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.


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.