and healthcare plans, and our premiums aren’t going to go up either!

    1. Markut fellyure

  3. What, no mention of the fact that the Optometric profession is being overfilled by orders of magnitude? Market forces alone are going to bring Optometrists income down over the coming ten years regardless of what protectionism claptrap they pull.

    Not to disparage O.D.’s, my father is one, but he’s going to retire in the next few years either way and readily admits that O.D. schools are cranking out graduates at a far higher rate than what’s actually needed. I guess this nonsense was inevitable.

    1. Market forces alone are going to bring Optometrists income down over the coming ten years regardless of what protectionism claptrap they pull.

      Not as long as we have a third party payer system that reduces incentives to shop around. I will admit that I don’t. I just go to someplace that takes my insurance.

      Market forces don’t work very well when the person receiving the services is not paying out of their own pocket.

      And even if the price of the exams goes down, most of the cost is in the frames and the lenses anyway. So it won’t have much of an effect on the bottom line.

    2. What are your criteria for the number of graduates that are “needed?” One could just as easily argue that the graduation rate is still too low because optometrists earn “too much” and prices for exams are “too high.”

  4. The American Academy of Ophthalmology recommends eye exams once every five to 10 years, but prescriptions for eyeglasses and contact lenses usually expire after a year or two.

    I wear the hell out of my disposable contact lenses. I think I’m supposed to ditch them after a couple weeks. WRONG. I get half a year out of them. BOOM. That’s me sticking it to the man. And I don’t even need contacts. I only wear them to correct for the prescription monocles I wear which I also don’t need.

    1. What, you don’t make your orphan slaves steal daily contact lenses for you?

    2. They’re the mirrored silver contacts, right?

  5. Get your prescription ( making sure to get your PD*) and buy online.

    * In the not-so-great state of New York, the doctors are not allowed to give away your PD, so you have to measure it yourself.

  6. The suit doesn’t mention the U.S. Constitution, but is based on this from the state constitution: “The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

    As interpreted – quite plausibly – in the lawsuit, this protects the “right to pursue an honest living free from arbitrary, irrational, and protectionist regulation.”

    This is what the *federal* Privileges and Immunities Clause means, but the U.S. Supreme Court cut and ran when faced with the responsibility of enforcing it. Maybe the South Carolina courts won’t make the same abdication of responsibility with the state constitution.

    Also, is Rand going to weigh in on this?

    1. Maybe the South Carolina courts won’t make the same abdication of responsibility with the state constitution.

      Doubt it. Checks and balances have been replaced by deference.

  7. Your local eye doctor is a special interest. Of course, politicians don’t have the guts to admit this, thinking that only the big guys can be special interests.

    Seriously, everybody is part of multiple special interests. Family farmers. Big exporters. Teachers’ unions. Volunteer firefighters. The chess players who want chess in the schools. And on and on and on. There’s nothing wrong with being part of a special interest.

    1. There’s nothing wrong with being part of a special interest.

      True; what is wrong is using the State’s power to further your special interests.

      “As long as it is admitted that the law may be diverted from its true purpose ? that it may violate property instead of protecting it ? then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.”

      — Bastiat “The Law”

  8. Why not? Solicitor Chrissy Adams put the state on the map as primo protector of Seneca troopers filmed deliberately murdering a teenager by shooting him in the back in a botched victimless bullshit entrapment racket. Protection rackets been berry berry good to the looters those yokels were tricked into electing!

  9. Look, there has to be cronyism, protectionism, and favoritism, for the children!

  10. Cronies gonna crony.

    And is it too much to ask that you fix the spelling and grammar errors before you publish the article?

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