Lawsuit challenges Indiana ban on getting eye exams, glasses online

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In Indiana, you can use a smart phone or computer to ask a doctor on the other side of town about a rash, a swollen limb, a gash or dozens of other ailments. And the doctor can prescribe treatments and medicines without seeing you in person.

But one thing you still can’t do in Indiana: take a vision test online and get a prescription for glasses—something 39 other states allow.

Now, a Chicago-based telehealth company that offers online eye exams is suing Indiana to get that ban overturned.

Visibly, formerly known as Opternative, has filed a lawsuit in Marion County Superior Court, challenging the state’s ban on doctors using online vision tests to issue prescriptions for corrective lenses.

The suit takes issue with a sweeping telehealth law passed by the Indiana General Assembly in 2016 and signed into law by then-Gov. Mike Pence. The law allows doctors to examine patients and prescribe treatments and drugs, but notably carved out exception for a few categories: abortion drugs, most opioids and any “ophthalmic device,” including glasses, contact lenses or low-vision devices.

The company says vision tests and eye prescriptions are nothing like abortion drugs or opioids, and were added to the ban under pressure from optometrists and the eyeglasses industry. Joining in the lawsuit is the Institute for Justice, a public-interest law firm.

“The purpose of this ban on Visibly’s technology is not to protect the public health or safety,” the 25-page complaint says. “Indeed, Indiana’s telemedicine law recognizes that, in principle, telemedicine offers a safe and effective means of expanding access to care. The purpose of banning Visibly’s technology, rather, is to protect brick-and-mortar optometrists from competition.”

The lawsuit says the ban on online eye exams is unconstitutional, and imposes “arbitrary, irrational and protectionist restrictions on the right to earn an honest living.” It adds that the Indiana Constitution forbids the legislature from granting exclusive or special privileges to some groups but not to others.

In response, the Indiana Optometric Association, said the available technology is not suitable for diagnosing eye issues.

"Optometrists in Indiana are very supportive of technology. We'd be more than happy to have anyone come into any of our offices and take a look at the amount of technology we have," said Dr. Chris Browning, an optometrist at VisionQuest Eyecare in Greenwood and president of the association. "We completely embrace technology."

But he said the online technology "is not up to par" for diagnosing eyesight and eye diseases. "We want to make sure that people in Indiana are receiving good quality care, and right now, technology is just not up to the point where you can do that (online)," he said.

Named as defendants are the Medical Licensing Board of Indiana, Indiana Attorney General Curtis Hill and state Director of the Consumer Protection Division Betsy Dinardi.

The plaintiffs say that Indiana’s law was originally intended to expand access to care, especially for patients in rural areas or who could least afford to travel to a doctor’s office. It would allow doctors to use new technologies to examine patients remotely and prescribe treatments and drugs.

Traditionally, the only way for a patient to obtain a prescription for new glasses or contact lenses was to physically travel to an eye doctor’s office to take an eye test. During that test, the patient typically sits in a chair and views various images through a lens-switching device called a phoropter. The doctor uses the patient’s responses to question to determine their eye’s “refractive error,” and make an appropriate corrective-lens prescription, the lawsuit said.

But Visibly, founded in 2012 by an optometrist names Steven Lee, said it has developed technology that allows patients to use the same principles  (reporting responses to images shown on a screen) into a test that anyone can take over the internet.

“All you need is 10 feet of space, a computer and a smartphone,” Visibly’s website says. “You will be guided through the test which take five minutes to complete.”

The company charges $35 for an online test and prescription for glasses or contact lenses.

In 2016, Visibly filed suit against South Carolina’s new Eye Care Consumer Protection Law, which ruled out telemedicine-based exams. A federal judge later threw out the case, saying that the company hadn’t suffered an injury as a result of the law, according to mHealth Intelligence, an online news site that specializes in telemedicine issues.

The judge’s ruling was hailed by the American Optometric Association, which the newsletter described as a “longtime critic of online eye exams.”

“In-person, comprehensive eye exams are the gold standard when it comes to protecting and preserving patients’ eye and vision health,” said Dr. Christopher Quinn, the association’s president.

Visibly and the Institute for Justice have appealed that decision.

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