Online Eye-Test Company Sues S.C. Over Licensing Law

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By Matthew Loughran

Nov. 2 — Opternative Inc., a Chicago-based company that offers online refractive eye exams, challenged a South Carolina law that forbids the use of automated eye tests for renewing corrective lens prescriptions ( Opternative, Inc. v. S.C. Bd. of Med. Exam’rs , S.C. Ct. Com. Pl., No. 2016CP4006276, filed 10/20/16 ).

The complaint alleges that the statute violates the state constitution’s prohibition on laws that only serve the purpose of economic protectionism. Additionally, the law violates the equal protection guarantee of the state’s constitution, the company argued in the complaint, which was brought in the South Carolina Court of Common Pleas, Richland County.

The South Carolina Eye Care Consumer Protection Law was passed by the legislature, overriding a veto by Gov. Nikki Haley (R), who wrote at the time that the law used “health practice mandates to stifle competition for the benefit of a single industry.” It also comes at a time when many states are struggling with how to harness the power of telemedicine without sacrificing patient safety.

“It is just pure economic protectionism that is the motivation behind this law,” Opternative CEO and co-founder Aaron Dallek told Bloomberg BNA. “The governor saw that and said so in her veto letter,” he added.

The South Carolina Department of Labor, Licensing and Regulation, the agency which enforces the Eye Care Consumer Protection Law declined Bloomberg BNA’s requests for comment, citing a policy against commenting on pending litigation.

Refractive Data Collection

The law forbids an ophthalmologist from using only collected refractive data from an automated source or kiosk when writing a prescription. That prohibition effectively outlaws Opternative’s online eye test which uses a patient’s home computer to display various images involved in a standard eye test and records the patient’s responses to those images. The responses are then sent to a licensed ophthalmologist who uses that information to write a prescription.

According to Dallek, the test is not meant to take the place of a comprehensive eye exam, which could have important medical effects. “We want all of our patients to get an in-person comprehensive eye exam as frequently as recommended by the American Academy of Ophthalmology,” he said. “In fact, we do not allow our patients to use Opternative's prescription service more than four times in a row without receiving a comprehensive eye exam,” he added.

The suit is another example in a growing wave of telehealth providers pushing back against restrictive state laws and rules, Nathanial Lacktman of Foley & Lardner in Tampa, Fla., told Bloomberg BNA.

“I respect the efforts of telehealth companies like Opternative to continue to advocate for patient’s rights to enjoy convenient, accessible healthcare,” he said. “Ideally, state laws and regulations should strike the right balance between ensuring patient safety and promoting innovation and efficiencies in the way health-care is delivered,” he added.

The suit was brought on behalf of Opternative by the Institute for Justice in Arlington, Va., and Nelson Mullins Riley & Scarborough LLP in Columbia, S.C.

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at PSturges@bna.com

For More Information

The complaint is at http://src.bna.com/jM0.

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