Adam Crain

Fighting for Innovation

October 31, 2016

Adam Crain

Back in May we told you about the uphill battle that Opternative, a Chicago-based eye-care company, faced in the South Carolina General Assembly for the right to operate in the Palmetto State. Opernative, which enables customers to update prescriptions for glasses and contact lenses via telemedicine, was legislated out of existence here at the behest of lobbyists for traditional brick and mortar optometrists and opticians.

As you may recall, legislation banning this eye care technology was sent to Governor Haley, who thankfully promptly vetoed it. Then the General Assembly overrode Governor Haley’s veto, a move that the South Carolina Optometric Association praised the as a “safeguard for patients’ vision health.”[i]

But hold on. Opternative is already operating safely in 39 other states. That begs the question whether banning this technology in South Carolina is really about patient protection or is it, like Governor Haley said so well, about “using health practice mandates to stifle competition for the benefit of a single industry”[ii]?

Considering that Opternative limits their eye exams to patients between the ages of 18 and 50 – those who are at the lowest risk for eye health complications – and recommends a full, in-person, comprehensive eye exam every two years, it seems Opternative is fully up-front with patients about the limits of their service.

Ask anyone with contacts or glasses how annoying and expensive it is to be required every year to make an appointment, take time off of work, drive to the local optometrist, and sit in a waiting room, only to receive another prescription for the same contacts or glasses they have used for years. A traditional exam is costly too. According to Angie’s List, a popular website of consumer information, the average cost of an eye exam is around $100, nearly double the cost of Opternative’s home-based virtual service.

So is that the end of the line for Opernative? Will South Carolina refuse to protect the eye health of patients…and instead protect an existing industry from competition and innovation?  Maybe not.

Enter Institute for Justice.

The Institute for Justice, a national organization with a long record of championing Constitutional rights and limited government, is suing the State of South Carolina on behalf of Opernative.

In their case report, South Carolina Eyeglasses, the Institute for Justice argues that South Carolina’s Eye Care Consumer Protection Law violates the Constitution’s promise of due process and equal protection.  The report explains it this way:

“[South Carolina’s] Law violates the state’s due-process requirement because it is arbitrary; the ban on online eye exams serves no public health or safety purpose. To be sure, online eye exams like Opternative’s are not comprehensive eye exams – they do not look for signs of disease…but the technology is not meant to be a replacement for comprehensive eye exams.

The ban also fails the South Carolina Constitution’s test for equal protection of the laws….there is simply no reason to believe that it is more dangerous to let an ophthalmologist conduct exams over the internet than it is to let a dermatologist do so [which South Carolina already allows under the South Carolina Telemedicine Act].[iii]

Palmetto Promise Institute was a strong supporter of the bill that became our new Telemedicine law, and there’s no question that technological innovations like Opternative using telemedicine are lowering costs and changing the way health care is delivered.  The question is, will South Carolina patients be allowed to benefit?  We’ll keep you posted!

[i] “South Carolina Legislators Override Veto, Safeguard Patients’ Vision Health.” South Carolina Legislators Override

Veto, Safeguard Patients’ Vision Health. American Optometric Association, 19 May 2016. Web. 21 Oct. 2016.

[ii] “South Carolina Eyeglasses – Institute for Justice.” Institute for Justice. 20 Oct. 2016. Web. 21 Oct. 2016.

[iii] Ibid