Opternative sues South Carolina, says eye exam law is unconstitutional

By Jonah Comstock
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(Updated with a statement from the American Optometric Association)

Opternative, a Chicago-based digital health company that offers an online refractive eye exam service that helps consumers get prescriptions for glasses or s, has teamed up with the Institute of Justice to sue the state of South Carolina, alleging that a new law restricting online eye exams is anticompetitive and unconstitutional.

“We’re suing the state of South Carolina to protect patients’ right to accessible and affordable eye care services,” CEO and cofounder of Opternative Aaron Dallek said in a statement. “Doctors should be able to use Opternative’s innovative telehealth technology to help patients in South Carolina see clearly.”

The American Optometric Association, which supports the legislation, argues that Opternative's technology isn't safe for patients, as it leads them to skip eye appointments that could catch serious conditions.

“Illinois-based Opternative and its legal arm, ‘The Institute for Justice,’ are not concerned about the health care needs of the people of South Carolina,” Barbara L. Horn, OD, AOA secretary-treasurer and doctor of optometry in Conway, South Carolina, said in a statement emailed to Babyforyou.net.ua. “Having lost decisively in our state capital and still lacking any credible research or federal medical device approvals, they’ve come back to try to impose their profit- driven approach to health care on South Carolina. Their questionable legal tactics that will cost the citizens of our state time and money – resources better invested in protecting the health of our patients. South Carolinians deserve better, and my fellow doctors and I, patients and public health experts across the state will continue to speak out and expose their schemes.”

The law in question has already received national scrutiny when it was vetoed by Governor Nikki Haley -- and then the veto was overturned by the legislature. Opternative seized on the governor's remarks and has included them in the text of the suit.

“I am vetoing this bill because it uses health practice mandates to stifle competition for the benefit of a single industry, effectively banning eye care kiosks statewide,” Haley said in written remarks at the time. “During my administration, South Carolina has expanded access to healthcare, including mental health services, to rural and underserved regions of our state using telemedicine. Unfortunately, a small group of eye care professionals is seeking to block new technologies that expand low-cost access to vision correction services.”

Although this lawsuit is challenging the law's constitutionality under the South Carolina state constitution, rather than the U.S. Constitution, it still bears some similarities to the ongoing antitrust case being leveled against the Texas Medical Board by telemedicine company Teladoc. Both cases are empowered by the precedent set by a recent unanimous Supreme Court ruling that sided with teeth-whitening services against the North Carolina Dental Boardand both are concerned with alleged anticompetitive legislation against telemedicine technology under the guise of patient safety concerns.

However, in South Carolina's case it is not a medical board rule that's being challenged but a state law. Because the state legislature has antitrust immunity, the IJ is instead alleging that Opternative's due process and right to equal treatment under law have been violated.

“This case presents a simple choice between new technologies that expand access to care and protectionist legislation to preserve the profits of established businesses,” IJ Senior Attorney Robert McNamara said in a statement. “Patients and their doctors should be in charge of managing their own healthcare decisions, not the South Carolina General Assembly.”

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