SC Supreme Court upholds ban of online eye exams for glasses, contact lenses

COLUMBIA — South Carolinians who wear glasses or contact lenses will have to continue getting fitted for a new prescription at a professional’s office.

The state Supreme Court ruled unanimously Wednesday that a ban of online vision tests does not violate the state constitution.

The court’s ruling closed out a nearly decade-old lawsuit filed by Visibly, a Chicago-based telehealth company, formerly known as Opternative, which uses software that conducts vision tests over a person’s computer or smartphone so patients don’t have to make an in-person visit to an optometrist or ophthalmologist.

When using Visibly, the patient stands 10 feet away from a computer screen and verbally answers the questions posed by the vision test. Visibly then sends the recorded test to a licensed optometrist or ophthalmologist in the user’s state for review. A patient, age 18 to 55, had to previously have a lens prescription to be able to take the test.

The U.S. Food and Drug Administration cleared technology that’s in use in 35 states. But not in South Carolina.

Visibly provided its virtual vision test in the state from 2014 until 2016, when a law backed by the SC Optometric Physicians Association took effect and essentially banned the practice. Eye doctors can use the technology, but patients must still come into the office after the test for another eye exam, defeating the purpose of the service.

The Gov. Nikki Haley vetoed the law but the General Assembly overrode her objection in May 2016.

Visibly sued five months later, asking the courts to overturn the law as unconstitutional.

The courts disagreed, siding with the defense that legislators passed the law to “protect the public from receiving inadequate eye care,” Judge Kristi Curtis wrote in Jully 2024. Then a Circuit Court judge, Curtis now sits on the state Court of Appeals.

Lawyers for the company argued the only thing the law protects are the profits earned by optometrists when they sell glasses to patients at their office.

“If you’re not coming in, they’re losing that opportunity to make a sales pitch,” Visibly attorney Joshua Windham told the SC Daily Gazette.

“That’s what these companies always say in court,” said Dr. Kevin Campbell, chairman of the state optometrists organization.

“As professionals, we strongly believe that a patient’s eye health should never come down to a sales pitch,” he added.

Campbell, who practices at clinics in Hilton Head and Bluffton, celebrated the ruling.

“We know an in-person exam is the safest and most comprehensive form of care,” he said.

The state Supreme Court upheld the lower-court decision.

In the opinion, authored by Justice John Few, the court cited testimony from a pair of eye specialists — an optometrist and a neuro-ophthalmologist — who said requiring annual, comprehensive, in-office eye exams to renew a prescription is one way doctors can catch diseases, such as glaucoma, cataracts, macular degeneration and irritation caused by overwearing contact lenses, as well as diabetes, hypertension and autoimmune disorders.

While the optometrist group in the state pushed for the law, the state ophthalmologists organization did not share the same concern, said Dr. Kurt Heitman. Young, healthy patients with glasses don’t need to come into the office every year, he said.

“If the technology is accurate, it’s actually beneficial because it’s less expensive and increases access to care,” said Heitman, who practices in Greenville. “This is the new age we’re in. Technology is taking over and making things more accessible. If it increases access to care, how could you be against it unless you’re just trying to protect you’re revenue source.”

Lawyers for the company also argued the law treats eye specialists differently from other types of doctors who can prescribe nearly any other treatment, including eye drops, over a telemedicine call. The only explicit exceptions in state law are opioids, medication abortions, glasses and contact lenses.

“Glasses are not like opioids and abortion,” Windham, the Visibly attorney, told the SC Daily Gazette.

Few, in his opinion, drew the distinction that other forms of telemedicine involve photos and live video calls where physicians visually diagnose a patient’s condition.

“This approach still involves a direct evaluation of the patient’s physical symptoms. In contrast, prescribing corrective lenses based solely on a patient’s responses to an automated eye chart —without the eye doctor ever visually examining the patient’s eyes — is fundamentally different,” he wrote.

Windham blasted the ruling as “an abdication of the court’s duty.” He said the law was “tailor made to destroy one company just to protect an out-dated business model from competition” and “the South Carolina Supreme Court just blessed that.”

“It’s a naked abuse of governmental power,” Windham said.

The justices did give a nod suggesting the Legislature should give the law another look as telemedicine has become more commonplace.

“In light of the speed in which artificial intelligence and other technology continues to develop, we are confident the General Assembly will continue to monitor the policy rationale behind the Eye Care Consumer Protection Law,” Few wrote at the end of his opinion.

Editor’s Note: This article has been updated with additional information from the SC Optometric Physicians Association.