People learned during the COVID pandemic that getting limited care online via telemedicine can be a great way to expand access, especially in rural areas. But Visibly, founded in 2014, was ahead of the curve.
The Chicago-based company invented technology that lets people renew eyeglass prescriptions from home or anywhere with an internet connection. No appointment is necessary, no driving, and no waiting in a lobby. Licensed ophthalmologists review results and renew prescriptions remotely if they feel it would be safe.
This FDA-cleared technology could be a time-saver in South Carolina. Most states allow two-year prescriptions. The duration in Florida is five years. But prescriptions expire every year in South Carolina, a rule that forces extra visits to eye clinics.
This is great for business if you happen to be an eye doctor selling lenses and frames. But the rule is not so great if you happen to be a busy South Carolinian with near-sightedness.
Visibly was available in South Carolina until 2016, when state lawmakers passed a protectionist rule written by optometrists to fence out online competition. The South Carolina Optometric Physicians Association (SCOPA) led the campaign.
SCOPA drafted a bill targeting Visibly, then called Opternative. Lobbyists then found sponsors, drummed up support, and passed legislation forbidding prescriptions based on online vision tests.
Former South Carolina Gov. Nikki Haley saw through the power play and tried to stop it. “I am vetoing this bill because it uses health practice mandates to stifle competition for the benefit of a single industry … putting us on the leading edge of protectionism, not innovation,” she wrote.
SCOPA celebrated privately when a supermajority of lawmakers overrode the veto. “[T]ake that Opternative!!!!!!” SCOPA’s leadership wrote in a membership email. “It’s with the utmost pleasure to announce that Opternative and ‘eye exam’ kiosks are now PROHIBITED BY LAW in the great state of SC!”
Months later, when the American Optometric Association asked SCOPA to present what it had achieved with other state affiliates, SCOPA prepared a PowerPoint slide that showed Opternative’s name crossed out with a red circle and backslash—the universal symbol of cancellation.
A protracted legal battle ensued. On July 18, 2024—after eight years and one trip to the South Carolina Supreme Court—a state trial court granted SCOPA’s motion for summary judgment and declared the protectionist law constitutional.
Visibly appealed on Aug. 15, 2024, and will return once again to the South Carolina Supreme Court. Our public interest law firm, the Institute for Justice, represents the company. Health care providers nationwide should pay attention to the dispute. So, should policymakers be tempted to come between doctors and patients?
Medicine is big business. Some hospital conglomerates pull in more than $300 billion annually. But nothing should matter more than patient welfare. Whether people need routine vision tests or something more, they deserve choices like any other customer in a market—even one as bogged down by regulations as health care.
Established providers often use political pull to limit options instead. Stopping a company like Visibly from using technology to connect doctors and patients online is just one example. Industry insiders also use certificate of need laws to protect their turf.
This regulatory tool, informally called a “CON,” requires special government permission to open or expand services. Health and safety are not the concerns. CON boards focus exclusively on money.
They grant or deny CON applications—or even refuse to consider applications—based on the business concerns of existing providers. Some states even let existing providers participate in the CON review process, giving them veto power over potential rivals.
South Carolina previously played this game, but the state repealed most of its CON laws in 2023. Twelve other states, including California and Texas, have eliminated their CON regimes entirely.
Other protectionist schemes are common. Health systems need revenue to survive. But policymakers should not choose winners and losers. Nor should they punish innovation from companies like Visibly.
Doctors and patients can decide for themselves what treatment is best, if states will let them. This is the prescription for healthy competition.
Joshua Windham is an attorney. Daryl James is a writer.
