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IJ Files Suit Against Short-Sighted Indiana Law

By Joshua Windham

States across the country are embracing telemedicine as a safe and effective means of expanding access to health care. In 2016, Indiana attempted to join the movement when it passed a law legalizing telemedicine in virtually all settings. There was just one problem. Despite the state’s broadly encouraging approach to telemedicine, the law banned doctors from using it to prescribe three specific things: opioids, abortion-inducing drugs, and eyeglasses.

Opioids and abortion-inducing drugs present unique concerns and are common exceptions to these laws. But how did glasses end up on Indiana’s blacklist?

The story starts in 2014, when technology company Visibly (then called Opternative) launched the world’s first online vision test. The idea was simple: Customers could use their smartphones and computers to take a vision test from home and have their results sent to a licensed ophthalmologist (a medical doctor), who would then decide whether to write a prescription for new lenses. This technology was not only simple and convenient—it was effective. Since launching, Visibly has received an overwhelmingly positive response and now successfully operates in 39 states.

Visibly even did so in Indiana—for a time. Starting in 2015, doctors used Visibly to provide quicker, easier access to corrective lens prescriptions to dozens of satisfied Hoosiers. But that all came to a halt in 2016 with the enactment of Indiana’s telemedicine law, which was corrupted by the one group Visibly’s technology does not benefit: traditional optometrists.

Unlike ophthalmologists, optometrists are not medical doctors. They can, however, write vision prescriptions, and they make most of their money selling expensive eyeglass frames for those prescriptions in their brick-and-mortar offices. Visibly’s technology, which is specifically designed to spare customers from having to leave home for routine vision tests, makes that model obsolete. So naturally, when Indiana’s telemedicine law was first proposed, optometrists vigorously opposed it until language was added banning the use of Visibly’s technology.

The bizarre result is that Indiana doctors are now permitted to write prescriptions for virtually all medical devices and substances as long as they meet the standard of care in their areas of practice—but they could be penalized and even lose their license if they use Visibly to prescribe corrective lenses.

There is no health or safety justification for this carve-out. Visibly, like all other telehealth technologies, is just a tool doctors can incorporate (or not) into their practices. Ophthalmologists across the country have decided to use that tool, consistent with the standard of care in their field, to make life easier for patients. There is no reason why they cannot be trusted to do so in Indiana, too.

But banning doctors from using Visibly’s technology was never meant to protect patients. In 2016, Visibly teamed up with IJ to challenge a similar ban in South Carolina that was also pushed by brick-and-mortar optometrists. Although that lawsuit is ongoing, internal documents from the optometry lobby reveal a nationwide campaign designed to shut down Visibly for one reason only: to protect optometrists’ bottom lines.

Now, Visibly and IJ are taking the fight for economic liberty to Indiana. The state constitution protects innovators’ right to earn an honest living and forbids legislators from handing out special protections to favored business groups. Visibly’s lawsuit, which challenges Indiana’s protectionist ban on its technology, simply asks Indiana courts to stand up for these principles. Because at the end of the day, it’s doctors and patients—not lawmakers or special interest groups—who should be deciding which new technologies to adopt.

Joshua Windham is an IJ attorney.

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