Healthcare technology company Visibly (previously known as Opternative) offers a simple promise: Get a prescription for new glasses or contacts from the comfort of your own home. In most states across the country, Visibly’s innovative technology allows doctors to provide faster and better service to more people by using computers and smartphones to conduct the kind of routine vision test commonly used to determine most eyeglass prescriptions—but not in Indiana. In 2016, the state passed a telemedicine law that allows doctors in virtually all contexts to use technology to write prescriptions for patients who need them, but specifically bans them from using technology to prescribe corrective lenses.
The 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 incorporate new technologies into their practices and assist with prescribing medical devices and substances, as long as they met the relevant standard of care. However, established businesses in Indiana who made most of their money selling eyeglass frames in their brick-and-mortar offices saw the law as a threat to their profit margins.
Throughout the legislative process, those established businesses made their voices heard, vigorously opposing the law until a special corrective lens exception was added. Under the exception, doctors are banned from using innovative new technologies like Visibly’s to prescribe corrective lenses—even though they could easily meet the standard of care required by the law and despite the fact that, for virtually all other Indiana doctors, telemedicine is legal and encouraged.
This sort of special exception, which amounts to using government power to protect private businesses from competition, is unconstitutional. That was why Visibly teamed up with the Institute for Justice to challenge just such a law in South Carolina in 2016 and it is why Visibly is doing so again here, asking Indiana courts to strike down the state’s protectionist ban on its technology.
Visibly: Online Eye Tests from the Comfort of Your Own Home
Steven Lee is a lifelong entrepreneur with a passion for using technological innovation to expand ordinary Americans’ access to medical care. As a licensed optometrist who conducted over 20,000 vision tests, Dr. Lee knows firsthand that such tests are needlessly time-consuming, inconvenient and expensive for patients.
Traditionally, the only way for most people to take a vision test to obtain a corrective lens prescription was to travel to a brick-and-mortar optometry or ophthalmology office. The procedure is familiar to anyone who has ever needed glasses: A patient sits in a chair and views images through a lens-switching device called a phoropter. The patient reports what they see as a doctor switches lenses to test the patient’s vision. The doctor then uses the patient’s responses to determine their “refractive error,” which is the metric used to determine the appropriate prescription.
Given advances in technology, Dr. Lee knew there must be a way to incorporate the same principle at the core of traditional vision tests (namely, a patient reporting responses to various images) into a test that anybody could take at home over the internet. He also knew there would be real patient demand for more convenient and affordable access to corrective lens prescriptions. So in 2012, Dr. Lee founded the healthcare-technology company Visibly (then called Opternative) to create such a product.
In practice, Visibly’s technology is surprisingly simple. As Dr. Lee predicted, it relies on the same self-reporting principle as traditional vision tests. The major difference is that Visibly replaces phoropters and vision charts with computers and smartphones. A patient taking Visibly’s test views images on their computer screen and uses a smartphone to record their responses. These responses, along with the patient’s answers to a series of medical-history questions, are then sent through Visibly’s secure platform to a state-licensed ophthalmologist who reviews the information and, if appropriate, writes the patient a prescription.
Even better, Visibly’s system works. A clinical trial showed that Visibly’s online vision test was as accurate as traditional tests performed in person using a phoropter. And patients reported the same level of satisfaction with prescriptions generated using Visibly’s technology as with traditional tests performed in optometry and ophthalmology offices.
Of course, comprehensive eye examinations are important and the American Academy of Ophthalmology recommends that otherwise-healthy patients who have not received one by age 40 should do so (and after that, once every few years depending on the patient’s age and risk factors). But for the majority of patients who do not need a comprehensive exam every time they would like a new prescription, Visibly’s technology saves valuable time and money, expanding access to care.
As a result, Visibly has received an overwhelmingly positive response from customers and now successfully operates in 39 states across the country—but not in Indiana.
Indiana Bans Visibly’s Technology to Protect Brick-and-Mortar Optometrists from Competition
Visibly’s technology empowers doctors to provide more convenient and affordable access to eye care for patients who need it. Indeed, Visibly was doing exactly that in Indiana—for a time. From 2015-2016, Visibly’s partnering ophthalmologists successfully wrote dozens of prescriptions for satisfied Hoosiers. That all changed in 2016, when Indiana enacted its first comprehensive telemedicine law. 1
At first blush, the law seemed promising: The law recognized that allowing doctors to incorporate new technologies into their practices, under certain conditions, was a safe and effective means of expanding access to care (especially for patients in rural areas or who could least afford to travel to a doctor’s office). Thus, the law permitted doctors to give medical advice and write prescriptions using telemedicine, as long as doing so would meet the relevant standard of care and the doctor’s ethical and professional duties.
But the law does not apply equally. Under the law, doctors are forbidden from using telemedicine to issue prescriptions for three specific items: opioids, abortifacients (abortion-inducing drugs) and corrective lenses. 2 The reason for this is not that corrective lenses are dangerous or belong in the same category as opioids and abortifacients. Nor is there any reason to think that ophthalmologists are somehow less capable of exercising their medical judgment and ensuring that using Visibly’s technology meets the standard of care in a given case.
