This article has been updated with comments from Opternative and the Virginia House of Delegates.
In stark contrast to the law that past last year in South Carolina, the state of Virginia has proactively passed a pro-telemedicine bill that protects the rights of optometrists and ophthalmologists to see patients and issue prescriptions via telemedicine.
The law, signed late last month, states that "for the purpose of a provider prescribing spectacles, eyeglasses, lenses, or contact lenses to a patient, a provider shall establish a bona fide provider-patient relationship by an examination (i) in person, (ii) through face-to-face interactive, two-way, real-time communication, or (iii) store-and-forward technologies."
“Today, the Commonwealth struck a good balance,” Virginia State Delegate Peter Farrell, one of the sponsors of the legislation, said in a statement last month. “We have signaled to entrepreneurs that their ideas and innovations are welcome in our state. As we empower doctors to utilize these new telemedicine options that will increase access to healthcare and lower costs, we have also made sure that the health and safety of our residents comes first.”
The law was the result of lobbying by telemedicine eye care companies, who have undertaken lobbying in response to local optometry and ophalmology industry groups seeking legislation to oppose them. The most prominent example of this so far is in South Carolina, where Chicago-based Opternative is currently suing the state over a law forbidding online or app-based eye exams. Opternative considers the law anti-competitive and in violation of South Carolina's constitution. The American Optometric Association, which lobbied for the legislation and opposes the suit, holds that technology like Opternative's endangers patients.
Opternative was one part of a group of ocular telemedicine companies that worked for the legislation, which also included 1800Contacts and Simple Contacts, an NYC-based startup that raised $2 million in November. It was Simple Contacts that original made MobiHealthNews aware of the bill, but Opternative told MobiHealthNews in an email that not all parties contributed equally to that effort and that "Simple Contacts never showed up for the committee hearings or spent one day on the ground lobbying in Virginia". Correction: A previous version of this story said EyeNetra was involved in lobbying for this bill. That was in error.
In a Medium post, Simple Contacts founder and CEO Joel Wishkovsky said that Virginia passed the law after being approached by industry groups about passing an anti-telemedicine law, but after meeting with telemedicine groups, ended up doing just the opposite.
"The Virginia State Legislature, when approached to pass a law that would ban our technology, decided to take a closer look," he wrote. "They spoke to dozens of medical experts and determined that what Simple Contacts and many other telemedicine platforms do is not only safe, but is good for their constituents. Last week, they passed HB 1497, a law that explicitly recognizes the potential of ocular telemedicine and sets common sense guidelines on its use to ensure only high quality care is delivered."
The law does provide a list of conditions in-person or remote eye doctors must meet. They must obtain an updated medical history, conform to the standard of care, and be licensed in Virginia, among other requirements. The law also says the prescription cannot be "determined solely by use of an online questionnaire".
While the Virginia law was something of a happy accident, Wishkovsky is hopeful that other states will follow Virginia's lead to protect telemedicine from the get-go.
"Virginia is the first state to pass these protections, and will serve as a blueprint for others that want to encourage telemedicine to flourish," he wrote. "As product builders, we didn’t anticipate that helping patients would be controversial, but it is clear that some industry players are interested in preserving the old way at any cost. Unfortunately the patients are the ones who bear that cost. So we have no choice — we’ll be there, across the country, engaging with legislators, regulators and groups that want to advance healthcare to protect patient’s interests and fulfill our mission of making healthcare simpler and more convenient."