Online refractive eye exam company Visibly, formerly called Opternative, has filed a complaint in Indiana seeking to overturn a law prohibiting providers from prescribing corrective lenses via telemedicine in the state.
The suit, filed in Indiana’s Marion County Superior Court, names The Medical Licensing Board of Indiana and the Indiana Professional Licensing Agency, as well as several officials from those agencies, as the defendants.
According to the suit, doctors in Indiana are able to prescribe “virtually all” medications and medical devices with the exception of opioids, abortifacients and corrective lenses.
The law in question, was put in place in 2016, legalizing telemedicine — including vision services.
“In 2016, recognizing the clear public benefits of telemedicine, Indiana enacted a general Telemedicine Law to officially allow certain health-care providers, including ophthalmologists and optometrists, to integrate telemedicine into their practices,” reads the suit obtained by the Indiana Business Journal.
Visibly’s suit argues that the ban on corrective lenses was put in place to protect optometrists from competition.
“The purpose of banning Visibly’s technology, rather, is to protect brick-and-mortar optometrists from competition,” the suit reads.
The suit goes on to say that the law goes against the Indiana Constitution, which “forbids the legislature from imposing arbitrary, irrational, and protectionist restrictions on the right to earn an honest living.”
In the court documents, Visibly alleges that between 2015 and 2016, the company administered between 60 and 70 refractive tests in Indiana. But after the telemedicine law went into effect, doctor’s could no longer use the technology to prescribe.
WHY IT MATTERS
As telemedicine grows in popularity and legitimacy, legal questions continue to reappear. But lawsuits, as well as state legislation, have been instrumental in setting up the precedent for these types of services.
Notably Teldadoc was in a long lawsuit with Texas State Medical Board before the state of Texas passed a telemedicine law abolishing the requirement that a patient-physician relationship be established with an in-person visit before telemedicine could be use. The passing of this law essentially ended the lawsuit.
WHAT'S THE TREND
Visibly has been involved in similar lawsuits in the past. Last January, a South Carolina judge dismissed the company’s case against the South Carolina Board of Medical Examiners and Department of Labor, Licensing and Regulations, which alleged that a newly passed law restricting online eye exams was protectionist, unconstitutional legislation. The suit was dismissed on the grounds that the company had failed to demonstrate a proper standing — a personal stake in the lawsuit.
While South Carolina clamped down on telemedicine for eye care, the state of Virginia proactively passed a pro-telemedicine bill in 2017, that protects the rights of optometrists and ophthalmologists to see patients and issue prescriptions through telemedicine. Visibly was one of the telemedicine companies working on that suit.
Visibly has been involved with other kinds of lawsuits as well, in October of 2017, when the company still went by Opternative, it filed a lawsuit against Warby Parker in New York District Court, alleging that the latter’s Prescription Check offering was based on proprietary information and technology obtained from Opternative under a nondisclosure agreement.
In 2017 the FDA sent the company a warning letter making it clear that it considers the company’s online eye exam to be a mobile medical app that requires premarket clearance. When the letter was sent the company’s product was registered as a Class 1 device, but not cleared, an option for some low-risk devices.