The true reason for Indiana’s corrective lens exception is that certain optometrists—who make most of their money selling expensive eyeglass frames in their offices—lobbied for the law to protect their outdated business model from competition. Indeed, both national and local optometric groups vigorously opposed the telemedicine law until lawmakers added “language, championed by the Indiana Optometric Association,” which “prohibit[s] ophthalmic devices from being prescribed by purely electronic means.” The result, according to the optometrists, was that “[companies] using these online app-based technologies, such as Opternative” (now Visibly), would be unable to operate in Indiana.
This is naked economic protectionism—which is why Visibly has teamed up with the Institute for Justice to file a constitutional challenge to Indiana’s ban on its technology, standing up for both the rights of entrepreneurs to earn an honest living free from protectionist regulation, and the rights of doctors and patients to use modern technology that expands access to care.
The Indiana Constitution Protects Medical Innovators and Forbids Naked Economic Protectionism
Indiana’s corrective lens exception violates the state constitution in two ways. First, Article I, Section 23 of the Indiana Constitution forbids the legislature from granting “privileges or immunities which, upon the same terms, shall not belong equally to all citizens.” 3 In 1994, the Indiana Supreme Court examined the unique text and history of this provision and determined that it “should be given independent interpretation and application” from the federal Equal Protection Clause. 4 In a landmark decision, the court declared that a law violates Section 23 if it imposes “disparate treatment” that is not “reasonably related to inherent characteristics which distinguish the unequally treated classes.” 5 A law also violates Section 23 if it grants “preferential treatment” that is not “uniformly applicable and equally available to all persons similarly situated.” 6
The corrective lens exception fails on both counts. First, the law treats corrective lenses differently from the countless other medical devices and substances that can be prescribed under the telemedicine law, even though there is every reason to think doctors can (as they previously did in Indiana and continue to do across the country) safely prescribe corrective lenses using telemedicine. Second, the law allows some (indeed, virtually all) providers to write prescriptions using telemedicine within the standard of care, but denies that privilege to ophthalmologists who wish to write corrective lens prescriptions within their standard of care. This violates Section 23.
The law also violates Article I, Section 1 of the Indiana Constitution, which forbids the legislature from depriving anyone of “life, liberty, [or] the pursuit of happiness” without due process of law. 7 Indiana courts have long held that, under this provision, the government cannot restrict the right to earn a living unless necessary to protect the public health or safety. Banning licensed ophthalmologists from using Visibly’s technology to write corrective lens prescriptions that patients need—despite the fact that they are fully capable of doing so (and indeed, have done so dozens of times) within the standard of care—does not serve any public health or safety purpose.
Of course, comprehensive eye examinations are important and the American Academy of Ophthalmology recommends that otherwise-healthy patients who have not received one by age 40 should do so (and after that, once every few years depending on the patient’s age and health). But the corrective lens exception does not require such exams (or any other health evaluations) before a doctor writes a prescription for glasses or contacts. And in any case, Visibly’s technology is not meant to be a replacement for comprehensive exams.
The point of Visibly is that, for the majority of patients who do not need a comprehensive exam every time they would like to update or renew their prescription, taking an online vision test saves valuable time and money and expands access to care. That is good for doctors and patients—but it is bad for established businesses that make the majority of their money selling expensive eyeglass frames in their offices. And therein lies the true purpose of the corrective lens exception: not protecting patients, but preserving the profits of a favored private interest group. Under Article I, Section 1—as in states across the country—that is unconstitutional.
Advancing the Fight for Medical Freedom
This is not Visibly’s first fight against protectionist legislation. In 2016, Visibly teamed up with IJ to file a constitutional lawsuit challenging South Carolina’s similar ban (a ban also pushed by brick-and-mortar optometrists) on their technology.
Nor is this IJ’s first challenge to arbitrary or protectionist laws that stifle medical innovators and reduce access to care. Recently, IJ has filed two separate lawsuits (one in Iowa and one in North Carolina) challenging state certificate of need laws, which prevent medical providers from offering or developing new healthcare services to protect established providers from competition. IJ has also re-filed its challenge to Texas’s ban on online veterinary speech in light of the U.S. Supreme Court’s recent decision in NIFLA v. Becerra, which rejected the notion that professionals do not enjoy the protection of the First Amendment simply because they speak for a living. And in 2011, IJ prevailed at the 9th Circuit Court of Appeals in a challenge to the federal government’s ban on offering compensation for bone marrow donors.
What all of these cases have in common is an attempt to use government power to dictate private medical choices. But it is doctors and patients—not lawmakers, state bureaucrats or special interest groups—who are in the best position to decide which healthcare services are needed and under what conditions. Nowhere is that clearer than in this case. And IJ will continue to fight until courts and legislators, both in Indiana and across the country, get the message.
The Litigation Team
IJ attorneys Joshua Windham and Robert McNamara represent Visibly in the lawsuit. They are joined by local counsel Lee McNeely, Cynthia Bedrick and Scott Milkey of McNeely Stephenson.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for economic liberty. IJ has spent 27 years fighting for the right of entrepreneurs to earn an honest living free from unreasonable government interference.
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Reporting and Communications Manager
(703) 682-9320 ext. 254
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