Matt Powers
Matt Powers · April 11, 2019

Arlington, Va.—Can the government restrict access to innovative health care technology in order to prop up an outdated business model? A new lawsuit filed yesterday in Marion Superior Court seeks to answer that question. The lawsuit, filed by health care technology company Visibly and the Institute for Justice (IJ), challenges Indiana’s ban on doctors using online vision tests to issue new corrective lens prescriptions. Visibly previously partnered with IJ to challenge a similar ban in South Carolina in October 2016.

Visibly (previously known as Opternative) is a Chicago-based company that offers customers a way to obtain a new prescription for glasses or contacts from the comfort of their own homes. A patient takes Visibly’s eye test using a smartphone and computer screen, and answers a medical history questionnaire. An ophthalmologist then reviews the patient’s responses to determine whether a prescription is needed and if so, writes one.

Operating in 39 states, Visibly’s technology enables doctors to provide faster, better services to more people—but not in Indiana. In 2016, the state passed a telemedicine law allowing doctors in virtually all contexts to use technology to examine patients and then write appropriate prescriptions. There are just three exceptions: opioids, abortion-inducing drugs and glasses. But glasses are nothing like opioids or abortion-inducing drugs, nor do they present anything close to the same concerns.

“We’re suing the state of Indiana to protect patients’ right to accessible and affordable eye care services,” says CEO of Visibly, Brent Rasmussen. “Doctors should be able to use Visibly’s innovative technology to help patients in Indiana see clearly.”

States across the country are embracing telemedicine as a safe and effective means of empowering doctors to use technology to expand access to care beyond a physical office setting. Indiana’s telemedicine law was originally intended to do just that. However, established optometrists in Indiana—who make most of their money selling expensive eyeglass frames in their brick-and-mortar offices—saw the law as a threat to their profit margins.

Throughout the legislative process, local and national optometric groups vigorously opposed the law until a special corrective lens exception was added. Under the exception, doctors are banned from using online 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 case is about a simple choice between new technologies that expand access to care and protectionist legislation designed to boost the profits of established businesses,” said IJ Attorney Joshua Windham. “Patients and doctors—not the government—should be in charge of managing their own health care decisions.”

This sort of special exception, which amounts to using government power to protect private businesses from competition, is unconstitutional. As Indiana courts have long recognized, the Indiana Constitution forbids lawmakers from imposing arbitrary and irrational restrictions on medical innovation and from handing out special privileges to favored market players. That is why Visibly is teaming up with IJ once again to ask Indiana courts to affirm those principles and strike down the state’s protectionist ban on its technology.

“State courts across the country have struck down laws that exist solely to protect established businesses from competition,” said IJ Senior Attorney Robert McNamara. “We expect Indiana’s courts to follow suit.”